Yogi Ram @ Yogi Sah vs The State Of Bihar & Ors on 22 April, 2014

[Cites 47, Cited by 0]

Patna High Court

Yogi Ram @ Yogi Sah vs The State Of Bihar & Ors on 22 April, 2014

Author: Aditya Kumar Trivedi

Bench: Jayanandan Singh, Aditya Kumar Trivedi

      IN THE HIGH COURT OF JUDICATURE AT PATNA

                       Criminal Appeal (DB) No.963 of 2012
===========================================================
Yogi Ram @ Yogi Sah, son of Late Narshingh Sah, resident of Village-Manikpur,
P.S. Dhansaoi, Distt-Buxar
                                                           .... .... Appellant/s
                                       Versus
1. The State Of Bihar
2. Ram Pravesh Paswan, son of Bhagirathi Paswan
3. Rakesh Kumar Pandey @ Raju Pandey
4. Shashi Bhushan Pandey, From Sl. No.3 and 4 are sons of Ramayan Pandey,
residents of village- Manikpur, P.S. Dhansaoi, Distt-Buxar
                                                              .... Respondent/s
===========================================================
Appearance :
For the Appellant/s :      Mr. Bindhyachal Singh,
                           Mr. Ram Binod Singh,
                           Mr. Parijat Saurav, Advocates
For the Respondent/s :     Mr. Pankaj Kumar Sinha,
                           Mr. Ashok Kumar Verma, Advocates
===========================================================
CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGH
           and
           HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI)
Date:      22-04-2014

                 Appellant is the informant and father of the deceased. He

   has preferred this appeal under the provisions of proviso to Section

   372 of the Code of Criminal Procedure against the judgment and order

   dated 31st of July, 2012 passed by the Adhoc Additional Judge, 1st,

   Buxar in Sessions Trail No.1/09, whereby and whereunder the learned

   court below has acquitted the respondent nos.2 to 4 from the charges

   framed against them under Sections 302, 302/34 and 307/34 and

   Section 27(1) of the Arms Act.

                 2. The prosecution case in brief is that in the morning of

   19.08.2008

at 6.30 p.m. the appellant received information that his four bighas of land on khata no.1, which he had purchased from one 2 Premchand Keshri, was going to be ploughed by the four accused persons by means of a tractor, with the help of 3-4 other unknown persons. On this information, he along with his sons, namely, the deceased Sarabjeet Kumar Gupta, PW-4 Ajit Kumar Gupta, PW-2 Munna Kumar Gupta, proceeded to his land. When they reached Manikpur canal bridge they saw Ramayan Pandey carrying a licensed gun and Ranjan Pandey and Raju Pandey (respondent no.3) armed with country made pistols. On seeing them informant asked them as to why they were going to plough his field since the land was registered in his name. Upon this Ramayan Pandey gave his gun to Raju Pandey (respondent no.3) and ordered him to kill the informant. Raju Pandey took the gun and fired upon him. Informant somehow saved himself and tried to escape and hide. In the meanwhile, Rajesh Pandey, Ranjan Pandey and Shashi Bhushan Pandey caught hold of his son, Sarvajit Kumar Gupta (deceased) and Raju Pandey put the gun on his head and fired, as a result of which he got badly injured and fell down. Thereafter, Rajesh Pandey and Shashi Bhushan Pandey exhorted to wipe out the entire family of the informant and fired upon his another son. The driver of the tractor, accused Ram Pravesh Paswan (respondent no.3), also came running with a country made shot gun and fired upon them. However, other sons of the informant somehow escaped. Meanwhile, on hearing the firings, people from nearby came running, upon which the accused persons withdrew 3 giving threats. Thereafter, informant came to the place of occurrence and saw that his son Sarabjeet Kumar Gupta was dead. The informant claimed that he could identify the 3-4 unknown persons also accompanying the accused persons.

3. On the basis of this statement of informant, recorded on 19.8.2008 at 11.00 a:m, an FIR was registered. Investigation proceeded, and on completion of the same, police submitted charge- sheet against Shashi Bhushan Pandey and Raju Pandey, keeping the investigation pending against Ramayan Pandey, Ranjan Pandey and Rajesh Pandey and other 3-4 unknown persons. Cognizance was taken and the case was separated and was committed to the court of session for trail. During the trial prosecution examined altogether 10 witnesses, in which, PW-1 was the appellant (informant) and father of the deceased; PW-2 Munna Kumar Gupta and PW-4 Ajit Kumar Gupta were the other sons and eye witnesses; PW-3 Madan Pandey was a formal witness; PW-5 Fulan Singh and PW-6 Bhagwan Gupta were declared hostile; PW-8 Bal Krishan Rai was the I.O.; PW-9 Kameshwar Paswan was the witness of the inquest and PW-10 Dr.Ajay Kumar Pandey conducted the post mortem of the dead body. The defence also examined one witness, namely, Sonu Singh as DW-

1. The documents exhibited on behalf of prosecution in the trial were Fardbeyan (Ext.-1); the signature of Munna Kumar Gupta (Ext.1/1); the signature of Dhansoi officer in-charge (Ext.-2); seizure list of 4 tractor (Ext.-3); the entire Fardbeyan along with endorsement (Ext.-

4); formal FIR (Ext.-4/1); handwriting and signature of the police officer on the seizure list of tractor (Ext.-5); inquest report (Ext.-6); para 1 to 27 of the case diary (Ext.-7); supplementary case diary (Ext.-

8); signature of witness Bhagwan Gupta and Kameshwar Paswan (Ext.-9 and 10) post mortem report (Ext.-11); certified copy of the order sheet of title suit no.227/07 (Ext.-12); certified copy of order sheet of Misc. Case no.5/08 passed on 3.5.2009 (Ext.-13) and charge- sheet of Dhansoi P.S.Case No.30/07 (Ext.-13). The documents exhibited on behalf of the defence were order dated 20.12.2008 passed in Session Trial No.120/08 (Ext.-A); certificate of registration (Ext.- B); order of consolidation officer dated 21.09.2007 in case no.108 of 2006-07 (Ext.-C); order of SDO dated 2.5.2012 passed in case no.132(M)/08 (Ext.-D) and order of Hon‟ble High Court dated 24.7.2008 passed in Cr.Misc.No.990/08 (Ext.-E).

4. After conclusion of the trial, the Court below heard the arguments and reserved its judgment and finally, by the impugned judgment and order, it acquitted the accused persons of the charges. In the judgment, the learned Trial Court, after noticing the prosecution case, the defence plea and the oral as well as documentary evidence, produced by the parties in the trial, has proceeded to notice the evidence one by one. In paragraph 7 of the judgment, learned Trial Court has noticed in detail the statements made by PW-1 in his 5 evidence. Thereafter, in the same paragraph it has analyzed the evidence of PW-1 and has noticed that it appeared from his evidence that, at the time of alleged occurrence, PW-1 and his other sons were 50 to 100 yards away from the accused persons, whereas the deceased was only 20 to 25 feet away from them (accused persons), towards northern side of the culvert. The accused Raju Pandey had fired upon the informant, but he did not receive any injury, whereas his son (deceased) was caught by the accused persons. The learned Trial Court has found that there was no evidence on record as to whether there was any chase by the accused persons or whether accused persons went nearer the victim or the victim himself moved towards the accused persons. The learned Trial Court has noticed that it was specific case of the prosecution that the deceased was shot at by putting the nozzle of the gun at his temporal region, due to which he fell down and succumbed to his injury and thereafter also, firing was resorted to. The learned Trial Court has noticed that it was apparent that the informant and his family members did not inform the police.

5. Learned Trial Court has noticed the statements of PW-2 in detail, as made in his evidence in court, in paragraph 8 of the judgment. While analyzing his evidence the Court has noticed that, as per this witness also, occurrence had taken place when they had reached the culvert and when accused persons were standing 100 to 125 yards away from the said culvert and the deceased had also 6 received fire arm injury 100 yards away from the said culvert and had fallen down. The learned Trial Court has also noticed that this witness had also stated that the deceased was shot at by putting the nozzle of the gun at his temporal region.

