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2014 DIGILAW 650 (PAT)

State of Bihar v. Dani Singh

2014-06-16

ANJANA PRAKASH, DHARNIDHAR JHA

body2014
ORAL JUDGMENT Per Dharnidhar Jha, J.-The present Appeal is directed against judgment of acquittal dated 19th July, 1991, passed by the learned Additional Sessions Judge VI, Gaya, in Sessions Trial No. 9 of 1990/32 of 1990, by which the learned trial Judge acquitted the respondents of charges under Sections 147, 148 and 302/149, IPC. As regards the two respondents, Dani Singh and Baijnath Singh, they were also acquitted of the charge under Section 302, IPC. 2. The prosecution case in short was that the deceased Jitendra Kumar Singh, who happened to be the son of PW 4 Raghubir Singh and full brother of PW 3 Awdhesh Sharma, was sleeping in a field where a pump set had been installed. PWs 2 and 5 were present at their khalihan and they saw the respondents moving towards the field in which the deceased Jitendra Kumar Singh was sleeping on a cot. PWs 3 and 4 also started moving in the direction and when they were at a short distance from the field, they saw that Dani Singh firstly fired a shot which hit Jitendra Kumar Singh. The second shot was fired by the respondent Baijnath Singh and that hit the deceased in his temple. The deceased was rushed to Patna Medical College and Hospital, but he died there. 3. There is no dispute in the fact that Jitendra Kumar Singh died of firearm injury, which injury was present on his left temple which had fractured the parietal and other associated bones of skull. There was no other injury on the dead body. 4. During the course of the trial, PWs 1 and 2, who were claimed by the prosecution as independent persons, came to depose in support of the prosecution charge, which charge was basically coming out of the evidence of PWs 3 and 4, i.e., the brother and father respectively of the deceased. PW 4 Raghubir Singh being the informant of the case. PW 5 was the Investigating Officer of the case and he after investigating the same had sent the respondents for their trial. 5. The defence of the respondents was of false implication as also that the witnesses had never been present on or around the scene of occurrence and had deposed against them for any particular reason. 6. PW 5 was the Investigating Officer of the case and he after investigating the same had sent the respondents for their trial. 5. The defence of the respondents was of false implication as also that the witnesses had never been present on or around the scene of occurrence and had deposed against them for any particular reason. 6. The learned trial Judge scanned the evidence of the witnesses and came to the conclusion that the very evidences of PWs 1 and 2 were, besides improbabilizing their own presence at the scene of occurrence was also improbabilising that of PWs 3 and 4. The learned trial Judge also held that the manner of occurrence was something different which was not supported by the medical evidence. In this connection, the learned trial Judge referred to the evidence of witnesses, like, PW 3, the son of the informant (PW 4), who stated that his father had been assaulted by the accused with lathi and was given 7-8 blows with it. The Doctor examining PW 4 had not been examined but still the learned trial Judge referred to the injury report of PW 4 to note that there was a solitary wound which would have been caused by a hard and blunt substance. However, the learned trial Judge hastened to add that while examining the person of PW 4, PW 5, S.I. Dular Sahu, the Investigating Officer of the case, had not found any perceptible injury on the body of PW 4 and had simply noted down his statement of complaining pain all over his body. Considering these anomalies in the prosecution evidence, the learned trial Judge held that the whole manner of occurrence was doubtful requiring passing the judgment of acquittal. 7. We have heard Shri Dilip Kumar Sinha, the learned Additional Public Prosecutor, in support of the appeal and Smt. Anju Narain, the learned amicus curiae, requested by us to assist on behalf of the respondents. 8. While being taken through the evidence of the witnesses, we could ourselves find out some of the anomalies in the evidence of the witnesses. As per PWs 1 and 2 both, the father and the son, i.e., PWs 3 and 4 could never be eye-witnesses to the occurrence. 8. While being taken through the evidence of the witnesses, we could ourselves find out some of the anomalies in the evidence of the witnesses. As per PWs 1 and 2 both, the father and the son, i.e., PWs 3 and 4 could never be eye-witnesses to the occurrence. Both have been equivocal in deposing before the trial Court that they themselves were attracted to the place of occurrence after having heard the sound of gun shot. PW 2 specifically stated that the informant and his son, i.e., PWs 4 and 3 respectively had also moved towards the place of occurrence the same way as did PW 2. But, applying care and caution, we have still examined the evidence of PWs 3 and 4 and we find that there is a very subtle but important deviation in the evidence of both PWs 3 and 4 as regards their claim of reaching the place of occurrence, in addition to there being some important aspects emerging from their testimonies which also go to the very root of their claim of being present at the scene of occurrence and to have seen the same. While PW 3 stated that he along with his father started together for the field where the deceased was already sleeping, PW 4, his father, was departing from that story regarding his arrival at the same scene of occurrence. PW 4 stated that he along with PW 3 and some others, who were not examined and who have been