Patna High CourtChotan Nonia And Ors. vs The State Of Bihar on 2 November, 1998Equivalent citations: 1999(1)BLJR310Author:P.K. SarkarBench:P.K. SarkarORDER1. All the five appellants in this appeal are own brothers and they are residents of village Najardih Tole Balchand Bigha, P.S. Nawadah in the district of Nawadah. Informant Tori Nonia along with his wife and grand son lived in the same Tole of the same village. In the night between 16-17th April, 1985 Tori Nonia was sleeping on Osara of his house while his wife Kunti and grand son Radhe Shyam were sleeping in the room adjacent to Osara. His son was employed somewhere in Dhanbad on the relevant date. His son used to send money to his father from time to time.2. In the night at about 1.00 a.m. Tori Nonia noticed two persons entering his house through the window of mud wall of his house. Both the miscreants reached where Tori Nonia was sleeping and started pressing his neck to which Tori Nonia protested, whereupon miscreants caused injuries on his neck hand etc. He raised alarm whereupon his wife Kunti Devi and grand son Radhe Shyam, who were sleeping inside the room woke up. Kunti Devi spoke loudly "Re Jodhiya Lakhna Tohra Budhwa Ka Bigarle Ho Ki Okara Marte Het (what the old man has done to Jodhiya and Lakhna that they are assaulting him). The two intruders were not identified by Tori Nonia when they were pressing his neck. He could know their identity when his wife shouted as aforementioned. Thereupon Lakhan and Jodhiya, who were carrying knife left Tori Nonia and went inside the room where Kunti Devi was sleeping. Tori Nonia remained in the varandah. He could see appellants Lakhan and Jodhiya inflicting chhura blow on his wife. Thereafter both the appellants broken the door and fled outside. Remaining three appellants, namely, Chotan Nonia, Sarhan Nonia and Kailash Nonia were seen standing outside the house of Tori Nonia. This is the prosecution case as disclosed by Tori Nonia in his fardbeyan to the Officer-incharge, Nawadah Police Station. Tori Nonia went to the Police Station on the next day at 10.00 a.m.3. Facts revealed in the fardbeyan made out a simple case of murder and assault. It is noteworthy that according to Tori Nonia in his fardbeyan, the culprits were identified in torch light of the accused and Diya burning in the room. Tori Nonia did not state that he disclosed the names of the appellants to other villagers, who must have come after the occurrence.4. Md. Muslim (P.W. 6) was Dafadar of the village at the relevant time. He was informed by one Gurudayal Nonia about the occurrence. Dafadar visited the house of Tori Nonia and found the dead body of the deceased. This witness deposed that he sent Tori Nonia and Choukidar Raghu Paswan to inform at the Police Station about the occurrence. He remained there to watch the dead body. This witness had gone to the house of Tori Nonia early in the morning but Tori Nonia or any member of his family did not disclose the names of the appellants or any body. He is a charge-sheet witness.5. Raghu Paswan (P.W. 7), who was Choukidar, has stated that when he interrogated Tori Nonia and asked the names of the assailants. Tori Nonia frankly stated that he did not know their names. He along with Tori Nonia went to the Police Station where Tori Nonia gave his fardbeyan. This witness was declared hostile. Choukidar has deposed that once a dacoity was committed in the house of the accused persons in which grand father of the appellants was killed. He also stated that accused persons also visited the house of Tori Nonia in the morning and they had not absconded.6. The conviction of the appellants mainly hinges on the testimony of Radhey Shyam Nonia, grand son of Tori Nonia, who was sleeping along with his grand mother in a room. Tori Nonia was sleeping in the Osara. It was not possible for any body to see what was happening in the room from the Varandah where Tori Nonia was sleeping. The child witness says that he identified Lakhan and Jodhi assaulting his grand father and when his grand mother protested, Lakhan and Jodhi both inflicted knife injuries on the old lady. This witness says that he identified these two appellants in the torch light of Jodhi and clay lamp which was burning. He also saw other three appellants standing outside. This witness claims to have seen the appellants running away after the occurrence. He also said that Tori Nonia had disclosed that Jodhi and Lakhan has killed his wife and caused injuries to him. This witness stated that a lantern was burning in the room where the deceased was sleeping which is contrary to the statement of the eye-witness Tori Nonia. This witness has admitted that the assailants were not carrying torch when they reached the house of Tori Nonia.7. Horil Nonia (P.W. 1) also claims to be eye-witness. He deposed that he identified the appellants running away from the house of Tori Nonia in the torch light. This witness denied the suggestion that the appellants Jodhi, Lakhan and Kailash live with their father in Bengal. He also