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2000 DIGILAW 884 (PAT)

Mohan Pandey v. State Of Bihar

2000-07-18

B.N.SINGH

body2000
Judgment B.N.Singh "Neelam", J. 1. This criminal appeal is so preferred under Sec. 374(2) of the Code of Criminal Procedure by the sole accused-appellant, namely, Mohan Pandey, against the judgment of conviction and sentence so passed by the 7th Addl. Sessions Judge, Arrah, dated 19th of July, 1989 in Section Tr. No. 377 of 1988 by virtue of which the sole accused-appellant is convicted under Secs. 455 8B 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years u/s. 355 of the I.P.C and R.I. for seven years under Sec. 307, I.P.C. The sentences so imposed are directed to run concurrently. 2. The prosecution case, in short, is that on 1.5.1988 when the first informant, namely, Smt. Anita Kumari was sleeping in her parents house at about 4 a.m. in the morning her mother had left the house for performing Puja at Brahmpur and had locked the house from outside throwing the key on the roof of the house. When on the first floor, as per the prosecution story, the first informant Anita Pandey was sleeping and at that time, there was no other family member in the house the said key was so given by the mother of the first informant by throwing the same on the roof which was so received by her and after the departure of the mother Anita Pandey slept but within ten minutes on finding movement of some persons she got up and could locate the sole accused-appellant Mohan Pandey scaling and coming over the roof of her house-house of the sole accused-appellant, as claimed, being next to the house of the first informant and at that time, according to the first informant, the sole accused-appellant was armed with dagger which he started hurling on her with an intent to do away with her life. In a bid to save her life, she wanted to catch hold of the dagger as a result of which there was cut-marks on her fingers. She also claims to have made hue and cry by fighting with accused-appellant, who was going to kill her and several persons assembled on the ground floor in front of the house of the first informant and the accused-appellant the managed to flee away by scaling the wall of the roof and jumping into the roof of his own house. She also claims to have made hue and cry by fighting with accused-appellant, who was going to kill her and several persons assembled on the ground floor in front of the house of the first informant and the accused-appellant the managed to flee away by scaling the wall of the roof and jumping into the roof of his own house. The key of the house which was thrown by her when Vishwanath Pandeys wife is said to have opened the door and the neighbours assembling along with her could see and locate the informant having stabbed injuries on her person the being sent to Referral Hospital for treatment where her fared-beyan was so recorded and the police station case was so registered. 3. After due investigation, police submitted a charge-sheet against the sole accused-appellant and on the basis of that taking cognizance the case record got committed to the Court of Sessions; the accused-appellant got charged under Sections 455/307 of the I.P.C. for his committing lurking house-trespass by entering into the building in possession of Anita Pandey and used as dwelling house and in that course making the preparation for causing hurt to the first informant ever assaulting her with dagger with such intention and under such circumstances that if by that act, he would have caused of her death would have been guilty of causing murder of the first informant, an offence coming under the purview of Sec. 307 of the I.P.C. The accused-appellant denied of committing the offence, as alleged, and claimed to be tried. 4. In course of trial, it transpires, altogether eight prosecution witnesses have been examined on behalf of the prosecution. Two D.Ws. have also been examined on behalf of the defence. In the statement under Sec. 313, Cr.P.C. the accused-appellant completely denied of committing any offence rather has claimed false implication because of the previous animosity so coming on, as also detailed in the F.I.R. The learned court below, it further transpires, after evaluating the evidence available on the record came to the conclusion with regard to the prosecution in course of trial bringing home the charges so levelled against the sole accused-appellant as a result of which he was so convicted and sentenced, as detailed above, against which this criminal appeal is so preferred. 5. 5. The learned Counsel appearing on behalf of the appellant has submitted at the very outset that as regards the first informant sustained injury on that night at her house is not under challenge which was not also so challenged in course of trial but the point which was and which is for consideration is that whether the present accused-appellant can be said to be the perpetrator committing the offence, in the background of the facts and circumstance of the case. In support of his contention, it is further submitted that, as far as the present accused-appellant is concerned who in no way is involved in committing the offence coming under the purview of the Secs. 455/307 of the I.P.C. It is also submitted that from before the informant and the informants family were carrying grudge against the present accused-appellant and when she was injured by some other person taking a chance the present accused-appellant is falsely implicated as to take revenge for the grudge the family was carrying. With regard to the identification of the accused-appellant committing the offence, as alleged, it is further pointed out that except the first informant, no other witness has come forward to support the prosecution case. That being the position, the solitary evidence of that first informant figuring as P.W. 4 on no account can be said to be trustworthy as to hold the accused-appellant guilty of committing the offences coming under the purview of Secs. 455/307, I.P.C. Since the animosity coming on between the family members of the informant with that of the sole accused-appellant is very much admitted