& Ors Vs. State of Bihar  INSC 216 (1 August 1990)
Beevi, M. (J) Fathima Beevi, M. (J) Kuldip Singh (J) Sawant, P.B.
1990 SCR (3) 572 1990 SCC Supl. 521 JT 1990 (3) 317 1990 SCALE (2)151
Penal Code: ss. 34, 302 & 394--Identity of as- sailants--Testimony of P.W.
suffering from serious infirmi- ties casting reasonable doubt--Benefit of doubt
to be given to accused--Appellants acquitted.
appellants were convicted for offences under ss. 302,394 and 34 IPC. They were
alleged to have entered the house of the deceased at midnight and attacked him and his wife, PW 14, with sharp edged
weapons. He sustained fatal injuries and died instantaneously. His wife was
two sons ran to the house of uncle PW-1, at a distance to inform him of the
incident. They had not seen the assail- ants. By the time PW- 1 reached the
scene the assailants had fled. He had been in the house the whole night and
contacted all the concerned persons. In the FIR that he lodged at about 10 a.m. the next morning the assailants were not named.
prosecution case was that the appellants had commit- ted the crime on account
of enmity. PW-14, who claimed to be an eye witness, deposed that she had
identified the appel- lants. She also stated that she became unconscious and
regained consciousness only the next day when the police arrived. PW-1
supported her version.
trial court accepted the testimony of PW- 14. The High Court agreed with it.
this appeal by special leave, it was contended for the appellants that if PW-14
had identified the assailants, it would have been possible for PW-1 to disclose
the identi- ty of the accused at the time the first information report was
lodged, and-that the prosecution had introduced the theory of unconsciousness
of PW-14 only in an attempt to explain away the lacuna- Allowing the appeal,
1. It is not safe to sustain the conviction when there is 573 reasonable doubt
regarding the participation of the appel- lants in the crime. The benefit of
doubt must necessarily go to them.
statement of PW-1 at the earliest point of time belies the truth of what he had
deposed before the court. He had been categoric in the FIR that he had made
enquiries with the wife and sons of the deceased before proceeding to the
police station and asserted that five or six unknown persons had committed the
crime. He had also stated that details could be furnished by the widow and sons
of the deceased. This affirmed that he could not gather any useful information
regarding identity of the assailants. All the same, in cross examination he
supported the version of PW-14 that she was lying unconscious when he reached
the house at night and she narrated the incident after regaining con- sciousness
when the police reached there. It clearly indi- cates that an attempt had been
made by the prosecution to introduce the case of unconsciousness of PW-14 to
explain the infirmity. [576F; G]
circumstance that the identity of the assailants was unknown until the police
arrived at the scene showed that PW-14 or her children had not identified the
assailants at the time of the occurrence. The courts below have failed to
appreciate her evidence in the correct perspective in the light of the clinching
APPELLATE JURISDICTION: Criminal Appeal No. 96 of 1979.
the Judgment and Order dated 9.11.1977 of the Patna High Court in Criminal
Appeal No. 332 of 1971.
J .M. Khanna
for the Appellants.
for the Respondent.
Judgment of the Court was delivered by FATHIMA BEEVI, J. This appeal by special
leave is di- rected against the judgment and order dated 9.11.1977 of the High
Court of Patna whereby the conviction and sentences of the appellants for the
offences under Sections 302,394 and 34, I .P.C., have been confirmed.
three appellants are brothers. The deceased, Bigna Bedia, lived with his wife Sohagia
Bedia and sons in village Karmatola. The incident happened on the night of
5/6.9. 1968. Bigna was sleeping 574 along with his son Jhalku in the verandah
while Sohagia was sleeping along with Malku on cot. At about midnight, the intrud- ers entered the house by cutting the tatti
and attacked Sohagia and her husband. Binga Bedia sustained fatal injuries and
died instantaneously. Sohagia was injured. The intruders took away the utensils
and two she-goats kept at one end of the verandah. Jiwan Bedia, the brother of
the deceased, on being informed by Jhalku and Lalku about the incident reached
the house and after making enquiries, he lodged the first information report at
the police station at about 10.00 A.M in
the next morning. The crime was registered against unidentified persons. In the
course of the investigation these appellants were arrested and were finally charge-sheeted.
had been ill-feeling between the appellants on the one hand and the deceased
and his wife on the other, though the appellants are the sons of the eider
sister of Sohagia.
