Research › Search › Judgment

Patna High Court · body

2017 DIGILAW 1397 (PAT)

Gagan Deo Tiwari v. State of Bihar

2017-11-02

PRAKASH CHANDRA JAISWAL

body2017
PRAKASH CHANDRA JAISWAL, J.:–Heard learned Amicus Curiae for the appellants & learned A.P.P. for the State on this criminal appeal and perused the record. 2. This criminal appeal has been filed against the judgment and order of conviction and sentence dated 17.07.2002 passed by the Additional District and Sessions Judge-cum-Fast Track Court No.3, East Champaran at Motihari in Sessions Trial No.85/97, arising out of Paharpur P.S. Case No.17/85, whereby the learned trial Court acquitted the accused Mukundi Sah and Nabi Mian and convicted the accused Gagandeo Tiwary and Mohan Tiwary for the offence punishable under Section 379 and 323 of the Indian Penal Code and slapped them with fine of Rs.9000/- and Rs.1000/- each for the aforesaid Sections respectively and in default of payment of fine to undergo R.I. for one year and no substantive punishment was awarded to the appellants. 3. The factual matrix of the case is that Paharpur P.S. Case No.17/85 was instituted under Section 395 of the Indian Penal Code against the accused persons, namely, Gagandeo Tiwary, Mohan Tiwary, Mukundi Sah and Nabi Mian and others on the basis of fardbeyan of Raghunath Ram son of Bhola Ram, resident of village Sariya Kanu Tola, P.S. Paharpur, District East Champaran, recorded by S.I. Surendra Prasad at Sadar Hospital, Paharpur on 25.02.1985 at 7 AM, with the allegation in succinct that informant Raghunath Ram inhabitate in his in-laws house along with his family members. In the past midnight, while he was sleeping in his house he woke up sustaining lathi blow and witnessed that Gagandeo Tiwari, Mohan Tiwary, Mukundi Sah and Nabi Mian along with 10 to 11 unknown accused persons intruded in his room. They took him out of the room. On the order of Gagandeo Tiwary, Mohan Tiwary, Mukundi Sah and Nabi Mian assaulted him by bamboo stick while other accused persons took out his she goat, dish (chhipa) and Lota from his house. Nabi Miyan shoved his mother-in-law. They also assaulted womenfolk of his house. The further allegation is that there is land dispute with Gagandeo Tiwary for around 15 years. Due to the aforesaid dispute, Gagandeo Tiwary along with his men intruded in his house and assaulted him and his family members and looted away his articles worth Rs.400/-. 4. Nabi Miyan shoved his mother-in-law. They also assaulted womenfolk of his house. The further allegation is that there is land dispute with Gagandeo Tiwary for around 15 years. Due to the aforesaid dispute, Gagandeo Tiwary along with his men intruded in his house and assaulted him and his family members and looted away his articles worth Rs.400/-. 4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against accused Gagandeo Tiwary, Mohan Tiwary, Mukundi Sah and Nabi Mian under Section 395 of the Indian Penal Code. 5. On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the accused persons and committed the case to the Court of Sessions and on transfer finally the case came in seisin of learned Additional District and Sessions Judge-cum-Fast Track Court No.3, East Champaran at Motihari for trial. 6. The charge against the accused persons was framed under Section 395 of the Indian Penal Code. The charge was read over and explained to them to which they pleaded not guilty and claimed to be tried. 7. To substantiate its case in ocular evidence the prosecution has examined altogether three witnesses, namely, Saraswati Devi as P.W.1, Raghunath Ram (informant) as P.W.2 and Madan Prasad as P.W.3. Out of them P.W.3 is a formal witness who has proved formal F.I.R. marked as Ext.1. 8. Statement of accused persons was recorded under Section 313 Cr.P.C. The case of the defence is complete denial of occurrence. In buttress of their case accused persons have not examined any witness rather filed and proved several documents marked as Exts.A to D. 9. After hearing the parties and perusing the record, the learned trial Court passed the impugned judgment and order of conviction and sentence as detailed in earlier paragraph. 10. Being aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence, the convicts have preferred this criminal appeal. 11. The point for consideration in this appeal is, as to whether the prosecution has been able to bring home the charge levelled against the appellants beyond all reasonable doubts or not. 12. It is submitted by learned amicus curiae for the appellants that admittedly there is land dispute between the parties. 11. The point for consideration in this appeal is, as to whether the prosecution has been able to bring home the charge levelled against the appellants beyond all reasonable doubts or not. 12. It is submitted by learned amicus curiae for the appellants that admittedly there is land dispute between the parties. The informant is inhabitating in his in-laws’ house and in order to oust the informant from the said house the accused persons are said to have intruded into his house. They have neither committed any offence of dacoity nor assaulted the informant or his family members rather they have been falsely implicated in this case due to land dispute planting the case of theft and assault against them. As per the witnesses’ account, there was dark night and there was no source of identification and the accused persons had covered their face by cloth so they could not have been identified by the informant and no T.I.P. of the accused persons have been conducted. The stolen articles have also not been recovered from the possession of the appellants. The informant and his wife has been examined by the prosecution and both are highly interested witnesses of the case. Though besides the informant and his wife, there were other persons present at the place of occurrence and there are houses of several persons in the vicinity of the house of the informant but none of the aforesaid persons have been examined by the prosecution to corroborate the aforesaid case of the prosecution. Thus, the prosecution has utterly and miserably failed to substantiate its case by adducing, consistent, trustworthy, reliable ocular and documentary evidence. 