Patna High Court
Sanjay Jaiswal @ Sanjay Kumar Jaiswal vs The State Of Bihar on 9 April, 2014
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.730 of 2011
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Arvind Kumar Akela @ Arvind Akela @ Arbind Kumar Akela, son of Sunder
Prasad Mandal, resident of village-Maheshpur, P.S. Sanholla, Distt. Bhagalpur.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
with
Criminal Appeal (SJ) No. 1118 of 2011
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Sanjay Jaiswal @ Sanjay Kumar Jaiswal, son of Late Yogendra Prasad Bhagat,
resident of Tapua, P.S.-Ekchari, District-Bhagalpur.
.... .... Appellant/s
Versus
1. The State Of Bihar
.... .... Respondent/s
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Appearance :
(In CR. APP (SJ) No. 730 of 2011)
For the Appellant/s : Mr. Yogesh Chandra Verma- Sr. Advocate &
Mr. Pramod Kuma Singh- Advocate
For the Respondent/s : Mr. S. N. Prasad- A.P.P.
(In CR. APP (SJ) No. 1118 of 2011)
For the Appellant/s : Mr. Krishna Mohan- Advocate &
Mr. Praveen Kumar- Advocate
For the Respondent/s : Mr. S. N. Prasad- A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 09-04-2014 In Criminal Appeal no.730 of 2011 Arvind Kumar Akela @ Arvind Akela @ Arbind Kumar Akela happens to be the appellant while in Criminal Appeal no.1118 of 2011 Sanjay Jaiswal @ Sanjay Kumar Jaiswal happens to be the appellant. Both the appeals spring out from common judgment and on account thereof, there have been a conjoint hearing and are being disposed of by a common judgment. 2
2. Appellant Arvind Kumar Akela has been found guilty for an offence punishable under Section 307/34 of the I.P.C. and sentenced to undergo rigorous imprisonment for three years as well as also fined Rs. One thousand in default thereof, to undergo simple imprisonment for six months while the appellant Sanjay Jaiswal has been found guilty for an offence punishable under Section 307 of the I.P.C. and under Section 27 of the Arms Act and directed to undergo rigorous imprisonment for seven years as well as also fine Rs. Five thousand in default thereof, to undergo simple imprisonment for one year additionally under Section 307 of the I.P.C., to undergo rigorous imprisonment for three years as well as also fined Rs. One thousand in default thereof, to undergo simple imprisonment for six months additionally under Section 27 of the Arms Act with a further direction to run the sentences concurrently vide judgment of conviction dated 27.05.2011 and order of sentence dated 10.06.2011 rendered by the 2nd Additional Sessions Judge, Bhagalpur in Sessions Trial No.71 of 2010.
3. Brajesh Maharaj (PW-4) had given his fard-beyan (exhibit-2) on 24.07.2009 at about 10.45 a.m. at Zero Mile Chowk, Bhagalpur before Officer-in-Charge Sabour P.S. disclosing therein that he happens to be an advocate practicing at Civil Court, Bhagalpur. Today (on 24.07.2009) at about 9.30 a.m., he proceeded 3 from his house to Bhagalpur on his motorcycle bearing registration no.BR-10F-0658. When he reached near English More on N.H. 80, he found his motorcycle being followed. One motorcycle was being driven by Arvind Kumar Akela, his co-villager, whereupon, Sanjay Jaiswal, who was a Teacher at Middle School at Maheshpur, was a pillion rider. Sanjay Jaiswal shot at with an intention to kill. He sustained injury over his back. Sanjay tried to repeat the firing, but the fire missed. Another motorcycle was also there boarded by Vikas Mandal, Ranjan Kumar, who were instrumental in getting shot fired at him. He, after sustaining injury fell down. Motorcycle was lying at the P.O. He was carried by the passengers boarded on tempo and took him to Zero Mile where police has come got his fardbeyan recorded.
4. The motive for occurrence has been shown as Vikas Mandal happens to be an influential person. Arvind Kumar Akela, Sanjay Jaiswal, Ranjan Kumar happen to be his muscle men. Because of the fact that he is doing necessary pairvi in case instituted against Vikas Mandal for which they were regularly threatening as he did not oblige them, therefore, they got this occurrence committed.
