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2010 DIGILAW 2306 (PAT)

State Of Bihar v. Deep Narain Singh

2010-10-07

DINESH KUMAR SINGH, SHYAM KISHORE SHARMA

body2010
JUDGEMENT SHYAM KISHORE SHARMA and DINESH KUMAR SINGH JJ. 1. Through the present Government Appeal, the judgment of acquittal dated 12.03.1993 passed by the learned 2nd Additional Sessions Judge, Siwan, in Sessions Trial No. 102 of 1992 has been challenged on the ground that the learned trial Court has not appreciated the evidences of eye-witnesses in right perspective and has recorded the judgment of acquittal on perverse findings. 2. Before coming to the points raised by the appellant in the present appeal, the brief factual matrix is necessary to be dealt with. The prosecution case started rolling with the fardbeyan of (PW 7) Sheojee Singh, recorded on 22.06.1991 at 8.30 p.m. in the night by S.I. Rama Nandan Prasad Singh to the effect that on alleged date of the occurrence at 12.00 in the afternoon, PW 7 was visiting deceased Mostt. Lalita Kuar and her daughter Dharamshilla Kumari at village Jhajhawa, since, the informant used to look after the landed property of deceased Lalita Kuar after death of her husband Late Laxman Singh. In the meantime, five accused persons Ram Pravesh Singh(dead), Banke Singh (dead), Deep Narayan Singh (respondent No. 1), Shailendra Singh (respondent No. 2) and accused Jilani @ Jhulania (respondent No. 3)came. Shailendra came with bag and accused Jilani came with sack in the orchard where the informant was sitting with the deceased. Subsequently the accused persons left the place of occurrence at 4.00 p.m. When the informant tried to leave the orchard of the deceased, he saw the accused persons coming to the orchard and subsequently pushing down both the victims and then Jilani ripped apart the stomach of both the victims with knife whereas accused Shailendra Singh assaulte. with pistol and Deep Narayan Singh, Banke Singh and Ram Pravesh also assaulted the victims. On alarm being raised, Kamal Mahto (PW 1), Nirpat Mahato(PW 4) and others came and thereafter, the accused persons not only threatened the informant but also exploded bomb and resorted to firing by pistol. 3. On the basis of aforesaid fardbeyan, Maharajganj P.S.Case No. 70 of 1991 was registered on 23.6.1991 at 4.00 p.m. under Sections 302/34 of the Indian Penal Code. Harendra Singh (not examined) and Nawal Kishore Singh (P.W. 2) were made attesting witnesses to the FIR The said FIR was transmitted to the Court on 27.6.1991. 3. On the basis of aforesaid fardbeyan, Maharajganj P.S.Case No. 70 of 1991 was registered on 23.6.1991 at 4.00 p.m. under Sections 302/34 of the Indian Penal Code. Harendra Singh (not examined) and Nawal Kishore Singh (P.W. 2) were made attesting witnesses to the FIR The said FIR was transmitted to the Court on 27.6.1991. The learned trial Court after examining the evidence on record completely disbelieved the evidence of eye-witnesses, namely, P.Ws. 1, 4, 6 and 7 and the trial Court also found the medical evidence completely negating the prosecution version and accordingly, the judgment of acquittal was recorded. It is true that in an appeal against acquittal, the appellate Court has the power to reappraise the evidence but the settled law is that interference is only permissible when the findings are perverse and the clinching evidences have completely been ignored. The Apex Court has held that, the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the Appellate Court on reappraisal of the evidence, can not constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous, or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal can not at all be sustained in view of any of the above infirmities it can then and only then reappraise the evidence to arrive at its own conclusions. In consonance with the above principle, we have, therefore, to consider whether the findings of the trial Court are sustainable or not. 4. As per the evidence of PW 7 (informant), it appears that he returned to place of occurrence on seeing the accused persons approaching the victims and found the accused persons assaulting the victims. In consonance with the above principle, we have, therefore, to consider whether the findings of the trial Court are sustainable or not. 4. As per the evidence of PW 7 (informant), it appears that he returned to place of occurrence on seeing the accused persons approaching the victims and found the accused persons assaulting the victims. PW 7 in his evidence in paragraph No. 11 has stated that initially all the five