Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 435 (PAT)

Krishna Sah @ Krishna Gond v. State of Bihar

2014-04-09

DHARNIDHAR JHA

body2014
JUDGMENT The appellant was tried by the learned 2nd Additional Sessions Judge, Siwan in Sessions Trial No.226 of 1990 after being charged with committing offences under Section 307 IPC and Section 3 of the Explosive Substances Act and by judgment dated 10th of September, 1999, he was held guilty of committing the two offences. After being heard on the quantum of sentence, the appellant was directed to suffer rigorous imprisonment for seven years as also rigorous imprisonment of five years on the above two respective counts with further direction that the sentences were to run concurrently. 2. The informant was sleeping in his house at about 11 P.M., he felt being attacked by a bomb and he woke up from his sleep. He claimed identifying the appellant who was running away from the scene of occurrence in the light of an electric bulb burning there. The appellant was accompanied by another unknown person. 3. The fardbeyan (Ext-3) of the incident was lodged on 05.03.1989 at 4.30 A.M. and the FIR (Ext-2) of the case was drawn up and on that basis the case was investigated into. 4. The informant Somari Choudhary (P.W.5) was examined by P.W.6 Dr. Jai Narayan Prasad who found the following injuries on his person:- (i) One lacerated wound having 2”x1”x1” on the right elavicular area with fracture of right clavicle. (ii) One lacerated wound measuring 1”x½”x1” on the right clavicular area medial to injury no.1. 5. In the opinion of P.W.6 the injuries were caused due to the force of a sharp splinter of a detonated bomb and the injuries were grievous in nature. 6. The investigating officer was not examined, but six witnesses were produced by the prosecution, out of whom, P.W.1 Babulal Choudhary, P.W.3 Parma Yadav who happened to be the son of the informant, were making statements that they had arrived at the scene of occurrence after hearing the sound of explosion of bomb and found P.W.5 (Somari Choudhary) bleeding from his shoulder and further that he was in a pool of blood. P.W.4 Lalmati Devi claimed that she was also sitting by the side of the informant and she had identified the appellant, though no such statement was made by her husband in his fardbeyan which was lodged after about 5 and half hours of the incident. P.W.4 Lalmati Devi claimed that she was also sitting by the side of the informant and she had identified the appellant, though no such statement was made by her husband in his fardbeyan which was lodged after about 5 and half hours of the incident. She was not a witness, is further exhibited by the fact that in the first line of her evidence she admitted that she had never been examined by the police. Thus, there was not only doubt as regard the competence of P.W.5 being an eye witness but also on the admissibility of the evidence. The evidence, thus, remains solitary of P.W.3 and on consideration of his evidence what appears is that there could be a doubt as regards the identification of the appellant by him. P.W.5 (Somari Choudhary) while supporting his own case of being attacked by a bomb and having awakened from his sleep, he found the appellant running away from a distance of 10 ft. and identified him as such, but he did not state as to what was the source of light in which he identified the appellant. One may argue that the source of light was disclosed by the informant in Ext-3, the fardbeyan. But, one has always to recall that FIR is not a substantive piece of evidence of any offence or the incident and it has the simple value of being used either to corroborate or to contradict the maker of the document. Thus, the statement not being a substantive piece of evidence, none of the statements contained there in could be used for seeking corroboration to any fact in dispute and, as such, for raising any inference. One has to presume, in absence of any evidence from P.W.5 as to what was the source of light available on the place of occurrence, that there was no source of light. This inference gets re-enforced by the evidence of P.W.1 Babulal Choudhary who had claimed to have arrived at the scene of occurrence after picking up the sound of explosion of bomb. P.W.1 stated in paragraph-2 that it was a dark night and thus, the position on availability of source of light becomes clear. This inference gets re-enforced by the evidence of P.W.1 Babulal Choudhary who had claimed to have arrived at the scene of occurrence after picking up the sound of explosion of bomb. P.W.1 stated in paragraph-2 that it was a dark night and thus, the position on availability of source of light becomes clear. One has always to presume in the absence of any evidence from P.W.5 and in the light of the evidence of P.W.1 that it was a dark night and that identification could not have been possible from the distance of about 30 ft. which was the distance between P.W.5 and the present appellant when the informant had first seen him. 7. Other circumstances which appear creating a serious doubt on the claim of identification made by P.W.5 is that he was sleeping after having pulled up a chadar up to his head and he has admitted very much in his evidence that he had covered his face. Other witnesses, like, P.W.3 or P.W.2 has also stated that it was a cold night and people had retreated into the safety of their houses so as to keep themselves warm and, as such, had on sufficient cloths. One experience which could be handy in the present case is that if some one wokes up amidst darkness and attempts to look around so as to finding out as to what things were around him, even in his own house to which he is so well acquainted, he finds himself in a difficult situation of even finding out the exit of the house. What I mean to point out is that suddenly waking up from the sleep in a dark night does not make it possible to identify a running man from a distance of 30 ft. These are some of the circumstance which stare out of the evidence into the prosecution face and makes it utterly impossible to hold that the identification of the appellant could have been possible in that night. 8. The defence was that there had been some mutual fight only on that day or a couple of days ago and the appellant had been assaulted by the informant so badly as to be inflicted fracture injuries on his hand. 8. The defence was that there had been some mutual fight only on that day or a couple of days ago and the appellant had been assaulted by the informant so badly as to be inflicted fracture injuries on his hand. It was suggested that some unknown persons could have attacked the informant and in the state of an apriori suspicion the informant roped in the present appellant falsely which probability appears very prominently appearing from the evidence. 9. In the result, the appeal succeeds. The judgment of conviction and the order of sentence under consideration are hereby set aside. The solitary appellant Krishna Sah @ Krishna Gond is acquitted of the charges of which he had been found guilty of. The appellant is on bail. He shall stand discharged from the liabilities of his bail bonds. Appeal allowed.