6. The Trial Court has noticed the evidence of PW-3 in paragraph 9, who was a formal witness, and thereafter has noticed the evidence of PW-4, in detail, in paragraph 10 of the judgment. In its analysis of his evidence, the learned Trial Court has also noticed that when the accused Raju Pandey had put the nozzle of the gun at the temporal region of the deceased and had fired, no other accused was catching hold of him. The learned Trial Court has noticed that as per this witness at the point where the deceased had fallen down was a junction of the roads connecting the adjacent hospital with the bank of the canal. The learned Trial Court has also noticed that, as per this witness, father of the deceased (appellant) had managed to hide himself behind a tree.

7. Thereafter the learned Trial Court has noticed the evidence of PW-5, 6 and 7, who were declared hostile, in short, in paragraph 11, 12 and 13 of the judgment. In paragraph 14 of the judgment the learned Trial Court has noticed the evidence of I.O., PW-8, in detail, and then has noticed the evidence of PW-9 in paragraph 15 and evidence of the Doctor, PW-10, in paragraph 16. In paragraph 17 the learned Trial Court has noticed the evidence of the 7 sole defence witness.

8. From paragraph 18 onwards, the learned Trial Court has noticed the arguments of learned counsel for the defence and learned counsel for the prosecution as well, which were only on the lines whether, in absence of any finding of blackening and charring around the wound of entry on the temporal region of the deceased, the same discredits the prosecution story of Raju Pandey having put the nozzle of his gun against the head of the deceased and to have fired. The learned Trial Court has taken notice of principles and practice of Tailor‟s Medical Jurisprudence, relied upon by learned counsel for the defence and one Apex Court judgment, and also noticed the reference of Modi‟s Medical Jurisprudence and two other judgments of the Apex Court and one judgment of this Court, relied upon by learned counsel for the prosecution. Thereafter in concluding part of the paragraph, the learned trial court has come to the conclusion that there was no hard and fast rule of acceptance of findings of the doctors as overriding the ocular evidence, but it accepted that if there was any discrepancy in the medical evidence and ocular evidence, the ocular evidence must be consistent and trustworthy.

9. Thereafter in paragraph 19, the learned Trial Court proceeded to consider the ocular evidence produced in the trial by the prosecution. While discussing the ocular evidence, the learned Trial Court has opined that;- (i) no independent witness has been examined 8 and only father and sons have been examined by the prosecution, though it has been deposed that so many villagers at the time of alleged occurrence had assembled, but very surprisingly none of the family members of the deceased have stated about knowing even a single person amongst them; (ii) when the prosecution party had moved from the house jointly, then what was the reason for deceased to come so near to the accused persons (20 to 25 feet away) leaving their own persons far away (50 to 100 feet); (iii) as per the prosecution case, first, firing was resorted to aiming the informant, upon which the prosecution party ran away, but there is no evidence about the activity of the deceased, as to whether he tried to run away and hide himself, when he still had time. The evidence does not show that he tried to save himself or the accused persons ran to catch hold of him. Hence, the simple case that the accused persons caught him appeared unbelievable; (iv) I.O. has not found any sign of occurrence at the canal, nor in the inquest he has found any blood coming out from the wound of the deceased and the doctor has also not found blood around the wound and (v) the land dispute between the parties is admitted. Hence, the learned Trial Court has concluded that all the material witnesses came within the definition of interested witnesses and they could not be relied upon and in that circumstance, the medical evidence became of paramount importance which makes the story of firing by accused Raju Pandey by putting the nozzle of the 9 gun at the temporal region of the deceased highly doubtful.

10. In paragraph 20, the learned trial court has further examined the witnesses and has found infirmity in the evidence of the prosecution on the ground that (i) as per the case of PW-4, after first firing the witnesses had run away to hide themselves and the informant concealed himself behind a tree, but I.O. did not find any place, at the place of occurrence, to hide; (ii) it was unnatural that, save and except deceased, none else sustained or received even a scratch or injury on his person; (iii) the I.O. did not find empty cartridges from the place of occurrence; (iv) the witnesses have deposed that, on hearing sound of firing, many villagers had assembled, but none of the witnesses had disclosed the name of any of the villager assembled there; (v) the evidence of the witnesses shows that none of them informed the police which was surprising and created doubt on prosecution case; (vi) from the fardbeyan and in evidence the prosecution party claimed that they got information at 6.30 am and thereafter they proceeded to the place of occurrence, whereas PW-6 has deposed that occurrence took place at 7.00 am when he returned. PW-9 deposed that he was working in the field when he heard about the killing of the deceased and then he went to the place of occurrence and found the dead body and this witness said that he had heard the hulla at 5 O‟clock in the morning and many people had assembled there prior to his arrival, and the police 10 prepared some papers and obtained his signature at 6 O‟clock, whereas PW-6 had recorded the fardbeyan of the informant at 11.00 am on 19.8.2008 near Khiri Nahar, adjacent to the Manikpur hospital. Hence, the learned Trial Court has concluded that there was inconsistent statements with regard to the time of alleged occurrence of firing and death of the deceased and there was contradiction in the statements of the witnesses about the place of occurrence.

11. In paragraph 21, the statement of I.O. has been noticed, that Dy. S.P. had inspected the place of occurrence and had recorded the statement of witnesses and thereafter in his supervision note he had mentioned that Ramayan Pandey, Ranjan Pandey and Ranjit Paswan were not present in the village on the alleged date of occurrence, but this fact was not mentioned in the case diary and in this case only the other three accused were facing trial.

12. In paragraph 22, the learned Trial Court has noticed that date of occurrence was 19th of August and the accusation was that the accused persons were going to cultivate the field, but, as per the statement of the independent witnesses, cultivation work was over by the end of July and the land in question was near the canal bank area. Hence, the prosecution case that the accused persons were going to plough their field was also doubtful. Thereafter in paragraph 23, the learned Trial Court has noticed the case of defence that son of Ramayan Pandey, namely Raghwendra Pandey, had been killed 11 earlier, in which the deceased, his brother Munna Kumar, PW-2 and Kashi Sah, father-in-law of the deceased, were accused, which fact was admitted by the informant and his sons also. Hence, the plea of the defence of false implication became more probable. Finally in concluding paragraph 24, the learned Trial Court has held that the prosecution had not been able to establish its case beyond every shadow of doubt which it was under legal obligation to do. Hence the learned Trial Court has finally given benefit of doubt to the accused persons and has passed the judgment and order of their acquittal which is impugned in this appeal.

13. While assailing the judgment of acquittal, it has been submitted on behalf of appellant that the learned Court below had committed gross error during the course of appreciation of the evidence as available on the record. It has also been urged that the learned Trial Court had wrongly and illegally held that no independent witness was examined in this case although their presence was shown during course of commission of occurrence and, whoever have been examined, are own family members who, in the background of enmity persisting amongst the parties, were the interested and were inimical witnesses and so their evidences were fit to be discarded. Learned counsel also submitted that although relevant citations were placed to suggest that, in case of firing without leaving any gap in between there was no possibility of presence of charring as 12 well as tattooing over and around the injuries. However, the learned Trial Court did not consider it in right perspective and rejected the authority (Medical Jurisprudence of Modi). It has further been submitted that the learned Trial Court has wrongly and illegally held that as the blood was not oozing out from the injury, as is evident from the inquest report, the manner of occurrence, as suggested by the prosecution had become doubtful. It has also been submitted that the learned Trial Court had wrongly and illegally construed that on account of failure/defective investigation conducted by the I.O., the case of the prosecution was found to be dented adversely and disbelieved the prosecution version as narrated.

