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2014 DIGILAW 455 (PAT)

Radhika Singh v. State of Bihar

2014-04-15

JYOTI SARAN

body2014
JUDGMENT : JYOTI SARAN, J.:–This criminal revision application is directed against the judgment and order dated 21.11.2002 passed by the Additional Sessions Judge-cum- Fast Track Court No.3, Rohtas at Sasaram in Sessions Trial No.308 of 1994, whereby the trial court has acquitted the opposite party nos.2 to 4 of the charges framed under sections 302/34 and 307/34 of the Indian Penal Code and section 27 of the Arms Act. 2. This appeal was admitted for hearing on 16.8.2004 when notice was issued to the opposite party nos.2 to 4 who have since appeared through counsel Mr. Nirmal Kumar Sinha and Mr. Arun Kumar and the lower court records had been called for. 3. The prosecution case as according to the FIR, in brief is that in the night of 2.7.1992 while the informant Radhika Singh was sleeping in his room which was locked from inside, he heard a gun-shot sound and the cry of his wife who was sleeping in the verandah and when he came out and flashed his torch, he found the accused, namely, Lallan Singh, Sushil Singh, Lakshman Singh, Chandrahans Singh and Brinda Singh surrounding his wife. It is alleged that on being challenged, the accused shot his wife and in defence even the informant fired from his gun which perhaps hit accused Lallan Singh. It is further alleged that on hearing the sound the villagers started gathering and whereupon the accused fled away and accused Lallan Singh left behind his Lungi and his Chappals. 4. The matter was investigated and charge-sheet submitted against three of the accused who are the opposite party nos.2 to 4 herein while the accused Laxman Singh and Sushil Singh were not sent up for trial. Cognizance was taken of the offences punishable under sections 302/34 and 307/34 of the Indian Penal Code on 19.6.1993 and on 2.2.1994 the case was committed to the court of sessions for trial. After commitment the charges were framed and the matter was put on trial. Eight witnesses were examined by the prosecution to prove the case of whom P.W.4 Radhika Singh is the informant of the case and the sole eye witness and P.W.1 is his brother Uday Singh who has claimed to have seen the accused in the torch light and upon being threatened, he has stated that he hid himself fearing assault. P.W.2 is Mahesh Singh who is another relation of the informant. P.W.2 is Mahesh Singh who is another relation of the informant. P.W.3 is Indradeo Singh, P.W.5 is Ram Gobind Singh, P.W.6 is Qyamuddin, P.W.7 Ramanuj Rai is the investigating officer of the case and P.W.8 is Dr. R.N. Tiwary who conducted the autopsy on the deceased Malti Devi. 5. The defence set up by the accused was that the alleged act has been done by the informant himself on discovery of the infidelity of his wife and in the fit of anger he himself has shot his wife. It is further their case that whereas the informant was aged 70 years, the deceased was in between 20-25 years and used to sleep separately. According to the defence, the Lungi and Chappal belonged to the paramour of the deceased who had left it behind while fleeing away from the scene. However, no oral evidence was led by the defence except a statement of the informant recorded under section 313 of the Code in Sessions Case No.436 of 1978 in which he had stated his age as 55 years. 6. I have heard Mr. Krishna Prasad Singh, learned senior counsel appearing on behalf of the petitioner questioning the judgment and order of acquittal, learned Additional Public prosecution for the State and learned counsel appearing for the opposite party nos.2 to 4. 7. The grounds raised by learned senior counsel appearing for the petitioner to question the judgment and order of acquittal is that the evidence has not been appreciated by the trial court in its proper perspective and that the informant being an eye witness to the occurrence, his ocular description of the occurrence has been incorrectly disbelieved. It is the argument of learned senior counsel that the finding of the trial court being contrary to the evidence on records, the judgment and order of acquittal is unsustainable. The arguments of learned senior counsel for the petitioner has been seconded by the learned State Counsel. However standing in support of the judgment and order of acquittal, learned counsel for the opposite party no.2 to 4 has submitted that the entire evidence has been examined threadbare by the trial court which requires no interference especially in absence of any perversity shown by the informant-petitioner or any stark omission on the part of the trial court in appreciating the evidence. 8. 8. I have heard learned counsel for the parties and I have perused the materials on record. The scope of intervention under sections 397 read with section 401 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) by a High Court in a judgment and order of acquittal is rather circumscribed and unless there is gross perversity reflecting from the judgment under challenge or any relevant piece of evidence has been ignored which, if considered, would have resulted in conviction or the judgment is based on extraneous materials or the court concerned is jurisdictionally not empowered, it is not to be interfered with in a routine manner. The power is exceptional and has to be exercised in exceptional circumstances. 9. Law in this regard was settled by the judgments of the Supreme Court rendered more than 60 years back and reference in this regard is made to the case of D. Stephens Vs. Nosibolla reported in AIR 1951 SC 196 , Logendra Nath Jha Vs. Polai Lal Biswas reported at page 316 of the same citation and K. Chinnaswami Reddy Vs. State of Andhra Pradesh reported in A.I.R. 1962 SC page 1788. All these judgments were taken note of in a more recent judgment of the Supreme Court reported in (2008)3 SCC 423 (Johar Vs. Mangal Prasad) and this Court finds that the consistent view of the Supreme Court on this issue has been that such power is to be exercised only in exceptional circumstances and broadly by applying the following principles:— (a) Where the interest of public justice requires such interference; (b) Where the judgment and order under challenge suffers from manifest illegality; (c) Where the interference is required for prevention of miscarriage of justice; (d) Where the court has no jurisdiction to try the case; (e) Where the court has ignored some material evidence which was admissible or has taken into account such evidence which were inadmissible or had overlooked some evidence. 