persons started assaulting both the victims. Thereafter PW 7 raised alarm, when he saw that accused Jilani armed with knife and Shailendra armed with pistol were threatening the informant. On alarm, PW 1, Kamala and PW 4 Nirpat came and thereafter Deep Chand (PW 6) reached the place of occurrence. As per the informant, the victims were brutally assaulted by fists and slaps and when the condition of both the victims became precarious then, Jilani ripped apart the stomach of Lalita with knife while Ram Pravesh Singh and Banke Singh had held the hands and legs of Lalita Kuar and Deep Narayan Singh and Shailendra Singh caught hold of the legs and hands of Dharamshila when Jilani completely ripped apart the stomach of the victim. The medical evidence suggests three stab injuries and one incised injury to Lalita whereas on the body of Dharamshila, one stab injury and one incised injury were found. The post-mortem reports of both the victims do not reflect any injury by fists and slaps or by pistol as alleged by PW 7. Hence the medical evidence creates serious doubt about the manner of the occurrence as alleged by the informant. It is settled principle of law that medical evidence being opinionative in nature can not over-ride the ocular evidence but it is also a settled principle that when the medical evidence either completely negates the ocular version or creates serious doubt then it clouds the credibility of the eye-witnesses. The evidence of PW 7 reflects that there was a land dispute between the parties and the informant (PW 7) in paragraph No. 6 has admitted that he is in possession of the deceaseds land, after their death, which suggests that the informant became the actual beneficiary due to death of both the victims. The evidence of PW 7 reflects that there was a land dispute between the parties and the informant (PW 7) in paragraph No. 6 has admitted that he is in possession of the deceaseds land, after their death, which suggests that the informant became the actual beneficiary due to death of both the victims. The presence of informant at the place of occurrence also becomes doubtful in view of the fact that he is a resident of Jagdishpur whereas the occurrence took place in the village-Jhajhawa and the distance from the village-Jagdishpur to Jhajhawa is about four miles. The purpose of PW 7 being present in the village-Jhajhawa has been disclosed by him in fardbeyan as well as in the evidence to the effect that he had gone to give the accounts to the deceased persons with regard to the expenditure incurred in doing pairvi of the Title Suit in the Court but this claim of the informant is being negated through para 6 of the evidence of PW 11 Gautam Pandey, Advocates clerk, who was making pairvi in the matter, to the effect that the required amount for making pairvi was being provided by both the deceased and not by the informant. Hence, the evidence of PW 11 completely nullifies the purpose for which PW 7 claims his presence at village- Jhajhawa. Hence, the trial Court has rightly disbelieved the evidence of PW 7. So far as other P. Ws. are concerned, P. Ws. 1 and 4 have been described in the fardbeyan to have reached the place of occurrence on alarm being raised by PW 7. The specific case of the informant (PW 7) is that after the assault started, he raised alarm on which P. Ws. 1 and 4 reached the place of occurrence, but P. Ws. 1 and 4 claim themselves to have seen the occurrence but their evidence to the effect that the intestines of both the victims were protruded after receiving the dagger injury is nullified by the Post-mortem reports which does not suggest as such. P. Ws. 1 and 4s presence at the place of occurrence is further negated by the Investigating Officer (PW 10). In paragraph Nos. 33 and 35, PW 10 specifically states that P. Ws. 1 and 4 never stated before him that on alarm of PW 7, they reached the place of occurrence. Moreover, P. Ws. P. Ws. 1 and 4s presence at the place of occurrence is further negated by the Investigating Officer (PW 10). In paragraph Nos. 33 and 35, PW 10 specifically states that P. Ws. 1 and 4 never stated before him that on alarm of PW 7, they reached the place of occurrence. Moreover, P. Ws. 1 and 4 have admitted their poor vision during their deposition which has also been tested by the trial Court by recording that these witnesses identified the accused when they went very close to accused in the dock. Moreover, PW 1 in paragraph Nos. 18 and 21 has stated that P. Ws. 4 and 6 are related. PW 6 another eye-witness has not been named by the informant in the