13. On the other hand, learned A.P.P. advocating the correctness and validity of the impugned judgment and order of conviction and sentence, submitted that the informant and his wife who were present at the place of occurrence and had witnessed the occurrence and had also been assaulted by the accused persons during the course of occurrence have fully supported the prosecution case and relying on their testimonies and other materials available on record, the learned trial court has rightly passed the impugned judgment and order of conviction and sentence, and the same is liable to be sustained and this appeal has no substance in it and is liable to be dismissed. 14. 14. From perusal of the prosecution case as adumbrated in the fardbeyan and in the statement of the informant (P.W.2) in his examination-in-chief, it appears that he has identified Gagandeo Tiwary, Mohan Tiwary, Mukundi Sah and Nabi Miyan in the occurrence. But the informant in para-11 of his cross-examination has stated that it was dark night on the date of dacoity. Lamp or lantern was not lighting. Dacoits had covered their face and put turban on head. In para-13 of his cross-examination he has stated that when he regained sense in the hospital none disclosed him the name of dacoits. Likewise, P.W.1-Saraswati Devi, who happens to be wife of the informant, has stated in para-3 of her cross-examination that there was dark night at the time of occurrence and dacoits had covered their face during the occurrence. As it was dark night and there was no source of identification and the accused persons had covered their face at the time of occurrence then, million dollar question arises as to how the aforesaid witnesses identified the appellants in the occurrence. As per the statement of the informant given in his examination-in-chief appellant-Gagandeo Tiwary ordered to eliminate them but P.W.1 has not corroborated it. Hence, the aforesaid statement of the informant regarding identification of the appellant-Gagandeo Tiwary on the basis of his voice also does not stand corroborated by P.W.1, who happens to be the wife of the informant and was present at the place of occurrence at the time of occurrence. 15. P.W.1 has stated in para-3 of his cross-examination that villagers, who had congregated at the place of occurrence had made hulla that the dacoits were men of Gagandeo Tiwary’s party but the said villagers have not been examined by the prosecution in corroboration of aforesaid statement of P.W.1. Hence, the aforesaid statement of P.W.1 regarding divulgence of name of appellant-Gagandeo Tiwary in the occurrence by the villagers also does not stand corroborated by the person uttering his name. 16. As per the prosecution case as alleged in the fardbeyan and in the statement of the informant, the litigation regarding the land is pending between the informant and the Gagandeo Tiwari for last 15 years. The informant in para-5 of his cross-examination has stated that there was a dispute with the accused persons regarding the homestead (Gharari) land. 16. As per the prosecution case as alleged in the fardbeyan and in the statement of the informant, the litigation regarding the land is pending between the informant and the Gagandeo Tiwari for last 15 years. The informant in para-5 of his cross-examination has stated that there was a dispute with the accused persons regarding the homestead (Gharari) land. P.W.1 has stated in para-5 of her cross-examination that a civil suit was contested with Gagandeo Tiwary regarding dismantling of her house. In para-6 of her cross-examination she has further stated that Gagandeo Tiwary had filed case against brother of informant, namely, Rajendra, Mukhiyaji and her husaband (informant) in 1982. Her father Indrasan Ram had filed a case against Gagandeo Tiwary. Alka (sister of P.W.1) had filed a case against Mohan Tiwary. The aforesaid aspect insinuates that both the parties are on inimical terms as they have fought civil and criminal cases since long. 17. As per prosecution case mother of the informant, namely, Saraswati Devi was also assaulted by the accused persons in the occurrence and witnesses, namely, Dhruv Narayan Giri & Jhaliya Devi are the fardbeyan named witness and as per the statement of informant made by him in para-4 of his cross-examination Alka and Mukhiya are witnesses of the case. In para-10 of his cross-examination he has stated that the houses of Fakir Hajra, Gulchan Hajra, Dasai Hajra, Vishwanath Mahto, Gugali Mahto, Jang Bahadur Mahto & Prayag Mahto are lying in vicinity of his house. P.W.1 in para-3 of her cross-examination has stated that villagers congregated at the place of occurrence and made hulla. In para-6 of her cross-examination she has further stated that the villagers are the witnesses of this case but the aforesaid persons and villagers, who had congregated at the place of occurrence & who happens to be material & independent witnesses of the case, have not been examined by the prosecution rather withheld by it and no explanation has been assigned by the prosecution for their non-examination. Hence, adverse inference is drawn against the prosecution. Thus, the prosecution case does not stand corroborated by independent witnesses of the occurrence. 18. Hence, adverse inference is drawn against the prosecution. Thus, the prosecution case does not stand corroborated by independent witnesses of the occurrence. 