denied that Chotan and Barhan read in school.8. Tori Nonia (P.W. 4) the informant has stated that at the time of occurrence, he was sleeping on the Osara of his house. According to the F.I.R., two persons came to him and started pressing his neck. In his fardbeyan, he did not say that he identified two persons. His evidence shows that he identified Jodhi and Lakhan in the lantern light which was hanging between his bed and bed of his wife, who was sleeping in another room. His son is employed in a brick kiln from where he used to send money to his father. The culprits carried away his money and cloths and also attempted to carry away ornaments. This witness stated that he had no enmity with the appellants from before. The Chaukidar came in the morning but he did not disclose the names of the appellants to him. He admitted that his eye sight is poor. He told the Chaukidar that decoity was committed in his house. It is noteworthy that this witness had stated before the Police that the appellants had fled away after committing murder of his wife and assaulting him. He also admitted that there was enmity in between them from before. This witness has also admitted that the appellants are well to do persons and they had four bullocks. In the last paragraph of his deposition he stated that the miscreants had made a hole in the wall.9. Dr. Bindeshwari Prasad (P. W. 9), Civil Assistant Surgeon, who performed autopsy on the dead body of the deceased, has expressed that the deceased was victim of homicide. There was one incised wound 2 1/2" × 1/2" in the middle of the neck, which was caused by sharp and penetrated weapon. There were multiple haematoma on the face and scalp and neck caused by hard and blunt substance. According to the opinion of the doctor, death was due to hemorrhage and shock.10. Dr. Ajoy Kumar (P.W. 2) found abrasions and lacerated wounds on the person of the injured Tori Nonia.11. Evidence of the I.O. Ram Ashish Singh (P.W. 8) is that he visited the house of the informant after recording his Jardbeyan. He found that the western mud wall of the room was broken 21/2 ft. in length and 21/2 ft. in width, and soil was found on the floor. A Diya was found in the room where the deceased was sleeping. He did not seize any Diya or lantern. Horil Nonia (P.W. 1) had not stated before him that he had seen the appellants in the torch light. Radhe Shyam Nonia had also not stated before this witness that he identified appellants Lakhan and Jodhi in the torch light. He had also not stated that Lamp or Dhibri was burning in the room. He had said that a Diya was burning in the room. The informant deposed that Tori Nonia had not stated before him that the dacoits had looted away household articles nor he had stated that he was sleeping in the Osara. He had also not stated that his grand son was sleeping by the side of his wife on the cot. Tori Nonia had not stated that Lakhan and Jodhi had started pressing his neck. He said that his wife said that Lakhan and Jodhi were beating Tori Nonia.12. On analysis of the evidence, we find that Tori Nonia in his fardbeyan had suppressed the fact that dacoity had been committed in his house after brutally murdering his wife by the dacoits. No enmity was suggested in his evidence. The accused persons accepted that there was dispute between Tori Nonia and the appellants for cutting Aari. The occurrence took place at 1.00 a.m. in the night when all inmates were sleeping. Two of the culprits first went to Tori Nonia and started assaulting him. He could not identify the culprits. It is not possible to believe that his wife who was sleeping elsewhere had identified Jodhi and Lakhan. Tori Nonia himself could not identify them. The evidence of the other eye-witness Radhe Shyam Nonia does not appear to be convincing. Radhe Shyam Nonia repeated the exact words spoken by Tori Nonia that two of the appellants were identified by the deceased lady. The Investigating Officer also in his deposition stated that the dacoits cut a Sendh in the house of Tori Nonia and they had carried away money and cloths. It appears that dacoity was committed in the house of the informant Tori Nonia and appellants were implicated due to suspicion. No independent witness was examined to corroborate the claim of the informant and Radhe Shyam Nonia that they had identified the appellants. The Dafadar, who is an independent witness and has not been declared hostile has categorically stated that neither the informant nor any member of his family revealed the names of the assailants.13. In view of these infirmities, we are constrained to differ with the findings of learned Sessions Judge, who has convicted the appellants, and we record that the case against the appellants is not free from doubt and they are entitled to benefit of doubt.14. We accordingly allow this appeal and set aside the conviction of the appellants and acquit them of the charges giving them benefit of reasonable doubt. The appellants are on bail. They are discharged from the liability of their bail bonds.