in the F.I.R. itself, it is because of the same that the accused-appellant, as submitted, is falsely implicated. Surprisingly enough, it is also pointed out that nowhere in course of trial the prosecution had given the explanation for the non-examination of particularly the informants mother who is said to have left for attending Barahampur Mela in the morning hours looking her daughter the first informant inside the house and as alleged throwing the key from outside of the said lock at the roof of the house which is said to have been received by the first informant. Her mother would have been the most competent witness on this point as to whether the first informant was left alone on that morning being locked from outside but the informants mother reason best known to the prosecution has not been examined. Secondly, it is pointed out that out of the two witnesses supporting the prosecution version with regard to their hearing, the first informant crying naming the accused-appellant to be the person inflicting dagger injuries on her person figuring in course of trial as P.Ws. 1 & 2, namely, Lallan Pandey and Chankey Pandey. When they were so examined in course of investigation before the police under Sec. 161 Cr.P.C. they had not uttered a single word with regard to their hearing the voice of the first informant crying for help naming the accused-appellant to be the person inflating injuries upon her. This is very much clear as submitted by going through the evidence of Investigating Officer of this case, who figures as P.W. 8, namely, Ayodhya Prasad Singh, with that of the attention of P.Ws. 1 and 2 so drawn in course of cross-examination to this effect and the I.O. in clear words stating with regard to P.Ws. 1 and 2 not giving the details with regard to the first informant naming the accused-appellant to be person assaulting when she cried for help. That goes to show, as submitted, that it is in the course of trial that the prosecution had tried to develop the story by inserting this fact as coming from the mouth of P.Ws. 1 and 2 for the first time which would not have been relied upon by the learned Court below and, thus, conviction relying on the same can well be said to be bad in law. It is also pointed out that the prosecution in course of trial had also not given the account with regard to the situation which led the first informant, a lady aged about 16-17 years to be alone at that time and it was incumbent on the part of the prosecution to give the details of the distance of the place of occurrence with that of site of the Barahampur Mela where the informants mother is said to have gone at the same time would have detailed the circumstance relating to the presence of P.Ws. 4 father not being present in the house at the night which has also not so been done in this case. It is also pointed out that the learned Court below has erred in relying on the material Exhibits I to III which are the garments said to have been on her person at the time of occurrence. In the back ground of the fact that those garments were so produced for the first time by P.W. 4, the first informant in course of trial that too after recalling her when she was at previous occasion discharged, no reliance would have been placed so that by going through the evidence of the material prosecution witnesses, it will also transpire that no other means of identification is so shown by the prosecution except informant and some of the witnesses claiming the said night to be the full moon night but in course of trial other witnesses, on the other hand, had claimed the said night to be a dark night. The major contradiction on this point also would have been considered by the learned Court below but very lightly the learned Court below has passed the judgment of conviction without applying his mind as to whether there was sufficient light facilitating the first informant as to identify the sole accused-appellant, Another important witness would have been Vishwanath Pandeys wife, who is said to have opened the door after unlocking the same. Surprisingly enough, she has not been examined from prosecution side rather she had appeared as D.W. 1, who is very specific in saying that when she had unlocked the door the first informant had not given the name of the accused-appellant to be the person assaulting her. Out of the eight prosecution witnesses so examined on behalf of the prosecution, it is pointed out that P.Ws. 3 & 5 are tendered. P.W. 4 is the informant. P.Ws. 1 & 2 are on the point of occurrence to the extent of their arriving at the house of the first informant after the first informant making hue and cry. P.W. 6 is the witness, who claims to arrive at the P.O. after occurrence. P.W. 7 is the medical officer preparing injury report which is so duly proved and P.W. 8 is the investigating Officer of this case. P.W. 6 is the witness, who claims to arrive at the P.O. after occurrence. P.W. 7 is the medical officer preparing injury report which is so duly proved and P.W. 8 is the investigating Officer of this case. By going through the evidence of P.W. 8 it transpires that at para 12 though he has stated with regard to his finding some sign on the wall by which the accused-appellant is said to have scaled to the roof of the first informant but that was not incorporated in the case-diary at paras 14 & 15 of deposition of P.W. 8 as also detailed is specific in stating with regard to P.Ws 1 and 2, namely, Lallan Pandey and Chankey Pandey not stating before him with regard to Anita (first informant) in course of her crying for help named the accused-appellant to be the person assaulting her. Under the circumstances and also in the background of the grounds so detailed in this memo of appeal prayer is that the judgment of conviction and sentence so passed against the sole accused-appellant, namely, Mohan Pandey be thus, set aside and the accused-appellant rather be acquitted. 