14. Further, it has been submitted that informant and his two sons Ajit and Munna have consistently supported the case of the prosecution, being an eyewitness to occurrence. Even during course of cross-examination their evidence have not been shaken and so, there was no scope for the learned lower Court to disbelieve their evidence.

15. It has also been submitted that enmity is a double edged sword. It is a motive which is found exposed that the parties are animus to each other and that is the reason behind commission of the occurrence.

16. Referring to the medical evidence, it has been submitted that the Doctor, who had conducted postmortem, had clearly opined that the time elapsed since death covers the time of 13 occurrence as furnished by the prosecution. Furthermore, it has been submitted that the Doctor was not at all cross-examined on the vital issue whether the charring, tattooing was possible in case the firing was made with the nozzle touching the body without leaving any gap as also whether in such situation, there was any possibility of blood oozing out. Apart from the fact that the accused cannot be permitted to take advantage of their own lapse whereunder they failed to cross- examine the doctor that, no such kind of injury could be found in the aforesaid situation, which however stands recognized by the authoritative opinion of Modi and hence, virtually, there was no material before the Trial Court to discard the same. But, the Trial Court proceeded and concluded in its own wisdom, contrary to the authoritative medical opinion.

17. It has also been submitted that it is a consistent case of the prosecution that they had not informed the police as there was no time for it. The I.O. had himself corroborated by deposing that on getting telephonic information, he rushed to the place of occurrence and found the dead body at the same place where, the witnesses had categorically stated regarding assault over person of deceased. Presence of tractor and seizure list thereof is an additional link which lends support to the prosecution version. However, learned counsel fairly conceded that some defects in investigation are apparent and for it so many reasons are possible, such as negligence, lapses, 14 incompetency and collusiveness etc. Therefore, findings of the learned Trial Court certainly happen to be hypothetical one and on account thereof the judgment is fit to be set aside.

18. Counter meeting the submission raised on behalf of the appellant, It has been argued on behalf of learned counsel for Respondents No. 2 to 4 that the prosecution evidence was suffering from ifs and buts and on account thereof, was unreliable and untrustworthy. He further submitted that right from the beginning, the conduct of the prosecution had become doubtful which rightly created suspicion over the manner as well as genesis of the occurrence as narrated by the prosecution. He submitted that it was the prosecution story that, while the prosecution party were at their house, they were informed by one person that accused persons were going to plough their field. The prosecution has failed to disclose the identity of the person who had informed them. They did not even choose to speak whether he was a co-villager or an outsider. Identity of the said person was not traced out during the course of investigation nor was he examined during the trial. He submitted that it was also evident from the evidence of all the three material witnesses that they had met accused persons near culvert, situated over canal before the land, which was going to be ploughed, and at that place, as suggested, the occurrence took place on account of query by the prosecution party as to why they (accused persons) were going to plough their field. He 15 submitted that it was nowhere said or suggested that the aforesaid land was ever ploughed by the Respondents, even during deposition, which was negated by the I.O. Furthermore, the query was made by the informant/appellant, Yogi Ram @ Yogi Sah, but at that moment neither any firing was made nor he was assaulted by the Respondents, although there was enough opportunity for them to escape therefrom in case, really the Respondents No. 2 to 4 carried an intention to commit murder.

19. It has further been submitted that from the prosecution evidence itself it is apparent that deceased, Sarbjeet had arrived at the alleged place of occurrence following the informant and his two other sons and, during course of firing so alleged, while informant and his sons ran hither and thither to save themselves, but Sarbjeet remained standing giving an opportunity to the Respondents to catch hold of him and shoot him from point blank range. Therefore, this part, so alleged by the prosecution, demolishes the whole prosecution version regarding manner as well as genesis of occurrence.

20. The motive for false implication is itself evident from the conduct of prosecution who surreptitiously concealed the fact that the deceased was an accused along with his father-in-law and others for commission of murder of Raghvendra, brother of respondent no. 2 & 3, at an earlier occasion and, only to pressurize the prosecution party, instant case had been filed.

21. Now coming to the cause of dispute, as advanced on behalf of prosecution, it has been argued that neither Khata number, nor Survey Plot number nor the sale deed, through which the informant had claimed to have purchased land, was exhibited, nor the vendor of the informant was produced, to support that there was any sort of dispute persisting in between him as well as Respondents.

22. Now coming to the medical evidence, it has been submitted that the Respondents never controverted the factum of murder but, the deceased being a menace for society, might have been murdered by his associate or somebody else in different manner. Therefore, it was expected from the prosecution to substantiate its case brushing aside all the infirmities, because onus in law was on the part of the prosecution to prove its case beyond reasonable doubt and for that, it was also obligatory on its part to tender unimpeachable evidence. Therefore, there was an obligation upon the prosecution to establish as to whether in such circumstances, there could be absence of charring or tattooing mark on the injury, as well as it was possible that blood may not come out from the injury. Having failed on that score also, the prosecution cannot be allowed to project its case by putting burden upon the Respondents illegally.

23. It has further been submitted that the objective finding of the I.O. has completely demolished the case of the prosecution, who, during course of his evidence, had categorically stated that he 17 had not found trampling marks at the spot as well as any other sign corroborating the commission of occurrence at that very place, such as absence of empty cartridges, blood coming out from the wound, the place where there was only possibility to hide etc.

24. It has further been submitted that the learned Trial Court had minutely observed the deficiencies persisting on the record while appreciating the evidence of the prosecution meticulously before recording judgment of acquittal.

25. It has also been submitted that once there is a judgment of acquittal, which could be supported from the evidence available on the record then in that event while exercising appellate jurisdiction, the finding of acquittal can not be upset.

26. The Hon‟ble Apex Court had an occasion to clarify the ambit & scope of Appellate Court while adjudicating upon judgment of acquittal. In the case of Mookkiah & Anr v. State rep. by the Inspector of Police, Tamil Nadu as reported in AIR 2013 SC 321, while deciding the issue taking into account series of earlier decisions held:-

4) It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us 18 analyze the scope and power of the High Court in an appeal filed against the order of acquittal This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573]

5) In State of Madhya Pradesh vs. Ramesh and Another, (2011) 4 SCC 786, this Court, while considering the scope and interference in appeal against acquittal held:

"15. We are fully alive of the fact that we are dealing with an appeal against acquittal and in the absence of perversity in the said judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. It is settled proposition of law that the appellate court being the final court of fact is fully competent to reappreciate, reconsider and review the evidence and take its own decision. Law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court and there can be no quarrel to the said legal proposition that if two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal."

6) In Minal Das and Others vs. State of Tripura, (2011) 9 SCC 479, while reiterating the very same position, one of us, P. Sathasivam, J. held:

"14. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed."

7) In Rohtash vs. State of Haryana, (2012) 6 SCC 589, this Court held:

"27. The High Court interfered with the order of acquittal recorded by the trial court. The law of interfering with the judgment of acquittal is well settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court‟s acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide State of Rajasthan v. Talevar, (2011) 11 SCC 666 and Govindaraju v. State, (2012) 4 SCC 722)"

8) In a recent decision in Murugesan & Ors.

vs. State Through Inspector of Police, 2012 (10) SCC 383, one of us Ranjan Gogoi, J. elaborately considered the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure while hearing the appeal against an order of acquittal passed by the trial Judge. After adverting to the principles of law laid down in Sheo Swarup vs. King Emperor, AIR 1934 PC 227 (2) and series of subsequent pronouncements in para 21 summarized various principles as found in para 42 of Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415 as under:

"21. A concise statement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup1 is to be found in para 42 of the Report in Chandrappa v. State of Karnataka. The same may, therefore, be usefully noticed below: (SCC p. 432) "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.


            (3) Various expressions, such as,
„substantial and compelling          reasons‟, „good
and     sufficient    grounds‟,       „very       strong

circumstances‟, „distorted conclusions‟, „glaring mistakes‟, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of „flourishes of language‟ to emphasise the reluctance of an appellate court to interfere with 21 acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

27. That means to say, re-appraisal of evidence is permissible while considering the appeal against acquittal with a note of caution that whenever the evidence speaks with regard to possibility of presence of two versions, one going in favour of accused and the other adverse to the accused, then in that event, the judgment of acquittal rendered by the trial court is to be confirmed.