5. On the basis of the aforesaid fard-beyan Sabour P.S. Case no.207 of 2009 was registered under Section 324, 307, 34 of the I.P.C. and Section 27 of the Arms Act whereupon, investigation commenced and concluded by way of submission of charge sheet 4 leading to trial, meeting with ultimate result, the subject matter of instant appeal.
6. The defence case as is evident from mode of cross- examination as well as from the statement recorded under Section 313 of the Cr.P.C. is of complete denial of occurrence. They have also pleaded that the injured might have sustained injury at the hands of others on account of chequered history and as he was actively involved in village politics, on account thereof, got the appellants including others (since acquitted) implicated in this case. To support the same, one DW has also been examined.
7. Numerous points have been raised on behalf of appellants while assailing the judgment of conviction and sentence rendered by learned trial court. It has been submitted that appellants have nothing to say with regard to injuries having been sustained by PW-4, the informant, but involvement of appellants being an assailant or sharing common intention is a matter of concern that has to be looked into from the evidence whatever been adduced on behalf of the prosecution. To support the same, it has been submitted that there was no possibility for the informant to identify his assailant at English Mod situated on National Highway-80, the busiest road, because of the fact that any lapses during course of driving of vehicle would fall unfortunate incidence of accident. That happens to be reason behind 5 that seeing the crucial part lacking in the fard-beyan which could have demolished the identification of appellants, PW-4 had introduced purposely a theory that he had seen the appellants in back mirror during course of trial. The aforesaid theme, apart from exaggeration is not at all found corroborated with objective finding of the I.O., because of the fact that neither he found blood at the place of occurrence nor the mirror having affixed along with motorcycle, which was lying there or the broken mirror scattered around the motorcycle.
8. It has further been submitted that when PW-4, a lawyer, found his uncorroborated testimony on the point of identification untrustworthy whereupon, he introduced presence of his own man Naresh Rai, who has been examined as PW-5, who was neither named in the First Information Report, nor was examined during course of investigation. He was not examined as C.S. witness. Therefore, evidence of PW-5 happens to be for the first time before the learned trial Court and on account thereof, his evidence became worthless in the background of principle so laid down reported in 1992 CRI. L. J. 942 (Brij Nandan Rai and others, Appellants v. State of Bihar, Respondent):-
[Para-13. It has been held in the decision in the Case of Ramlakhan v. State of 6 U.P. as reported in AIR 1977 SC 1936: (1977 Cri LJ 1566) that in a grave charge like dacoity with murder it will not be proper to place reliance on a witness who never appeared during the investigation and was not named in the chargesheet. The accused who are entitled to know his earlier conversation to the police are naturally deprived of an opportunity of effective cross examination and it will be difficult to give any credence to a statement which was given for the first time in court after about a year of the occurrence.]
9. It has further been submitted that incredibility of the evidence of PW-4 is itself evident from the fact that during his examination-in-chief, he had stated that on account of having saline injected through his right hand, he was unable to sign as a result of which he had put his L.T.I. over the fard-beyan. However, the fardbeyan does not contain the same apart from evidence of PW-7, the I.O. However, if the evidence of PW-4 is accepted on this score, it is now conclusively proved that PW-4 was already under treatment since before. When the aforesaid evidence is taken together with the evidence of PW-7, I.O. over objective finding over P.O., showing 7 absence of blood, empty cartridge at the P.O. is indicative of the fact that alleged P.O. has purposely been introduced otherwise, the informant might have sustained injury in different manner at different place and then taking the PW-4 under his influence, got this case filed.
10. At the other hand, the learned Additional Public Prosecutor while supporting the finding recorded by the learned trial court has submitted that minor discrepancy whatsoever may be, if not going to adversely affect upon the prosecution case in its totality, same could not be a ground to discard the evidence of PWs. It has also been submitted that F.I.R. is not expected to be encyclopedia. It has further been submitted that at the time of recording of F.I.R., the informant was under pain and suffering on account of injury sustained by him at the hands of appellants, who shot at, therefore, minute detail of each and every event during course of occurrence was not possible and consequent thereupon, whatever evidence he had deposed before the Court should not be considered as development whereupon his evidence should be discarded. In likewise manner, it has also been submitted that from the evidence of Doctor (PW-6), it is apparent that informant PW-4 had sustained injury on account of single shot and presence of charring wound is indicative of the fact that he was shot at from close range and being so, would have facilitated the informant to 8 see his assailants. Hence, identification of appellants could not be doubted. Furthermore, PWs-1, 2 and 3 have corroborated the evidence of PW-4. With regard to PW-5, it has fairly been submitted that he was not at all examined by the police during course of investigation in terms of Section 161 of the Cr. P. C. and on account thereof, the weightage of evidence of PW-5 slightly happens to be inferior, however, is found supported by other PWs and on account thereof, could also be taken into consideration.
