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2008 DIGILAW 490 (JHR)

State Of Bihar (Now Jharkhand) v. Rama Kant Singh

2008-04-22

AMARESHWAR SAHAY, D.P.SINGH

body2008
JUDGMENT 1. The State has preferred this appeal against the judgment and order of 4th Additional Sessions Judge, Dumka passed in Cr. Appeal No. 115 of 1986/98 of 1986 whereby the learned 4th Additional Sessions Judge, Dumka has allowed the appeal and acquitted the respondent who was convicted by the 1st Assistant Sessions Judge, Dumka in Sessions Case No. 312 of 1985 on 20.5.1986 for the offence under Section 307 of the Indian Penal Code and Section 28 of the Arms Act. 2. Brief facts leading to this appeal are that the respondent (a constable) was standing at the shop of the PW 8 on 13.6.1985 when informant PW 3 went there to purchase a soap. At this juncture the respondent abused him and asked PW 8 to provide him first with pan and then only to hand over soap to the informant. The informant protested then as alleged, the respondent whipped a revolver from his pocket and fired upon the informant. However the informant could save him by bending down. Thereafter the respondent again tried to fire but it did not click. The informant raised alarm but in the meantime the respondent manage to flee away. Further stated when father of the informant, (head constable) got information they went in search of the respondent at his residence and caught him along with revolver and three cartridges. The respondent was handed over to Dumka Police and an FIR bearing Dumka (Town) P.S. Case No. 12 of 1985 has been registered under Section 307 of the Indian Penal Code and 25/27 of the Arms Act. 3. The respondent was put on trial in S.C. Case No. 312 of 1985 and convicted finally. The respondent preferred appeal i.e. Cr. Appeal No. 115 of 1986/98 of 1986 in which the 4th Additional Sessions Judge, Dumka set aside the order of conviction and acquitted him of the charges on various grounds by order dated 23.7.1986. 4. The present appeal has been preferred against the order of learned 4th Additional Sessions Judge, Dumka passed in Cr. A. No. 115 of 1986/98 of 1986 by which the respondent has been acquitted of the charges on the grounds that the learned lower appellate Court failed to appreciate that the charges under Section 307 of the Indian Penal Code was properly explained to the respondent. A. No. 115 of 1986/98 of 1986 by which the respondent has been acquitted of the charges on the grounds that the learned lower appellate Court failed to appreciate that the charges under Section 307 of the Indian Penal Code was properly explained to the respondent. It further mentions that the finding of the learned lower appellate Court regarding non mentioning of the attempt to commit murder by the respondent on the father of the informant PW 6 was without reasons. It further mentions that the discussions made by the learned lower appellate Court that the trial Court wrongly considered the evidence of PW Nos. 1, 2, 4, 5, 7, and 8 is not justified. Similarly the order of the lower appellate Court has been criticized on the ground that the technical aspect of the charges and evaluation of evidence was not justified. Therefore the order of acquittal passed in Cr. Appeal No. 115 of 1986/98 of 1986 dated 23.7.1986 be set aside and the order of conviction by the learned trial Court against the respondent be restored. 5. We heard Sri M.B. Lal, learned Counsel appearing for the State and Sri Vishnu Kumar Sharma learned Counsel appearing for the respondent. Perused the lower Court records and evidence available before the trial Court. The prosecution has examined in all 11 witnesses out of which PW 2 was declared hostile, PW 5, PW 7 and PW 8 have been tendered by the prosecution. PW 8 is Laxmi Keot on whose shop the alleged occurrence has stated to have taken place, PW 9 is the formal witness, PW 10 the sergeant Major who has examined the country made pistol. PW 11 is the Investigating Officer. 6. We have gone through the judgment of the learned trial Court. The learned trial Court while considering the evidence has mentioned that PWs 1, 3 are eye witnesses who have been supported by PW 6 vide para 7 of the said judgment. PWs 2, 4, 5, 7, and 8 did not support the prosecution case. However the learned trial Court relied on the evidence of PWs 5, 7 and 8 vide para 12 only on the ground that the defence did not taken points in its favour during cross examination. PWs 2, 4, 5, 7, and 8 did not support the prosecution case. However the learned trial Court relied on the evidence of PWs 5, 7 and 8 vide para 12 only on the ground that the defence did not taken points in its favour during cross examination. Learned lower appellate Court has considered this aspect and observed that the reliance placed upon the evidence of PWs who have been tendered by the prosecution but they have supported the prosecution case before the police, in case diary was not proper. We are also of the same view that unless the prosecution witnesses positively speak regarding the incident in their evidence in Court during the trial, the prosecution can not take benefit of the statements made by such witnesses before the police. The defence is not required to cross examination such tendered or hostile witnesses at length and to bring on record contradictory statements of such witnesses on the date of examination who did not support the prosecution case. In this context, the observation of the learned lower appellate Court at paras 12, 13, 14 and 15 are quite justified. The learned lower appellate Court has further considered the aspect that charge under Section 28 of the Arms Act were not framed in accordance with law vide paras 7 and 8. We find that the reasons given by the learned lower appellate Court are in accordance with law and Justified. 7. It is apparent from the records that the respondent, a serving constable in Dumka police faced the trial for an occurrence of 13.6.1985 at least 23 years back. We were informed by learned Counsel for the respondent that since then he has remained in custody till the order of acquittal passed on 23.7.1986. We were further informed that even after acquittal he could not join the services as the present acquittal appeal has remained pending. 8. After going through the materials on record, we do not find any reason to disagree with the view taken by the learned lower appellate Court (4th Additional Sessions Judge, Dumka) and order passed in Cr Appeal No. 115 of 1986/98 of 1986. Accordingly, we find no merit in this Government appeal. In the result, this Government appeal stands dismissed. Appeal dismissed.