28. To begin with the infirmities so found by the learned Court below, first of all medical evidence is taken up. PW-10, Dr. Ajay Kumar Pandey had conducted postmortem examination over the dead body of Sarbjeet Kumar Gupta at 6.10 A.M. on 20.08.2008 and had found ante mortem injuries. At the present moment it looks pertinent to note that from Column 1 of P.M. report (Ext-8) the dead 22 body was received at mortuary on 09.08.2008 at 7.20 A.M. and as per Ext-6 (inquest report), it was prepared on 19.08.2008 at 10.30 A.M. at the spot itself. The ante mortem injuries found by the doctor were following:-

External Examnition:-

Rigour mortis present in all forelimbs:- (A) Wound of entry- Lacerated wound 2.5 C.M.x 2 C.M. cavity deep about left ear on the left temporal bone.

Redness around the margin, inverted margin with profusion of brain material from it.

(B) Wound of exit:-

Lacerated wound- 4 C.M. x 3 C.M.x cavity deep- margin everted, with brain material coming out of the wound, placed about right ear alone, on right temporal bone.

Internal Examination:

Fractured left and right temporal bone. Fractured parietal bone.

Intra cerebral haemorrhage with lacerated brain material and meninges.

Chest- lung pale, Heart- both chambers contained some blood. Liver- N. A.D with pallor, Kidney, spleen-Pale. Stomach contains semi digested food material.

Cause of death:- Shock and haemorrhage due to fire arm injury/ like country made katta over brain. Time elapsed since death 12-20 hours.

29. During cross-examination in para-8, he (PW-10) had categorically stated that both the injuries were result of one fire, that means to say were corresponding to each other, though he did not say that in clear words. He had further disclosed that he had not found blackening or charring around the injuries. He had also stated that immense bleeding was expected from the injury. Furthermore, the doctor was not in a position to state the exact distance in between 23 assailant and victim. Then he had stated that presence of semi digested food was in process of digestion. He had further stated that vegetarian food digests after four hours. He stated that if there is clear motion in the morning, no semi digested material can be found (generally). He further stated that if a person takes meal at 1:00 P:M, the food material would be digested. There was presence of semi digested food at the time of postmortem examination which the doctor had spoken at the time of his evidence and the defence had also cross- examined him on this score. However, neither PW-1 nor PW-2 nor PW-4 have been cross-examined whether before leaving their Darwaja, they had taken food or not. Abnormal, habits of the peasants have been taken into account in the case of Mookkiah & Anr v. State rep. by the Inspector of Police, Tamil Nadu (supra) at para-17 which is quoted below:-

17) As rightly pointed out by the State counsel, the cut injuries observed by the doctor tally with he narration given by PW-1 in Exh.P-1 aswell as in his evidence and the evidence of PW-5.

The doctor also opinedthat the death of the deceased might have occurred 28-30 hours prior to the post mortem. It is not in dispute that the doctor commenced the post mortem on 13.05.1992 at 10.30 hours and as per the prosecution case, the death of the deceased occurred at 05.30 a.m. on 12.05.1992. A perusal of these details clearly show that the opinion given by the doctor tallies with the prosecution version that the death might have occurred 28-30 hours prior to the post mortem. The trial Court, taking note of the evidence of PW-2 that there were around 300 grams semi digested food particles (rice) in the stomach of the deceased, disbelieved the time of occurrence as projected by the prosecution. It is true that PW-2, while deposing 24 before the Court, answered in the cross-examination that the death might haveoccurred 34 hours prior to her performing the post mortem and the partly undigested rice would show that rice might have been consumed by the deceased 2-3 hours before his death. However, the Investigation Officer (PW-11), during the cross-examination, highlighted that during the course of his investigation, he ascertained from the father of the deceased that the deceased consumed food at 11.00 p.m. during the said intervening night. As rightly observed by the High court, since the parties are hailing from a remote village, the villagers might take food even at odd hours after finishing certain work in their fields and it cannot be precisely predict based on the undigested food particles alone. The High Court has adverted to Modi‟s Medical Jurisprudence and Toxicology, 22nd Edition and after noting all the relevant details has rightly concluded that the observation of the doctor relating to the injuries and her general opinion at the time of death which occurred 28-30 hours tally with the narration of eye-witnesses and concluded that in such a case mere inference of the doctor with reference to undigested food particles could not threw the prosecution case. We fully agree with the discussion and the ultimate conclusion on this aspect by the High Court. The evidence of PWs 1 and 5 coupled with the version in Exh.P-1 would state that the occurrence took place at 5.30 a.m. while the deceased was passing stool, as such, the timings mentioned by the doctor, occurrence and other witnesses tally with the narration. Accordingly, we reject the contention raised by the counsel for the appellants with reference to existence of undigested particles n the post mortem by PW-2. Other objections:

30. The judgment of the learned lower Court has in para- 18, dealt with the aspect of non presence of blackening, charring around the injury, but it did not give its findings on this issue. Both the sides have referred the authority on this score. The learned Trial 25 Court also failed to acknowledge, apart from the others, corresponding injury having over head of the deceased. Modi has dealt with the issue elaborately in his celebrated book i.e., Modi‟s Medical Jurisprudence and Toxicology, 23rd Edition at page 716. " in contact wounds of the skull, the tissues may crepitate because of impounded gases (muscles fibres discoloured cherry red beneath, due to carbon monoxide) but there will be no evidence of burning, tattooing or soot; occasionally there may be a circular impression of the muzzle on the skin around the entry hole. The edges (of the entry wound contact which is large and cruciate) may be ragged and everted and the exit wound is smaller."

31. Present questionnaire is found properly answered under page 721 whereunder it has been held, "moreover, these signs may be absent when the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame smoke and particles of the gun powder will all follow the track of the bullet in the body".

32. Therefore, putting any sort of adverse remark by the learned lower Court with regard to and non presence of charring or blackening, tattooing around the injury is found fully explained. Moreover, as disclosed above the learned Trial Court has left the issue un-answered.

33. Before coming to the evidence of material witness, a cursory perusal of the record suggests that PW-3 is a formal witness 26 who had exhibited formal F.I.R; PW-5, Phulan Singh was declared hostile as he failed to support the case of the prosecution; PW-6, Sri Bhagwan Gupta had stated that while he was weeding in his field on 19.08.2008 at about 7:00 or 8:00 A.M., police had arrived, the dead body was lying. However, he had got no other information. Police had taken his signature and so he was also declared hostile. PW-7 is Baban Singh @ Baban Yadav who had stated that on 19.08.2008 at about 7.00 A.M. while he was at his house, he heard sound of firing. Two rounds were fired and then people came raising alarm. Ramayan Pandey was engaged in ploughing which was forbidden by Jogi Sah and his family members which he came to know at Chowk and then he came to the place of occurrence and found the dead body lying near canal. He had not seen the occurrence and so was declared hostile. However, he happens to be witness of seizure of Tractor (Ext-

3). PW-9, Kameshwar Paswan had stated that about two years ago while he was at his field, he came to know that Raju Pandey had committed murder of Sarabjeet over which he rushed to the place where he found the dead body of Sarabjeet lying. Police had prepared the document over which he had signed. PW-6, PW-9, in the aforesaid background happen to be witnesses of Inquest (Ext-5).

34. The aforesaid evidence is of the independent witness, though taking a somersault in their evidence before Court leaning towards defence, but, confirms the place of occurrence where they had 27 seen the dead body of Sarabjeet. Much emphasis has been put by the learned Trial Court, cross-examination of PW-9 in para-4 wherein he had stated that he had heard rumour at about 5:00 A.M. regarding death of Sarabjeet. Aforesaid timing cannot be the conclusive in the background of his own disclosure that he was at the field when he came to know regarding murder of deceased by Raju Pandey. In para- 6, he had shown presence of Darogajee at about 6:00 A.M. and so, his evidence is to seen in the background of his character as being hostile to the prosecution.

