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2010 DIGILAW 187 (PAT)

State Of Bihar v. Hari Singh

2010-02-15

DHARNIDHAR JHA, RAKESH KUMAR

body2010
JUDGEMENT Dharnidhar Jha and Rakesh Kumar JJ. 1. The present Government Appeal challenges the judgment and order of acquittal dated 30th March, 1988 passed in Sessions Trial No.122 of 1987 by the learned 1st Additional Sessions Judge, Vaishali at Hajipur. While acquitting the respondent nos.1 to 9, the learned judge held that the circumstances appearing on appreciation of the evidence by him revealed that the prosecution had not approached the Court with clean hands and further that the story propounded by the prosecution did not inspire confidence. 2. The short prosecution case was that the accused persons who were armed with guns and weapons, like, Farsa, Bhalacame to the house of the informant Haribans Singh (P.W.7) and respondent Hari Singh who was armed with his licensed gun ordered to kill Rajendra Singh and handed over the weapon to his son Desh Premi Singh, who fired upon Rajendra Singh. Respondent Shambhu Singh also fired from his pipe gun. The informant stated that he along with Jwala Singh (P.W.5), Umesh Singh (P.W.2) and female inmates of the house fled from their houses out of fear and during that course they raised alarm which attracted the villagers. It was alleged that one Barister Singh (not examined) rushed to the rescue of Rajendra Singh and in course of his attempt he was subjected to assault with Farsa by accused Kameshwar Singh. 3. As regards the motive for the occurrence, it was alleged that there was a dispute between Hari Singh, Mukhlal Singh, on the one hand, and the deceased on the other who were pattidars in between them. It was further alleged that in the morning of the date of occurrence, the son of Mukhlal had assaulted the nephew of the informant Haribans Singh (P.W.7) and the deceased had chided the son of Mukhlal who had threatened him that the deceased would see that Rajendra Singh was taught a lesson. 4. As may appear from the records, 8 witnesses were examined by the prosecution in support of its case whereas 4 D.Ws. were examined by the defence and on consideration of the evidence, the judgment was rendered by the learned Trial Court. 5. We have heard Sri Ashwini Kumar Sinha, the Additional Public Prosecutor in support of the Government Appeal and we have heard Sri Kanhaiya Prasad Singh, learned Senior Advocate appearing on behalf of the respondents. were examined by the defence and on consideration of the evidence, the judgment was rendered by the learned Trial Court. 5. We have heard Sri Ashwini Kumar Sinha, the Additional Public Prosecutor in support of the Government Appeal and we have heard Sri Kanhaiya Prasad Singh, learned Senior Advocate appearing on behalf of the respondents. We have considered the impugned judgment in the light of the evidence. 6. Before we embark upon scrutinizing the findings of the learned judge in the light of the submissions, we want to take note of the position of law that an order of acquittal has never to be interfered with lightly, because the theory of innocence of the accused persons has been ratified by the judgment of acquittal and if any Appellate Court is called upon to scrutinize and interfere with the findings the element of perversity in appreciation of evidence by the Trial Court has to be established. Besides if the appellate/revisional Court finds that there could be two views and the view which was taken by the Trial Court was also a probable view emerging from the evidence, then in that case the order of acquittal must not be disturbed. 7. We must record the fairness of the learned Additional Public Prosecutor in submitting that on perusal of the materials available to the learned Trial Judge the findings recorded by him do not appear improbable or impossible findings which no reasonable person could have reached or recorded on the evidence available. It was contended that the view taken by the learned Trial Judge after appreciating the evidence while rendering the judgment on the probability emerging therefrom appears a probable view also and the judgment, as such, does not suffer from any perversity. 8. Sri Singh learned Senior Counsel reiterated the same position of law and the same points before us also and contended that while rendering the judgment of acquittal the learned judge was disbelieving the claim of the witnesses to have seen the occurrence. In that context, the learned Judge was referring to the material evidence available to him both of the witnesses as also of the I.O. who were giving evidence on the topographical situation around the place of occurrence and was correctly taking a view to reject them as not reliable witnesses. In that context, the learned Judge was referring to the material evidence available to him both of the witnesses as also of the I.O. who were giving evidence on the topographical situation around the place of occurrence and was correctly taking a view to reject them as not reliable witnesses. It was contended that the motive did not appear to be proved because there was a document admittedly of Panchnama for settling the dispute arising out of an unequal shares allotted in partition as alleged by the prosecution and the same was not produced before the Trial Court. Not only that the learned Judge was doubting the manner in which the fardbeyan was recorded at Vaishali Hospital and still the dead body was sent for postmortem examination and was allowed to be brought to the house of the deceased to be again taken to Hajipur Sadar Hospital. As such the learned Trial Judge doubted that the fardbeyan was recorded at Vaishali Hospital and under the above noted facts reached the conclusion that it might be a probability that it was recorded at the house of the deceased and facts were distorted for making out a case. 9. We have gone through the judgment of the learned Trial Judge with the aid of the counsel of both the sides and we find that the reasons for rejecting the claim of the witnesses as eye witnesses to the occurrence which was assigned by the learned Trial Judge could also be a probable view in the light of their own evidence as also in the light of the evidence of the 1.0. of the case. There are three independent witnesses who were examined in the case as P.Ws.1, 3 and 4. The learned Trial Judge has considered the evidence of P.W.4, firstly, as may appear from the discussions made in that behalf by the learned Trial Judge in paragraph-4 of the impugned judgment. The learned