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2008 DIGILAW 60 (PAT)

Krishna Prasad v. State Of Bihar

2008-01-10

SHYAM KISHORE SHARMA

body2008
Judgment SHYAM KISHORE SHARMA, J. 1. Both the appellants have preferred this appeal against the judgment and order of cqnviction and sentence passed by 5th" Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No.45/199 of 1981/1990 by which appellant no.1 Krishna Prasad has been convicted under Sections 307 of the Indian Penal Code and 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for seven years and two years respectively and appellant no.2 Hardeo Prasad has been convicted under Sec. 114 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for seven years. Both the sentences in respebt of convict Krishna Prasad were ordered to run concurrently. Other accused persons namely, Mundrika Prasad, kamla prasad, Ramjee prasad, Chandrika Prasad, Ramswarup Prasad and Kailash Prasad who also faced trial along with these two appellants were not lound guilty and were acquitted from the charges. 2. Aecording to the informant Sudarshan Singh, P.W.5, at. about noon on 22.12.1979 the appellants along with other accused persons came variously armed and at the behest of appellant Hardeo Prasad, appellant Krishna Prasad fired from his gun which caused injury to Rakesh Kumar due to which he fell down and got unconscious A case was registered and after completion of investigation, charge sheet was submitted. After taking cognizance, the case was committed to the court of sessions. Charges were framed before the sessions. court and the same were explained to the accused persons. The accused persons pleaded innocence and preferred to face trial. 3. The defence of the accused persons was of false implication and also that the prosecution has not come with true facts, rather it suppressed the material fact that On the same very date and time of the occurrence, the informant and others also attempted to kill the accused persons and in that connection one person received injury on chest which has remained unexplained. Further defence was that the case was reported to the police on 22.12.1979 but the F.I.R. was sent to the court on 27.12.1979 after long lapse of time i.e. 5 days and it has remained unexplained. The injury of the other side has also not been explained. So it was submitted on behalf of the appellants that the appellants have been falsely implicated in this case. 4. In order to prove the case, the prosecution has examined 9 witnesses. The injury of the other side has also not been explained. So it was submitted on behalf of the appellants that the appellants have been falsely implicated in this case. 4. In order to prove the case, the prosecution has examined 9 witnesses. P.W.I Ramesh Kumar Singh, P.W.,2 Nayendra Singh, P.W.3 Binod Singh, P.W.4 victim Rakish Kumar and P.W.5, the informant Sudarshan Singh were examined as eye witnesses of the occurrence. P.W.6 is Dr.Ram Kishore Prasad who had examined the injured Rakesh Kumar. P.W.7 and P.W.9 are the formal witnesses. P.W.8 is the Investigating Officer. 5. P.W.4 in his evidence has stated thai on the noon of 22.12.1979 while he was arranging the fallen bricks of the hut, the accused persons variously armed came there and at the instigation of appellant Hardeo parsad, Appellant Krishna Prasad fired which hit his left side head, forehead and right cheek as a result of which he fell down and became unconscious and later on regained consciousness. Thereafter, his statement was recorded by the police. Other witnesses namely, P.Ws. 1,2,3 and 5 have also supported the prosecution case stating that on the date, time and place of occurrence, the accused persons came variously armed and at the behest of appellant Hardeo Prasad, appellant Krishna Prasad fired which caused injuries to Rakesh Kumar. 6. It has been submitted on behalf of the appellants that the implication of these two appellants is only on the basis of imaginary ground as P.Ws. 1 and 2 have identified a wrong person in the dock. So it can safely be said that they were not the eye witnesses and they were instigated in implicating the appellants. Attention has been drawn towards the evidence of P.Ws.l and 2. Perused the evidence of P.W.I. He in his evidence has srtated that he had identified Krishna Prasad and had not identified the other accused. When P.W.I was asked to identify accused Krishna Prasad, then he pointed out towards another person whose name was Kailash Prasad. Therefore, the evidence of this witness is fit to be discredited as he has identified a wrong person as Krishna Prasad. Similarly, P.W.2 claimed to identify Krishna Prasad and when he was asked to identify, then he too pointed out towards another person in place of Krishna Prasad. This witness has also not identified the correct person. Therefore, the evidence of this witness cannot be relied. Similarly, P.W.2 claimed to identify Krishna Prasad and when he was asked to identify, then he too pointed out towards another person in place of Krishna Prasad. This witness has also not identified the correct person. Therefore, the evidence of this witness cannot be relied. Even the most important witness of this case P.W.4 Rakesh Kumar who is also injured has not identified his assailant Krishna Prasad though he was" present in dock. The trial court has discussed the evidence of P.W.4 in paragraph 30 at page 12 of the judgment. The trial court has written that P.W.4 has stated that neither the assailant nor the order giver was present in the dock but the court has noted that the alleged assailant Krishna Prasad was present in the dock. It has been pointed out that the evidence of P.W.4 cannot be relied as he has not identified even his assailant. Further Argument, of appellants is That the doctor who treated the injured P.W.4 in the P.M.C.H. has not been examined. One doctor P.W.6 (Dr.Ram Kishore Prasad) of Hilsa who initially treated the injured had appeared in court but injury report; was not before him and he has deposed on the basis of attested copy of the injury report and not on the basis of original injury report. So in view of Sec. 68 of the Evidence Act it cannot be taken into consideration. It is fact that the doctor had deposed on the basis of attested copy of injury report and not on the basis of original injury report. The doctor has found the injury to be simple in nature. 7. Another important fact in this case is that there was counter case of the same date. It has been argued that for the occurrence of same date and time, a case was also lodged by the side of the defence which resulted in Sessions Trial No. 172 of 1990. In that case, the informant was the assailant. He kept mum and has not explained anything about the counter case. As such, it is clear that the prosecution has not come with clear version of the case. 8. Learned Addl.P.P. has submitted that the trial court, has discussed all the evidences and has rightly convicted the appellants. 9. The learned Addl. He kept mum and has not explained anything about the counter case. As such, it is clear that the prosecution has not come with clear version of the case. 8. Learned Addl.P.P. has submitted that the trial court, has discussed all the evidences and has rightly convicted the appellants. 9. The learned Addl. P.P. is not in a position to explain as to why the injured and other witnesses have identified the wrong persons in the dock. Due to wrong identification of the accused by the witnesses, the case becomes doubtful. Once doubt is created regarding truthfulness of the prosecution version, then it is well settled that the benefit of doubt will go in favour of the accused and not in favour of the prosecution. To sum up, in view of wrong identification of the accused by the injured and other witnesses, unexplained delay of five days in receipt of the F.I.R. in court, non-explanation regarding counter case and injury of the defence side and also in view of not producing the original copy of injury report, I am of the view that the case of the prosecution becomes doubtful and the doubts have been verified. So the prosecution case is not liable to be accepted. 10. In the result, this appeal is allowed and the impugned judgment and order of conviction and sentence is set aside. The appellants are also discharged from liabilities of their bail bonds.