given up, as appears from the evidence of PW 3 in paragraph-4, were sitting in his khalihan, he saw the accused persons moving towards the place of occurrence and as such, PW 4 and his son along with others sitting there also started moving behind the accused persons. We may note that this evidence of seeing the accused by PW 4 while he was sitting with others along with PW 3 in his khalihan is in serious conflict with that of PW 3 who had given a very different story by stating that he and his father were moving towards his khalihan when they met the accused persons or rather saw them also moving in the same direction. We have already noted that these are very trifle matters but in a criminal trial where there is a serious challenge to the competence of the witnesses and their claim, we add some weight to these conflicting statements of PWs 3 and 4. Attaching this importance may be appreciated more appropriately when one could consider the evidence of PW 4, the informant of the case, who claimed having identified the accused persons and seen the occurrence in the night in flash of a torch light. He was cross-examined very seriously, as appears from his evidence, by the defence and was suggested that he was making a false statement as regards his claim regarding his presence at the place of occurrence as also his claim of seeing the accused persons and identifying the accused persons in a torch light, because he never produced the torch before any police authority including the Investigating Officer. The occurrence undisputedly had occurred sometime in mid night. There is no evidence on record that any source of light was already present at the place of occurrence. It was a field over which vegetables like brinjal and onion had been grown. The whole prosecution narration from the very inception was devoid of any claim from the prosecution regarding use of any source of light by any of witnesses in seeing and identifying the accused and especially the part of the occurrence regarding firing of shot by Dani Singh and Baijnath Singh. 9. Conflict of medical evidence and oral testimony would be material in most of the cases for one particular reason also which may suggest that a witness was making a false statement on two counts; firstly, that he was making a false claim as regards his presence at the place of occurrence and secondly, that he had never been an eye-witness to the occurrence and he was deposing falsely in the case. We have already discussed in some detail the lack or absence of source of light at the place of occurrence. We have also sufficiently indicated the conflicting narrations coming from PWs 3 and 4 as regards the very manner in which the two witnesses reached the place of occurrence. The witnesses like PWs 3 and 4 have consistently stated that the shots fired by the respondents Dani Singh and Baijnath Singh hit the deceased. We have also sufficiently indicated the conflicting narrations coming from PWs 3 and 4 as regards the very manner in which the two witnesses reached the place of occurrence. The witnesses like PWs 3 and 4 have consistently stated that the shots fired by the respondents Dani Singh and Baijnath Singh hit the deceased. In case of Baijnath Singh, the witnesses have specified the part of the body hit by the shot fired by him while in case of Dani Singh the organ of the body might not have been specified, but the witnesses were very emphatic in stating that his shots also had hit the deceased. In addition to the above, the witnesses also stated that the deceased had been given one lathi blow by respondent Parmanand Singh, who had also given 7-8 blows with his weapon (lathi) to PW 4. The curious aspect of the case is that the Doctor has not been examined which leaves the question to be decided as to whether the medical evidence could be considered or not. But we give some allowance to the prosecution and we find that the postmortem examination report recorded only one gun shot injury with no further injury on the dead-body. Likewise, the Investigating Officer did not find any mark of violence in the form of any injury on the person of PW 4 who was only complaining of pain to him. Thus, what appears to us is that the witnesses were not telling the truth on the manner of occurrence and as such, their claim of remaining present at the scene of occurrence as also of being eye-witnesses to the occurrence pales in serious doubt. 10. The other important aspects of the case, which was noticed by the learned trial Judge which also engaged our attention are that the Investigating Officer did seize the blood from the place of occurrence, but as per the prosecution evidence, the blood stained earth which was seized was not sent for chemical examination. The learned trial Judge has noticed these infirmities in the prosecution case also but these two infirmities to us appear not very material. The learned trial Judge has noticed these infirmities in the prosecution case also but these two infirmities to us appear not very material. We have only considered the evidence as regards the reasonability of the claim of witnesses of remaining present at the place of occurrence and seeing the same and we are vary considered in taking the view that their claim as also the prosecution story suffers from serious doubt. 11. In the result, we do not find any perversity in the judgment of acquittal. The appeal fails and the same is dismissed. 12. Let Smt. Anju Narain, the learned amicus curiae, be paid one fee of hearing by the High Court Legal Services Authority for assisting us in hearing present appeal. Let, for the above purpose, the copies of the first and last pages of the judgment be made over to Smt. Anju Narain. Appeal dismissed.