35. For the purpose of inquest to be attached during consideration of prosecution case, it is useful to refer the case of Brahm Swaroop v. State of U.P. as reported in (2011) 6 SCC 288 and the relevant paragraphs are:- 9, 10, 11, 12, 13

9. The whole purpose of preparing an inquest report under Section 174 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating as in what manner, or by what weapon or instrument such wounds appear to have been inflicted. For the purpose of holding the inquest it is neither necessary nor obligatory on the part of the investigating officer to investigate into or ascertain who were the persons responsible for the death. The object of the proceedings under Section 174 CrPC is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings i.e. the inquest report is not the statement of any person wherein all the names of the persons accused must be mentioned.

10. Omissions in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery, etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Evidence of eyewitnesses cannot be discarded if their names do not figure in the inquest report prepared at the earliest point of time. The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest. (See Pedda Narayana v. State of A.P.(1975) 4 SCC 153, Khujji v. State of M.P. .(1991) 3 SCC 627, George v. State of Kerala .(1998) 4 SCC 605, Sk. Ayub v. State of Maharashtra .(1998) 9 SCC 521, Suresh Rai v. State of Bihar, .(2000) 4 SCC 84 Amar Singh v. Balwinder Singh, (2003) 2 SCC 518 Radha Mohan Singh v. State of U.P. (2006) 2 SCC 450 and Aqeel Ahmad v. State of U.P. (2008) 16 SCC 372)

11. In Radha Mohan Singh(2006) 2 SCC 450 , a three-Judge Bench of this Court held: (SCC p. 460, para

11) "11. ... No argument on the basis of an alleged discrepancy, overwriting, omission or contradiction in the inquest report can be entertained unless the attention of the author thereof is drawn to the said fact and he is given an opportunity to explain when he is examined as a witness in court."

12. Even where the attention of the author of the inquest is drawn to the alleged discrepancy, overwriting, omission or contradiction in the inquest report and the author in his deposition has also admitted that through a mistake he omitted to mention the crime number in the inquest report, this Court has held that just because the author of the report had not been diligent did not mean that reliable and clinching evidence adduced by the eyewitnesses should be discarded by the Court. [Vide Krishna Pal (Dr.) v. State of U.P. (1996) 7 SCC 194]

13. In view of the law referred to hereinabove it cannot be held that any omission or discrepancy in the inquest is fatal to the prosecution‟s case and such omissions would necessarily lead to the inference that FIR is ante-timed. Shri N.K. Sharma, Sub-Inspector (PW

7), had denied the suggestion made by the defence that till the time of preparing the report the names of the accused 29 persons were not available. He further stated that the column for filling up the nature of weapons used in the crime was left open as it could be ascertained only by the doctor what weapons had been used in the crime. Thus, the submissions made in this regard are preposterous.

36. The learned lower Court took notice of difference of timing disclosed by the witnesses during the course of evidence. The evidence of the PWs can not be taken into consideration to disbelieve the prosecution case, as they all have, in the conclusion stated that it was morning hour and further they were bound to say the same when they have shown their hostility to prosecution.

37. Evidence of material witnesses, which comprise of deposition of PW-1, the informant, PW-2, Munna Kumar Gupta @ Munna Gupta and PW-4, Ajit Kumar Gupta who are father and sons. PW-1 in his examination had deposed that after being informed on 19.08.2008 at about 6.30 A.M., that Lalan Pandey, Ranjan Pandey, Raju Pandey, Shashi Bhushan Pandey and Rajesh Pandey were going to plough his field which he had purchased from Prem Chand Koiri, with a tractor driven by Ram Pravesh Paswan. He had also disclosed that at that very time a proceeding under Section 144 Cr.P.C. was going on. On this information he along with his son, Ajit, Sarabjeet and Munna proceeded and as soon as they reached near the culvert over the canal they saw Ramayan Pandey armed with a gun, Ranjan Pandey, Rajesh Pandey, Shashi Bhushan Pandey and Raju Pandey along with 3-4 persons being armed with country made pistol. On 30 query Ramayan Pandey exhorted and handed over his gun to Raju Pandey who fired on account of which he ran therefrom. Then thereafter, they all apprehended his son Sarabjeet and Raju Pandey shot at his temporal region on account of which his son fell down and died. Thereafter, all of them began to fire. Ram Pravesh fired at his son Munna Kumar but he escaped therefrom. Police had come before whom he had given his statement over which he put his signature. During cross-examination at para-7, he had admitted that during course of investigation his son, deceased, Sarabjeet along with Kashi Sao, Kripa Paswan, Munna @ Hazari Gupta were identified as accused regarding murder of Raghwendra son of Ramayan Pandey and the case is running in the court of ADJ-FTC, Siwan. In para-16, he has admitted that accused persons are claiming land on the basis of settlement. Then he denied the suggestion that Ramayan Pandey is instrumental in getting his homestead land. He had failed to disclose the identity of the person who informed him. In para-14, he had admitted that he had not shown the field (disputed land) to the police. In para-17, he had admitted that police had reported with regard to possession of Ramayan Pandey over the disputed land. In para-18, he had disclosed that the tractor was seized by the police near the canal. In paragraph-20 he had narrated that they were not armed with any weapon; no injury was caused to him and his two sons Munna and Ajit; accused persons were 50 to 100 yards away from him and he was 31 away at the distance of 50 yards from the culvert while his sons were 50-60 yards south. In paragraph-21 he had disclosed that Sarabjeet was 20-25 ft away from accused at northern side. In paragraph-22 he had disclosed that firing was made from what distance, he could say and he had not seen the Doctor‟s report. In paragraph-23 he had accepted the fact that he had not informed the police; Chaukidar had informed the police through phone and he had enquired from Chaukidar. In paragraph-24 he had stated that he had not informed the police earlier that blood-shed was apprehended. Police had come at about 11:00 A.M. Then had denied the suggestion that no such type of occurrence had taken place. He had further denied the suggestion that the accused persons had already ploughed the field before the occurrence. Then had denied the suggestion that this case has falsely been filed and in the manner alleged and he had deposed the wrong facts.

38. P.W.2 during examination-in-chief had reiterated the same version as had been deposed by P.W.1 stating that on the alleged date and time of occurrence, while he along with his father and brother Sarabjeet and Ajit were sitting at his Darwaja, they were informed that Lalan Pandey, Ranjan Pandey, Raju Pandey, Shashi Bhushan Pandey and Rajesh Pandey were going to plough his field along with tractor driven by Ram Pravesh Paswan, over which all of them proceeded to the field. When they reached near culvert over the 32 canal they saw Ramayan Pandey armed with a gun, Ranjan Pandey, Rajesh Pandey, Shashi Bhushan Pandey and Raju Pandey along with 3-4 persons being armed with country made pistol. On query Ramayan Pandey exhorted and handed over his gun to Raju Pandey who fired at his father. They had escaped therefrom to save themselves and during course thereof Ranjan, Rajesh and Shashi Bhushan caught hold of his brother Sarabjeet and Raju Pandey shot at him on account of which he sustained injury and fell down. Ram Parvesh fired at him but he had a narrow escape. 3-4 unknown persons were also there whom he had not identified. After hearing sound of firing the villagers came seeing whom the accused persons escaped therefrom. Thereafter, when he came to the place of occurrence he found his brother dead. He had informed the Chaukidar. He made signature as attesting witness on the Fard-e-beyan. He also identified the accused.