10. The circumstances discussed above flow from the opinion expressed by the Supreme Court and are merely illustrative and not exhaustive but nonetheless, the legal position discernible is that a mere second opinion on the same set of facts would not be sufficient to interfere with a judgment and order of acquittal. 10. The circumstances discussed above flow from the opinion expressed by the Supreme Court and are merely illustrative and not exhaustive but nonetheless, the legal position discernible is that a mere second opinion on the same set of facts would not be sufficient to interfere with a judgment and order of acquittal. A mere averment that a judgment is perverse or lacking in appraisal of evidence can certainly be no ground for interference unless the perversity is so glaring that no prudent court would have arrived at such conclusion. 11. Having outlined the scope of interference in matters questioning a judgment and order of acquittal, it is to be seen whether the petitioner has made out a case as such. 12. The discussion made by the trial court on the evidence led by the prosecution to drive home the charges demonstrates that P.W.1 Uday Singh who is brother of the informant Radhika Singh has claimed to have identified the accused in the torch light but he has also admitted in his deposition that as soon as he flashed his torch light, the accused challenged him and he immediately shut it off and hid himself. He has further deposed that the informant told him about the occurrence when he reached his house but this statement is not supported in the deposition of the informant as P.W.4. The torch which was the means of identification was also not led as evidence by the prosecution. P.W.1 is not an eye witness to the occurrence and even when he claims to have heard the gun-shot, while he was sleeping in his house, which was few houses away, neither did he wake up his family members nor any of them arrived at the place of occurrence although a number of villagers gathered in the house of Radhika Singh. The contradiction in the evidence of P.W.1 has been taken note by the trial court when his statement that he produced the torch before the investigating officer was denied by the investigating officer himself who was examined as P.W.7 and who also denied that any statement was given by P.W.1 that he concealed himself from the accused. The contradiction in the evidence of P.W.1 has been taken note by the trial court when his statement that he produced the torch before the investigating officer was denied by the investigating officer himself who was examined as P.W.7 and who also denied that any statement was given by P.W.1 that he concealed himself from the accused. Another relevant aspect of the matter is that although P.W.1 has claimed to have heard the gun-shot, it is not divulged as to how he gathered information that it came from his brother’s house and what prompted him to believe that the persons whom he met in the by-lane, were the accused, who had committed a crime in his brother’s house. 13. P.W.2, Mahesh Singh is not an eye witness rather has admitted to have reached the place of occurrence subsequently and when he was informed by the informant but the presence of this witness was never mentioned by the informant. Even this witness claims to have identified the accused even before he reached the place of occurrence. In fact except for the informant, all the other witnesses have admitted to have reached the place of occurrence after the occurrence. P.W.6 Qyamuddin in his evidence has stated that he learnt from P.W.5 Ram Gobind Singh that the informant himself had murdered his wife. P.W.6 Ram Gobind Singh has mentioned that co-accused Lakshman Singh and Sushil Singh were not present within the village on the date of occurrence rather were at Sasaram. 14. A relevant lacuna in the case is that although the Chappal and Lungi was stated to have been allegedly left behind by accused Lallan Singh but no attempt was made by the prosecution to substantiate this assertion Another startling feature of the matter is that the blouse and petty-coat of the deceased was found open and the Lungi and slippers were found from under the bed where the deceased was sleeping. Again although the reason for occurrence is stated by the informant to be a land dispute between the parties but there is complete absence of motive for the accused to have killed the wife and spared the informant even when the land dispute was with him. Again although the reason for occurrence is stated by the informant to be a land dispute between the parties but there is complete absence of motive for the accused to have killed the wife and spared the informant even when the land dispute was with him. Further according to the informant when hearing the gun-shot, he opened his door and flashed his torch, he claims to have seen the accused surrounding his wife and upon seeing the informant the accused Chandrahans Singh commanded the others to shoot the informant. This means that when the informant opened the door, his wife was alive and the accused upon seeing him attempted to kill him then how did the deceased suffer gun-shot injury. Even the medical evidence does not support the statement of the informant inasmuch as whereas he has stated that he heard a single gun-shot sound which woke him up, the medical evidence shows two entry and two exit wounds. 15. The records further manifest that no mark of violence was found at the place of occurrence and even the Chappal and Lungi were found beneath the cot on which the deceased was sleeping meaning thereby the manner of occurrence as stated by the informant by itself reflected doubts. It is in consideration of such inconsistencies and the improbabilities reflecting from the evidence of the prosecution as to the manner of occurrence and the involvement of the opposite parties as also taking into consideration the physical condition of the deceased at the time of occurrence coupled with the medical evidence that the court below has recorded a judgment and order of acquittal which neither suffers from any legal or procedural infirmity that would persuade this Court to interfere with the same. 16. For the reasons aforementioned, this criminal revision application is dismissed. 17. Let the lower court records received be returned to the court concerned forthwith. ?