18. From perusal of the record, it appears that the occurrence is of midnight of 24.02.1985 and the fardbeyan of the informant was recorded on following day on 25.02.1985 at 7 AM but the informant in para-12 & 13 of his cross-examination has stated that he fell senseless sustaining assault and regained sense in the hospital. S.I. had recorded his fardbeyan in the hospital three days later to the occurrence. The aforesaid aspect of the case and the statement of the informant creates serious doubt about the prosecution case and recording of his fardbeyan by the S.I. 19. From perusal of para-3 & 4 of the cross-examination of P.W.1, it appears that the attention of the said witness was drawn towards contradiction between her statement given before the Court and that recorded by the I.O. under Section 161 Cr.P.C. I.O. of the case has not been examined by the prosecution, hence I perused the case diary and find the statement of this witness given before the Court quite different to that given before the I.O. under Section 161 Cr.P.C. regarding identification of the appellants in the occurrence & disclosing their name to the police. Thus, P.W.1 appears to have taken a different stand regarding complicity of the appellants in the occurrence before the Court & her testimony does not appear to be worth credence and reliable. 20. When the I.O. of the case is not examined by the prosecution and the attention of the witnesses has already been drawn towards their earlier statements and the Investigating Officer could not be brought to give his evidence, then in my considered opinion, the Court can peruse the case diary and find out as to whether or not the attention of the witnesses towards their previous statements were correctly drawn and to satisfy itself as to whether or not they had given similar statement before police. There are two parts of the case diary. First part contains such portion of the diary in which the Police Officer has recorded statement of the witnesses, about the incident or about other relevant facts which to that Police Officer, would be hearsay. There are two parts of the case diary. First part contains such portion of the diary in which the Police Officer has recorded statement of the witnesses, about the incident or about other relevant facts which to that Police Officer, would be hearsay. The Second party of the case diary contains that portion in which the Police Officer has himself seen or heard a particular fact and has recorded a fact out of his own perception. To this category would come recording about the inspection of place of occurrence making of seizure of certain incriminating articles or in some cases, when the Police Officer reaches the place of occurrence where the occurrence has not finished and he sees himself whole or part of the occurrence, recording of that. The latter part of the case diary cannot be used by the Court unless the Investigating Officer is examined because that would amount to using that portion of the case diary as evidence. Only the Investigating Officer can tell the Court in witness box as to what were his findings out of his own perception, so that he can be put to cross-examination over that. However the first part of the case diary consists, as already noted, the statement recorded by the witnesses. If the Investigating Officer comes to the Court for evidence and if he is asked to confirm those portion of the statement of the witnesses to which the attention of the witnesses was drawn, the Investigating Officer will say only what he has recorded as his statement in the case diary and cannot go beyond that. Now, the question is, whether that portion of the case diary can be looked into by the Court and used in the trial to aid the Court in reaching at a correct decision when the Investigating Officer is not brought before the Court. Sub-Section (2) of Section 172 of Cr.P.C. provides that the Court cannot only call for the case diary but may also use such diary to take aid in such trial. If the Court only has the power to look into the case diary and whatever it peruses to keep it only in mind and then to proceed to record the judgment keeping such impression only in mind that, in my opinion, cannot be the intention of the legislation. If the Court only has the power to look into the case diary and whatever it peruses to keep it only in mind and then to proceed to record the judgment keeping such impression only in mind that, in my opinion, cannot be the intention of the legislation. In my considered opinion, if the Court peruses any such things and uses it to its aid in trial, this must go in black and white as part of the judgment. The only limitation is that the court cannot use any portion of the case diary as evidence. In view of the aforesaid proposition of law and in view of the contradiction between the statements of the witness, as recorded before the court and that given before the I.O. under Section 161 Cr.P.C., the testimony of the said witness given before the court do not inspire my confidence to hold the conviction of the appellants relying upon the same. 21. P.W.1 & P.W. 2 happens to be highly interested witnesses of the case, being the wife of the informant and the informant himself respectively and they are on inimical terms with the appellants hence in view of aforesaid aspects of the case false implication of the appellants in the case by the prosecution cannot be ruled out. 22. I.O. of the case has not been examined by the prosecution and due to non-examination of I.O. the place of occurrence does not stand established. 23. In view of the aforesaid facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charge levelled against the appellants beyond all shadow of doubt by adducing consistent, trustworthy, reliable ocular and documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned trial Court is set aside and the appellants are acquitted from all the charges levelled against them. As the appellants are on bail they are discharged from the liability of bail bond. This criminal appeal is allowed accordingly. 24. Let a copy of the first and last page of this judgment be handed over to the learned amicus curiae. Learned amicus curiae be paid prescribed fee by the Patna High Court Legal Services Committee.