prosecution case is that on account of enmity, the three appellants committed
the crime. Sohagia claimed to be an eye witness. According to this witness, the
three appellants were armed. Gurja had a tangi, Birja had a lathi and Mukund
had a pharsa. On entering the house Gurja and Birja dealt blows on Sohagia with
the weapons they had. She got injured and cried. On hearing the alarm, the
deceased was awakened from sleep and when he was trying to get up, all the
three appellants left her and killed her husband. P.W. 14 asserted that Gurja
had been flashing a torch and that she had iden- tified all the three
appellants. She also stated that she became unconscious and regained
consciousness only the next day when the police arrived at the scene. According
to the prosecution, P.W. 14 is the only eye witness. Lalku and Jhalku who ran
to the house of P.W 1 had not seen the as- sailants. The trial court accepted
the testimony of P.W. 14 corroborated by the medical evidence and other
circumstances as the basis for the conviction. The High Court agreed with the
trial court in holding that the prosecution has succeed- ed to bring home the
guilt of all the appellants.
learned counsel for the appellants urged before us that the testimony of P.W.
14 suffers from serious infirmi- ties casting reasonable doubt as to the identity
of the assailants and the conviction is therefore unwarranted. The
circumstances relied on by the learned counsel is that in the first information
report the identity of the accused had not been revealed. It is argued that if
P.W. 14 had identi- fied the assailants, it would have been possible for P.W. 1
to disclose the identity of the accused at the time the first information
report was lodged and the circumstances are such that the statements 575 of
P.W. 14 are inspired and the prosecution has introduced the theory of
unconsciousness of P.W. 14 only in an attempt to explain away the lacuna. To
appreciate this contention, it is necessary to scrutinise the first information
report in detail. P.W. 1, Jiwan Bedia, is the full brother of the deceased. He
has been residing in village Jawabera which is at a distance of about half a
kilometer from Karmatola.
and Jhalku reached his house at about midnight and raised hulla that some thieves had entered their house and killed
their father and were also killing their mother. On hearing this, P.W. 1 got up
and went to village Jawabera where he informed his gotias about the incident.
Then taking Sawna Bedia, Jhopra Bedia and others along with him he went to the
house of Bigna Bedia. There he did not find any thief. On entering the house,
he found Bigna Bedia lying dead with bleeding injuries on his head and legs.
The wife of Bigna was also injured with a cut injury on her face. He learnt
there from the wife and both the sons of Bigna that 5 or 6 persons had entered
the house by cutting the tatti and had inflicted injuries on Bigna and his wife
with tangi, bhujali etc. and they also removed the lock and peg and took away
utensils and two she-goats from the house. P.W. 1 then went to the villagers of
Karmatola and told them about this incident. P.W. 1 also contacted the Mukhia
of the village Hindebilli and others before going to the police station.
in narrating the incident in the Fard byan stated that he learnt from the wife
and sons of the deceased that 5 or 6 persons had entered the house and
committed the crime and details could be furnished by the widow and the sons of
1, no doubt, in cross-examination supported the version of P.W. 14 that Sohagia
was lying unconscious when he reached the house at night and she narrated the
incident after regaining consciousness the next day when the police reached
statement of P.W. 1 at the earliest point of time belies the truth of what he
has deposed before the court. He had been categoric that he made enquiries with
the wife and sons of the deceased before proceeding to the police station and
asserted that 5 or 6 unknown persons had committed the crime. It clearly
indicates that an attempt had been made by the prosecution to introduce the
case of unconsciousness of P.W. 14 to explain the infirmity. It may be that
P.W. 14 on account of the shock could not have been so eloquent and depressed,
but P.W. 1 had been in the house the whole night and he had contacted all the
concerned persons and also made enquiries. The statement in Ex. p. 6 that
details would be given by the wife and sons who were present in the house also
affirms that he could not gather any 576 useful information regarding the
identity of the assailants.
courts below have failed to appreciate the evidence of P.W. 14 in the correct
perspective in the light of the clinching evidence in the case. The circumstances
that the identity of the assailants was unknown until the police arrived at the
scene is clear indication that P.W. 14 or her children had not identified the
assailants at the time of the occurrence. It could be that on account of enmity
and ill-will their suspicion has turned against these appellants and inspired
by that suspicion, the investigation had been misdirected.
not therefore consider it safe to sustain the conviction when there is
reasonable doubt regarding the participation of the appellants. The benefit of
doubt must necessarily go to the appellants.
result, the appeal is allowed. The convictions and sentences are set aside. The
bail bonds shall stand canceled.