judge has, thereafter, scrutinized the evidence of the son of the deceased (P.W.2) and P.W.5 Jwala Singh, who also claimed to have seen the occurrence from his Darwaza after referring to various evidence of the individual witnesses whose evidence has been discarded as not truthful. The learned judge appears, for good reason, not acting upon their evidence. The description of the place of occurrence and other structures, fields, etc. The learned judge appears, for good reason, not acting upon their evidence. The description of the place of occurrence and other structures, fields, etc. around it in paragraph-4 appears to us leading to the same conclusion which was reached by the learned Trial Judge. The place of occurrence was intervened by many structures, like, houses and Jhoparis. Besides, the same was intervened by a big maize field which had thick maize crop of such a height as to not making visibility possible from different neighbouring places of the occurrence which was around the Darwaza of the deceased. The I.Os evidence was very material on the above point who had pointed out the height of the maize crop as big as could be assumed of a maize plant which was bearing fruits. Besides the learned trial judge has taken note of the natural phenomenon in the growth of the crop and has noted that it was the month of September in which the occurrence had taken place and by that month the maize crop by natural growth could be reached up to such a height as to obstructing visibility of the person who could be sitting on one side of the field on the other side of which the occurrence was taking place. Besides, while rejecting the evidence of P.W.4 who claimed to have seen the occurrence, the learned judge has considered the situation of the Bhuskhar (a place of keeping fodder) and after referring to the evidence of P.W.4 and that of the I.O., has rejected his claim of being the eye witness on account of above noted obstruction. As regards P.W.3 Sita Ram, the evidence of this witness has been discarded on account of the situation of the Marai in front of his house and from where he claimed to have seen the occurrence by the same reason as was found and assigned by the learned Trial Judge in the case of P.W.4. As regards P.W.3 Sita Ram, the evidence of this witness has been discarded on account of the situation of the Marai in front of his house and from where he claimed to have seen the occurrence by the same reason as was found and assigned by the learned Trial Judge in the case of P.W.4. Besides, the learned Trial Judge considering the locations of different tolas of the village, as may appear from the consideration of the evidence in that behalf appearing at page-4 of the impugned judgment and after considering the situation of different tolas of the village, the learned trial judge was finding that the house of P.W.3 Sita Ram was situated in a tola which was intervened by Mian Toli and as such he could not see the place of occurrence from his own Darwaza or his house which was intervened by so many houses. As regards P.W.1 his evidence was discarded by the learned trial judge on suggestion that he was on inimical terms with Raghubir Choudhary, father of one of the accused Arjun Choudhary who had filed a case against P.W.1. The fardbeyan of the case alongwith the F.I.R. were brought on record of the Trial Court. P.W.1 denied the suggestion that any such case had been filed. The learned Trial Judge was discarding his evidence on the ground that he was inimical to Choudhary people and as such was deposing in the case. We feel that P.W.1 could be deposing in case only when the informant was ready to implicate his enemies in a charge of murder and this could be the reason that no allegation of commission of any overt act was attributed right from the stage of lodging of the report to the leading of evidence before the learned Trial Judge. So far as the evidence of the son of the deceased (P.W.2) was concerned, the learned Trial Judge has given the reason in paragraph- 5 of the impugned judgment rendering the prosecution case suspect. In that connection, the learned Trial Judge has considered the factum of motive and its non-proof. It has been pointed out by the learned Trial Judge that there was a dispute between the accused and the deceased for partition of some joint properties and the deceased felt that the accused Hari Singh had usurped more land in his share while partitioning the properties. It has been pointed out by the learned Trial Judge that there was a dispute between the accused and the deceased for partition of some joint properties and the deceased felt that the accused Hari Singh had usurped more land in his share while partitioning the properties. The dispute had culminated only on appointment of some Punches and recording of some Punchnama. The learned Trial Judge held that it was necessary for the prosecution to produce Punchnama which was recorded for resolving the dispute and the non-production of the same rendered the motive not proved. Besides, the learned Trial Judge read the evidence of the I.O., as may appear from paragraph-8 of the impugned judgment, who had not found any blood mark or any such mark like the trail of blood at the place of occurrence where the occurrence was said to have occurred. Besides, there was three gun injuries on the deceased while there was a single assailant firing a single shot. In addition to the above, the learned Trial Judge read the infirmity and the suspect conduct of the prosecution in taking the dead body to Vaishali Hospital and getting a fardbeyan recorded there, but still bringing back the same to their house so as to be retaken to Hajipur Sadar Hospital. We are of the view that these circumstances created sufficient doubt that the facts in respect of the occurrence would have been something otherwise and those were suppressed. The learned judge was perfectly justified in recording that the prosecution had not approached the Court with clean hands. 10. When the prosecution is found guilty of suppression of facts and appears not coming to the Court with clean hands and, further, when the prosecution case and story appears mysterious as in the case in hand, we are of the view that the judgment impugned herein, does not suffer from any perversity and that the view taken by the learned judge was also the possible view, may be the only view and in that view, the appeal appears of no merit and is dismissed. The respondents are on bail. They stand discharged from the liability of their respective bonds.