39. During cross-examination, he had admitted that the land dispute was going in between the parties. He had further admitted that they were made accused in a case with regard to murder of Raghwendra Pandey. In para-9, he had disclosed that the accused persons were 100-125 yards away from the culvert; Sarabjeet fell down at a distance of 100 yards from the culvert and the person who had given the news was not known to him. In para-11, he had said that they have not informed the police regarding illegal activities of the 33 accused persons. In para-12, he had specifically disclosed that Raju Pandey had fired only once at his brother. In para-13, he had also stated that except Sarabjeet none other had sustained injury. In para- 14 he had denied the suggestion that instant case was filed to protect themselves from the murder case instituted by the prosecution party with regard to the murder of Raghavendra.

40. PW-4, another son of informant, PW-1 had also reiterated the same version stating that on the alleged date and time of occurrence, while he along with Sarabjeet, Munna, he himself along with father were sitting at his Darwaja, somebody came and informed that Raju Pandey, Rajesh Pandey, Ramayan Pandey, Shashi Bhushan Pandey along with Ram Parvesh Pandey, driver of the tractor, were going to plough his field upon which they went and found the accused persons near culvert, out of whom Ramayan Pandey was armed with gun, while others were armed with country made pistol. On query made by his father, Ramayan Pandey exhorted and handed over the gun to Raju Pandey who fired, on account of which, they all began to scatter in order to save their lives. During midst thereof, Raju Pandey shot at his brother Sarabjeet on his head, on account of which he fell down. Ram Parvesh also fired. Anyhow, they saved their lives. 3-4 unknown persons were also along with them whom he did not recognize. Hearing the sound of firing, villagers assembled, on account of which the accused persons escaped therefrom. Thereafter, 34 they all came to the place of occurrence and found his brother dead. He informed the Chaukidar, upon which Darogajee had come. However, in para-12, there appears to be some contradiction. In para- 15, he had stated that they were 100 yards away from the culvert where the accused persons were present. In para-17 also, there appears to be some contradiction. In para-20, he had stated that the other accused persons began to fire on the exhortation of Ramayan Pandey and they all had scattered in different directions. He had taken protection of the ridge which was 20 yards away from the culvert. His father had taken protection behind a tree which was 50 yards away from him at south eastern corner. Munna had taken shelter at hospital. At that very time, Sarabjeet was near culvert from where the road was going towards hospital. The accused persons were 100 yards away from there. Tractor was 5-6 yards ahead east to the culvert. Sarabjeet was shot at in a standing position and thereafter, he fell down. In para- 25, he had disclosed that Sarabjeet fell down on the road going towards hospital from canal, which was only one hand away from the bank of the canal. Then had admitted that Sarabjeet, Munna, father-in- law of Sarabjeet along with others were accused in a case instituted for murder of Raghwendra. In para-27, he had disclosed that at what time they had come near the dead body of Sarabjeet, he could not say. He had also stated that when they reached near the dead body of Sarabjeet, a large number of co-villagers were present there, but he 35 could not name any of them. He also stated that none of his co- villagers supported the case of the prosecution.

41. PW-8 is the I.O.. He had stated that on 19.08.2008, he was O/C of Dhansoi P.S. He had recorded Fard-e-beyan of Yogi Sah on the basis of which Dhansoin P.S. Case No. 35/2008 was registered. Then he had exhibited those documents. He took up investigation after recording Fard-e-beyan and inspected the place of occurrence. He had found the dead body of Sarabjeet lying on the road which was going towards hospital from Manikpur culvert. He had found injuries over his head, left side as well as right side. Blood was coming out. Brain matter had also come out. Copious blood, at the place of occurrence, was seized. He had found tractor bearing Registration No. BR3-6258 which was seized on account of disclosure that the accused persons intended to plough the field with the aforesaid tractor. Then he had given the topography of the place of occurrence. He had also identified and exhibited the seizure list and inquest report. He had taken statement of witnesses. On being transferred, he had handed over the investigation to Uday Bahadur and accordingly exhibited the case diary. During cross-examination in para -18, he had stated that he had received rumour regarding affray in connection with the land dispute between Ramayan Pandey and Yogi Sah. The aforesaid information was received through telephone which was entered into Sanha No. 328 of 2008 though the same had not been mentioned in 36 the case diary. In para-21, the defence had asked for his opinion over the statement made by the informant Yogi Sah, that when they were approaching near culvert they had seen the accused person, which suggests that the prosecution had not reached near the culvert. In para- 22, he had stated that he had not found any sign of occurrence near the culvert. In para-23 he had admitted that he had not mentioned in the inquest report regarding oozing of blood from the injury. In Para-24, he had admitted that he had not made seizure list with regard to the seizure of the blood stained earth. In para-25, he had admitted that before recording further statement of informant, Yogi Sah, he had already prepared inquest report as well as seizure list. In para-24, he had mentioned the fact that he had simply seized the tractor and not its equipment. In para-28, he had mentioned the fact that he had not tried to inspect the land lying under Khata No. 1 and 6. Informant also had not shown it as it was rainy season. He had not tried to inspect trampling mark at the place of occurrence. On the day of occurrence, the Dy. S.P. had also arrived, who, in his supervision note, had mentioned the fact that Ramayan Pandey, Ranjan Pandey and Rajesh Pandey were not at all present in the village. He had not mentioned the fact in his case diary that the Dy. S.P. had supervised the case in his presence. In para-31, he has mentioned the fact that he had gone to Patna High Court for verification of alibi of Ranjan Pandey. At the first instance, he had denied the suggestion that he had recorded the 37 statement of Rana Pratap Singh and Rajendra Prasad Singh but again said that he had taken their statement. In para-33, he had disclosed that at about 7.30 A.M., he was informed about the occurrence, while during course of investigation it was disclosed as 6.30 A.M. He had not seen the place where the prosecution party hid themselves. In para-35, he had admitted that he had neither found the dead body nor tractor nor blood at Khiri canal.

42. On account of absence of injury over the person of PWs-1, 2 and 4, there is serious challenge to their status as eyewitness on the ground that there happens to be consistent evidence of the prosecution that after shooting at Sarabjeet, the accused persons also fired at them also. This aspect has been considered by the Hon‟ble Apex Court in the case of Gurmail Singh v. State of Punjab & Anr. as reported in (2013) 4 SCC 228 under para-40 and 41and it has been held:-

40. The learned counsel for the appellants submitted that the presence of PW- 4 Joginder Singh at the scene of the crime was doubtful and therefore the complaint lodged by him with the police ought not to be taken note of. In this context, it was contended that the absence of any injury on PW- 4 Joginder Singh strongly suggests that he was not present when the incident occurred.

41. We are of the opinion that too much is being read into this aspect of the case. Joginder Singh‟s sister, Charanjit Kaur was married to Mohinder Singh son of Gurdial Singh. After Mohinder Singh‟s murder on 20th February 1989, Charanjit Kaur married Kewal Singh, another son of Gurdia Singh.Under the circumstances, the presence of Joginder Singh in the village is explained.

Joginder Singh would surely have been aware of the 38 enmity between the parties and when the attack took place, he hid himself so as to escape the wrath of the appellants. This is quite natural, considering the unfortunate events that had taken place only a few weeks earlier. It is for this reason that Joginder Singh did not receive any injury, as explained by him.

43. Also challenging the status of the witnesses, it has been submitted that there is absence of names of villagers in the Fard- e-beyan. In likewise manner, none of the PWs had disclosed the names of the witnesses during their evidence and so far as status of PWs 1,2 and 4 are concerned, all are inimical and interested witnesses. This aspect has been considered by the Hon‟ble Apex Court in the case of Subal Ghorai & Ors. v. State of West Bengal as reported in (2013) 4 SCC 607 and it has been dealt with under para-39 in the following way.