fardbeyan but he also claims to have reached the place of occurrence, though, during evidence he has admitted his presence after reaching of P. Ws. 1 and 4, but PW 6 has not claimed to have seen the manner of assault. Hence, the evidence of PW 6, in no manner, helps the prosecution to prove the manner of occurrence. Hence, the inconsistencies in the evidences of P. Ws. 1, 4, 6 and 7 including the inconsistency with the medical evidence justifies the stand of learned trial Court in not relying on the prosecution witnesses. It is well settled law that the judgment of acquittal can not be unsettled even if the appellate Court takes a different view than the view taken by the trial Court provided that the view taken by learned trial Court, admittedly, is also possible. In the present case we have no occasion to take a different view other than the view taken by the trial Court. The serious lapse on behalf of the prosecution is that the occurrence took place on 22.06.1991 at 4.00 p.m. whereas the fardbeyan was recorded on the same day at 8.30 p.m. The Police Officer was informed by someone on which the Sanha entry No. 477 of 1991 was made and then the police reached the place of occurrence. The alleged Sanha diary has not been brought on record. Even though the three page fardbeyan was recorded after 4 1/2 hours of the occurrence, still, the material facts were not incorporated. 5. The alleged Sanha diary has not been brought on record. Even though the three page fardbeyan was recorded after 4 1/2 hours of the occurrence, still, the material facts were not incorporated. 5. The occurrence took place at 4.00 p.m. on 22.06.1991 whereas FIR was registered on 23.6.1991 at 2.00 a.m. The distance of police station from the place of occurrence was 10 K.M. but F.I.R. was transmitted to the Court on 27.06.1991 but no explanation for five days delay in transmission of F.I.R. has been furnished by the prosecution. PW 10 has admitted that the formal part of the F.I.R. was filled up by him but has not filled-up the date in column three of the formal F.I.R. which depicts the transmission of F.I.R. on 27.6.1991. The learned trial Court verified the records of the learned C.J.M. to find, that the F.I.R. actually reached the learned C.J.M. on 27.6.1991. This lapse not only creates serious doubt on the F.I.R. but also creates doubt about the genuineness and truthfulness of the fardbeyan. Section 157(1) of Cr PC stipulates that on information received about the commission of cognizable offence at the police station, the Officer-in-Charge shall send forthwith a report of the same to the Court of the Magistrate empowered to take cognizance. In the case of Ishwar Singh V/s. State of U.P. reported in AIR 1976 SC 2423 , it has been held that the extraordinary delay in transmitting the FIR to the Court, provides a legitimate basis for suspecting that the F.I.R. was recorded much later than the stated time and hour and gives further sufficient time to the prosecution to make improvements and set up a different version of the occurrence. In the present case, the F.I.R. was registered on 23.6.1991 and admittedly it was transmitted to the Court of the learned C.J.M. on 27.6.1991 and the prosecution has failed . to explain the delayed transmission, particularly the Investigating Officer of the case, when he came to depose by saying that he did not know who filled up column three of formal F.I.R. Hence, this delay creates serious doubt about the prosecution case. 6. Mr. Bamdeo Pandey, learned counsel for the respondents has taken us through the findings recorded by the learned trial Court which suggest that the reasoning recorded by the learned trial Court does not lead to any other conclusion. Hence, the appeal is dismissed. 7. 6. Mr. Bamdeo Pandey, learned counsel for the respondents has taken us through the findings recorded by the learned trial Court which suggest that the reasoning recorded by the learned trial Court does not lead to any other conclusion. Hence, the appeal is dismissed. 7. Though initially Government Appeal was filed in which four acquitted persons were made respondent Nos. 1 to 4. The respondent Nos. 1 and 2 are directed to be discharged from liability of their bail bonds since the respondent, namely, Ram Pravesh Singh, died during pendency of the present appeal, hence, his name was deleted from the memo of appeal which is apparent from the order dated 23.08.2010. So far as respondent No. 3 is concerned, namely, Jilani @ Jhulania, who is in custody, he is directed to be released forthwith if not required in any other case.