6. The learned A.P.P. representing the State, on the other hand, has submitted that as regards the good number of injuries so sustained by Anita Kumari on that night has been duly established which would be so apparent by going through the injury report and the corroboration so found in the prosecution story so put forward by lodging F.I.R. by the first informant with that of the evidence of the medical officer that has also not been challenged and accepted even by the defence side. As regards the participation of the accused-appellant to be the person inflicting such injuries on the person of the informant in an attempt to do away with her life and that being so done after lurking house-trespass, it is pointed out that the house of the accused-appellant was next to the house of the first informant and, that being the position, it was very much probable for him as to scaling wall and jumping on the roof of the house of the first informant where she was sleeping and to inflict injuries. In this connection, it is also pointed out that when the door was so opened by Vishwanath Pandeys wife (D.W. 1) she narrated giving the name of the present accused-appellant to all the persons assembling and that was sufficient as to hold by the learned Court below of the present accused-appellant participating and committing the offences coming under the purview of Secs. 455/307 of the I.P.C.. That being the position as submitted, there is nothing wrong in the impugned judgment of conviction and sentence so passed which rather be affirmed. 7. After hearing both side lawyers, taking into consideration the facts discussed above also in the background of the oral and documentary evidence available on the record, I hold that as far as the first informant said to have been injured on that night at about 4 a.m. while she was sleeping in her house that had been very much established by the prosecution in course of trial. The crucial point for decision is as to whether there was sufficient material before the learned Court below as to hold that the present accused-appellant was the person, who inflicted such injuries on her? While analysing the evidence so pouring in on this point, 1 find that in the case like this as situated, it is only to be seen as to whether the solitary evidence of P.W. 4, i.e. the first informant is so much consistent and trustworthy as to hold him guilty for the offences under which he stood charged or not? True, it is that evidence has to be weighed and not to he counted but it has also to be seen as to whether the evidence of P.W. 4 can be said to be wholly reliable and if it can be categorized that the evidence of P.W. 4 is neither wholly reliable nor unreliable, in such circumstance, the corroboration in material particulars by reliable testimony is to be looked into in the present case. The informant and the informants family carrying grudge against the accused-appellant is admitted as detailed in the F.I.R. itself giving probability of the accused-appellant being falsely implicated. P.Ws. The informant and the informants family carrying grudge against the accused-appellant is admitted as detailed in the F.I.R. itself giving probability of the accused-appellant being falsely implicated. P.Ws. 1 & 2 claimed with regard to the first informant at the time of assault being inflicted on her naming the accused-appellant to be the person assaulting her at the time of their giving statements under Section 161, Cr.P.C. before the investigating agency, i.e., so apparent by locking into the evidence of P.W. 8. The I.O. and the attention on this point being drawn by the defence lawyer in course of trial that goes to show that except after the door being unlocked the first informant naming the accused-appellant prior to that not uttered the name of accused-appellant at the time of crying for help which she narrated for the first time in course of trial. The non-examination of the mother of the informant is also conspicuous and the sinister silence on the part of the prosecution has to be marked. The material exhibits so relied upon were not so seized for produced by the informant at the time of investigation rather it is so produced after a period of long gap at the time of trial which diminishes the evidentiary value. With regard to the such production of the garments said to have been so used by the first informant at that time, the source of identification is also not much detailed except the first informant claiming the said night to be moon light some of the witnesses claiming the said night particularly, the period when the occurrence took place to be dark night. P.W. 1, the wife of Vishwanath Pandey, who is said to have opened the door, though named as prosecution witness in the charge-sheet has been examined as P.W. 1 and she is specific in saying with regard to the first informant not naming the accused-appellant to be the person inflicting injuries on her. All these materials so pouring in create serious doubt with regard to the participation of the accused-appellant in the commission of the offence under which the stood charged the benefit of which in my considered opinion, in the background of the facts and circumstances, must go to the accused. All these materials so pouring in create serious doubt with regard to the participation of the accused-appellant in the commission of the offence under which the stood charged the benefit of which in my considered opinion, in the background of the facts and circumstances, must go to the accused. Taking that view and also holding that the solitary evidence of P.W. 4 is not such a nature as to be wholly relied upon without calling for corroboration as a rule of prudence, conviction under such circumstance of the accused-appellant, as detailed above, requires interference and though holding of the first part of the occurrence with regard to interest informant being injured stood proved in course of trial but the other part with regard to the present accused-appellant participating has not been proved in course of trial by the prosecution up to the hilt and taking that view the judgment of conviction and sentence so passed against the accused-appellant, thus, stands set aside and rather he is hereby acquitted. 8. This criminal appeal succeeds. The sole accused-appellant is on bail, who is discharged from the liabilities of his bail-bonds. 9. This present appeal stands disposed of accordingly.