39. It is true that the prosecution has relied on the evidence of interested witnesses but, interested witness is not necessarily a bad witness. In fact, if the witness is related to the deceased, there is less chance of his leaving aside the real assailants. The evidence of interested witness has to be analyzed with care. But, once the court comes to the conclusion that it is truthful and in accord with the relevant circumstances on record, the court should not hesitate to accept it and record conviction on the basis thereof. In this case, all the eye- witnesses are consistent about the prosecution case as regards assault on the deceased and setting on fire of the houses of Dharas. We are, therefore, not inclined to reject their evidence on the ground that they are related to the deceased. As already noted, two of the eye-witnesses i.e. PW-12 Jamini and PW-13 Mandakini are injured witnesses, whose presence at the scene of offence cannot be doubted. They completely bear out the prosecution case.

44. It has also been submitted that there is variance, contradiction, embellishment in the evidence of the PWs 1,2 and 4 and on account thereof, their testimonies are fit to be rejected, though in sum and substance it is not to be found at all in their evidence save and except minor variance, which are natural and bound to occur on account of so many factors including lapse of time.

45. In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, presence of minor discrepancy in evidence and proper approach of the Court has been culled out by the Hon‟ble Apex Court and further it has been held that the same cannot be taken into consideration on account of following reasons enumerated under para-25:-

"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person‟s mind, whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people 40 make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-

conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -- Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."

46. In State of U.P. v. Naresh, (2011) 4 SCC 324, the Hon‟ble Apex Court has observed under para-30:-

30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon.

However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."

47. In Leela Ram v. State of Haryana, (1999) 9 SCC 525, the Hon‟ble Apex Court has observed under paras-11 and 12:-

11. The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.

12. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment --

sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same.

48. In the backdrop of aforesaid legal principle, as well as the parameters laid down by the Hon‟ble Apex Court, evidence of PWs- 1,2 and 4 has been minutely observed. So far presence of contradiction is concerned, the same is apparent only in the evidence 42 of PW-4 and that too is minor one. Therefore, presence of such minor contradiction/exaggeration is not going to nip the case of the prosecution.

49. From perusal of the judgment impugned, it is apparent that the learned lower court dealt with the evidence of material witnesses PW-1, PW-2, PW-4 under para 7, 8, 10 respectively of the judgment but had not been able to inflict any sort of aspersion thereupon. The learned lower court further took pain to dissect the prosecution case under para-19 and onward. From para-19, it is evident that learned lower court took those parts whereupon witnesses were not at all cross-examined. With regard to findings of the Court in respect of evidence of the I.O., PW-8 related with the evidence of PWs, it appears that the learned lower court had not gone through the evidence of PW-8 properly.

50. In this regard first of all, evidences of the prosecution witnesses have to be taken into account. They were not at all cross- examined whether blood was coming out from the injury, whether blood had spread over earth, whether it was seized by the police. On the other hand, from para-2 of PW-8, it is evident that bleeding injury was found. Furthermore, from para-24 of the cross-examination, it is itself apparent that the I.O. had mentioned the fact in the case diary regarding seizure of blood stained earth, but had not prepared seizure list, although, in para-22 of the CD, he had already mentioned the fact 43 that no sign of commission of occurrence was traced out from the P.O. However, in para-23 his attention was drawn towards inquest report wherein there happens to be absence of description regarding blood coming out from the wound.

51. With regard to presence of deceased, it is surprising that even without having cross-examined PW-1, PW-2, PW-4 on this score regarding activity of deceased during course of occurrence, the learned lower court took pains to conclude adverse to the prosecution under para-19 regarding deceased.

52. Now coming to the evidence of PW-8, the I.O, less said is the better. From his evidence, it is apparent that he had conducted the investigation in a most perfunctory manner and that is the reason for the defence to get an opportunity to challenge the veracity of the prosecution version inspiring the lower court to disbelieve the prosecution case. Impact of defective investigation happen to be the subject of serious consideration by the Hon‟ble Apex Court in the case of Sunil Kundu v. State of Jharkhand with Hira Lal Yadav v. State of Jharkhan with Nageshwar Prasad Sah v. State of Jharkhand as reported in (2013) 4 SCC 422, and it has been held in para-29:-

29. We began by commenting on the unhappy conduct of the investigating agency. We conclude by reaffirming our view. We are distressed at the way in which the investigation of this case was carried out. It is true that acquitting the accused merely on the ground of lapses or irregularities in the investigation of a case would amount to 44 putting premium on the deprecable conduct of an incompetent investigating agency at the cost of the victims which may lead to encouraging perpetrators of crimes. This Court has laid down that the lapses or irregularities in the investigation could be ignored subject to a rider. They can be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality. If the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored.

53. Supervision of case by higher police officer is not at all perceived under the Criminal Procedure Code nor it has got evidentiary value. Moreover, in Manilal Keshri v. State of Bihar as reported in 2006 (4) PLJR 32 at para-9 it has been held:-

"Supervision note is not included in the police papers as it is not part of investigation. This is the reason that it is not supplied to the accused. Supervision notes are only confidential official documents exchanged among the officials as informations/recommendations. The Apex Court has put strong objection to such cases where reliance is placed on supervision note. In Eastern India Criminal Cases 2005(1) 1 [:2005(3) PLJR 495] (Sukhu Beldar & Ors. vs. The State of Bihar) it has been held that "supervision notes cannot be utilized by the prosecution as piece of material evidence against the accused. At the same time the accused cannot make any reference to them for any purpose. If any reference is made before any Court, the supervision note as has noted above, they are not to be taken note of by the concerned Court." "

54. From para-20 of the impugned judgment, it is apparent that the learned lower court took so many imaginary things to discredit the prosecution case as, even though I.O, PW-8, was never cross-examined whether he had found/not found tree near about P.O., 45 the trial court had mentioned about the same. Furthermore, the learned trial court had taken note of absence of any seizure of wads of cartridges from the P.O, but, from para-2 of PW-8 (I.O.), it is evident that he had not inspected P.O. and its connecting area, and remained confined to the place where dead body was found. From para-22, 23, 29, 34, 35 of PW-8, his conduct adverse to prosecution is found fully exposed. So far para-21of the impugned judgment is concerned, it has got no relevancy at all for the purposes of appreciation of evidence.

55. Para-22 of the impugned judgment is further circumstance suggesting complete ignorance of factual aspect by the trial court. The aforesaid theme is found properly answered from the evidence of PW-1 in para-17 of his cross-examination wherein he had stated that a proceeding between the parties was drawn up in the year 1998. At that very time wheat crop was standing. Police had reported that the land was under possession of Ramayan Pandey. So far finding of the learned Trial Court in para-23 of the impugned judgment is concerned, it is an admitted fact. However, case of false implication in the aforesaid background was to be tested on the touchstone of reliability of evidence of witnesses and not in an imaginative manner.

56. After going through the record, it is apparent that none of the villagers was named in the Fard-e-beyan. PWs-1,2 and 4 failed to disclosed the names of the villagers and whoever had been examined, they all turned hostile disowning their status as witnesses 46 on material points. However, after going through their evidence, it is crystal clear that they had heard sound of firing at the relevant hour and then, rushing to the spot immediately thereafter, they saw deceased lying at the P.O. and on account thereof, they certainly, gave an additional support to the prosecution case. The question of exact timing given by those PWs has seriously been taken into consideration by the learned court below, which he could not, because of the fact that none of the witnesses had disclosed that at that very time they had wrist watch and had seen the exact time. Moreover, the PW-6 had stated in his examination-in-chief with regard to his presence in his field at the time of commission of occurrence. The defence had tried to shift his place during cross-examination. Even the conduct of the witnesses suggests that, though they were possessing helping attitude towards the accused but they were not able to demolish that part.

57. Non disclosure of the names of independent witnesses as well as non examination of independent witnesses is not a material point in case of evidence of interested witnesses are found to be cogent, reliable which has been clearly held by the Hon‟ble Apex Court in the case of Ambika Prasad v. State (Delhi Admn.), reported in (2000) 2 SCC 646 in para 12, which is as follows:-

12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed 47 on the evidence of PW 5 and PW 7. This submission also deserves to be rejected. It is a known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek.

Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State of U.P. v. Anil Singh(AIR 1985 SC 1998) this Court observed:

"In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable."

58. Moreover, the Evidence Act does not identify or bifurcate the status of witnesses, nor requires quantity of the evidence, rather quality of the evidence which could be gathered by having a look to Section 134 of the Evidence Act.

59. Apart from this, after having holistic appraisal of the evidence of prosecution, more particularly, PWs-1, 3 and 4, it is apparent that the defence had not laid base on its case during course of cross-examination. The failure on the part of defence by missing such 48 opportunity has been found to be adverse to the interest of the accused as has been held by the Hon‟ble Apex Court in Sarwan Singh v. State of Punjab, reported in (2003) 1 SCC 240 in paragraph-9 which is as follows:-

9. Incidentally, in the early nineties, terrorist activities were on a peak in the border districts of Punjab and it has practically been an axiomatic truth in the area in question that no one would in fact come out of the residential houses after dusk unless perforced at 3 o‟clock in the morning. There exists no other evidence nor even there being any suggestion of existence of any other factor for such perforced outing at 3 a.m. It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-

examination it must follow that the evidence tendered on that issue ought to be accepted. A decision of the Calcutta High Court lends support to the observation as above. [See in this context A.E.G. Carapiet v. A.Y. Derderian(4 AIR 1961 Cal 359) (opinion of P.B. Mukherjee, J., as he then was).]

60. Now coming to the statement of the accused recorded under Section 313 of the Cr.P.C, it is apparent that there happens to be slackness on the part of the court in getting the proper questionnaire formulated on the basis of the incriminating material so placed during course of trial. However, it suggests that the case of individual accused has been taken into account and the specific allegation, for which they are accounted for, were confronted. Moreover, they have faced trial, heard evidence and on account thereof were well acquainted with the allegation whatever the witnesses had levelled against them in the case of Paramjeet Singh @ 49 Pamma v. State of Uttarakhand, as reported in 2011 Cr.L.J. 663, after taking into account the earlier decisions under paragraphs-23, 24, 25, 26, 27, 28, 29, 30 and 31, it has been held as follows:-

23. An accused can be questioned under Section 313 CrPC only for the purpose of enabling him personally to explain any circumstance appearing in the evidence against him. No matter how weak or scanty the prosecution evidence is in regard to certain incriminating material, it is the duty of the court to examine the accused and seek his explanation on incriminating material which has surfaced against him. Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him.

Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration. (Vide Sharad Birdhichand( AIR 1984 SC 1622) Supra); and State of Maharashtra v. Sukhdev Singh & Anr., ( AIR 1992 SC 2100 ;(1992 AIR SCW 2486)).

24. In S. Harnam Singh v. State (Delhi Admn.) .) AIR 1976 SC 2140 this Court held that non-indication of inculpatory material and its relevant facts by the trial court to the accused adds to the vulnerability of the prosecution case. The recording of the statement of the accused under Section 313 CrPC is not a purposeless exercise.

25. If any appellate court or revisional court comes across the fact that the trial court had not put any question to an accused, even if it is of a vital nature, such an omission alone should not result in the setting aside of the conviction and sentence as an inevitable consequence. An inadequate examination cannot be presumed to have caused prejudice. Every error or omission in compliance with the provisions of Section 313 CrPC, does not necessarily vitiate trial. Such errors fall within the category of curable irregularities and the question as to whether the trial is 50 vitiated, in each case depends upon the degree of error and upon whether prejudice has been or is likely to have been caused to the accused. Efforts should be made to undo or correct the lapse. (Vide Wasim Khan v. State of U.P.AIR 1956 SC 400, Bhoor Singh v. State of Punjab, AIR 1974 SC 1256; Labhchand Dhanpat Singh Jain v. State of Maharashtra AIR 1975 SC 182; State of Punjab v. Naib Din, AIR 2001 SC 3955: (2001 AIR SCW 3928); and Parsuram Pandey v. State of Bihar, (2004) 13 SCC 189:

(AIR 2004 SC 5068: 2004 AIR SCW 5779.))

26. In Asraf Ali v. State of Assam (2008) 16 SCC 328: (AIR 2009 SC (supp) 645: 2008 AIR SCW 5608), this Court observed: (Para 13 of AIR, AIR SCW) Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced."

27. In Shivaji Sahabrao Bobade v. State of Maharashtra, AIR 1973 SC 2622, this Court observed as under (para 16):

It is trite law, nevertheless fundamental, that the prisoner‟s attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not 51 have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for his conviction."

28. In Ganesh Gogoi v. State of Assam(2009) 7 SCC 404: (AIR 2009 SC 2955: 2009 AIR SCW 4720),this Court, relying upon its earlier decision in Basavaraj R. Patil v. State of Karnataka(2008)8 SCC 740: (AIR 2000 SC 3214:

2000 AIR SCW 3692), held that the provisions of Section 313 CrPC are not meant to nail the accused to his disadvantage but are meant for his benefit. The provisions are based on the salutary principles of natural justice and the maxim audi alteram partem has been enshrined in them.

Therefore, an examination under Section 313 CrPC has to be of utmost fairness.

29. In Sk. Maqsood v. State of Maharashtra (2009)6 SCC583: (AIR 2009 SC (Supp)1060: 2009 AIR SCW 4308); and Ranvir Yadav v. State of Bihar (2009)6 SCC 595 : (AIR 2009 SC (supp) 1439: 2009 AIR SCW 3475),, this Court held that it is the duty of the trial court to indicate incriminating material to the accused. Section 313 CrPC is not an empty formality. An improper examination/inadequate questioning under Section 313 CrPC amounts to a serious lapse on the part of the trial court and is a ground for interference with the conviction.

30. In Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420 :1004 AIR SCW 3420) this Court rejected the submission that as no question had been put to the accused on motive, no motive for the commission of the crime could be attributed to the accused, nor the same could be reckoned as circumstance against him observing that it could not be pointed out as to what in fact was the real prejudice caused to the accused by omission to question the accused on the motive for the crime. No material was placed before the Court to show as to what and in what manner the prejudice, if any, was caused to the accused. More so, the appellant- accused was aware of the accusation and charge against him.

31. Thus, it is evident from the above that the provisions of Section 313 CrPC make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead he must show that such non-examination has 52 actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of an inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court.

61. In the circumstances, after having held analytical crystallization of the evidence, I find the judgment of acquittal rendered by the learned trial court as unsustainable in the eye of law and, therefore, the same is set aside.

62. Accordingly, Respondent No.3, Rakesh Kumar Pandey @ Raju Pandey is found guilty for an offence punishable under Sections 302 IPC as well as for offence under Section 27(1) of the Arm‟s Act. For offence under Section 302 IPC, he is convicted and is directed to undergo R.I. for life as well as he is also imposed with a fine of Rs.10,000/-, in default of payment whereof he shall undergo S.I. for three years. However, no separate sentence is inflicted upon him in respect of offence under Section 27(1) of the Arm‟s Act as it will be fruitless effort. Respondents, Ram Pravesh Paswan, Shashi Bhushan Pandey are found and held guilty for an offence punishable under Sections 302/34 of the IPC as well as under Section 27(1) of the Arm‟s Act. Each of them are convicted and directed to undergo R.I. for life as well as imposed with a fine of Rs.10,000/- in default of payment whereof they shall undergo S.I. for three years. They all are also found and held guilty for an offence punishable under Section 53 307/34 IPC. However, no separate sentence is passed under Section 27(1) of the Arm‟s Act as well as under Section 307/34 IPC on account of having already been inflicted sentence for imprisonment for life. They all are directed to surrender before the learned lower court within a month to serve out their sentences failing which the learned lower court shall take appropriate legal steps for their arrest to serve out the sentences.

(Aditya Kumar Trivedi, J) I agree.

                     Jayanandan Singh, J


Patna High Court                                        (Jayanandan Singh, J)
APRIL 22nd 2014
Perwez /Arvind/AFR

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