11. Prosecution, in order to prove its case, had examined altogether seven PWs. Out of whom, PW-1 is Ajay Kumar Mandal, PW-2 is Prem Kumar Singh, PW-3 is Arun Kumar Singh, PW-4 is Brajesh Maharaj, the informant, PW-5 is Naresh Rai, PW-6 is Dr. Ashok Rai and PW-7 is Kameshwar Prasad Singh, the I.O. of the case. Side by side had also exhibited the documents as exhibit-1 injury report, exhibit-2 fard-beyan and exhibit-3 signature of O/c over formal F.I.R. Defence had also examined one DW Kumari Meera Sinha, however, did not adduce any sort of documentary evidence.
12. PW-6 had examined PW-4 on 24.07.2009 at 11.05 a.m. and found following injuries:-
(i) ½" diameter circular lacerated wound over the right side of abdomen with charred margin and bleeding.9
(ii) One lacerated wound 1/2 c.m. x 1/2 c.m. over the left side of the abdomen red in colour bleeding below the umblicus
(iii) One linear longitudinally lacerated wound with charge margin red in colour 6" x 1/2" x 1/2" over the left thigh.
According to opinion of the doctor, the injury was caused by firearm, within six hours and was grievous in nature.
(i) From para-13 of his cross-examination, it is evident that doctor had clearly opined that the aforesaid injuries were caused by single shot and further, the assailant had fired from a distance of 5 to 11 feet.
13. So, from the evidence of PW-6, it is uncontroverted with regard to presence of single gun shot injury, which was inflicted from a distance of 5 to 11 feet over the person of informant, PW-4.
14. Now, coming to the ocular evidence, it is evident that PW-1, PW-2, PW-3 are not an eye witness to the occurrence. They have come across the news through mobile phone and then arrived at Bhagalpur Medical College where they have seen the injured, who had disclosed the appellants along with others (since acquitted) to be responsible for causing the injury. 10
15. Now, coming to the evidence of PW-5, another eye witness. It is apparent from the evidence of PW-7 para-18 that he had not recorded statement of Naresh Rai during course of investigation and on account thereof, his presence before the Court for the first time is to be seen with some doubt and on account thereof, his evidence became fallacious. Because of the fact that by his presence for the first time in Court without having his statement in terms of Section 161 of the Cr.P.C. as well as having his statement not furnished upon the appellants during course of furnishing of police papers was a major lacuna persisting over admission of his testimony. This witness was summoned vide order dated 29.12.2010 and during course thereof, no such precaution was taken up by the learned trial court. Therefore, having his evidence suffering from deficiency on that very score has certainly put an interrogation mark over its admissibility.
16. Now, coming to the evidence of PW-4, who remained as a sole witness. Being an injured his evidence got priority. Moreover, in terms of Section 134 of the Evidence Act, it is the quality not the quantity which matters. Therefore, evidence of single witness, if inspires confidence, is sufficient to maintain the conviction and sentence.
17. The Hon'ble Apex Court by consistent pronouncement has identified three categories of witness. Wholly 11 reliable, wholly unreliable, partly reliable and partly unreliable. Where the evidence of witness fell under first two categories, there happens to be no difficulty before the court in accepting or rejecting the evidence in toto. It is the third category which put extra burden upon the court to search out truth from falsehood.
18. It has also been perceived that in criminal trial while the witnesses are being examined, they on their own add some sort of embellishment deviating from the main stream and being so, again the duty of the court happens to be by way of pruning the unwarranted evidence while appreciating the evidence of particular witness. It is also to be seen that pruning of embellishment where the witness happens to be rustic simpleton coming from lower strata of the society is found permissible to such extent than that of prudent literate witness. So far status of PW-4 is concerned, it is admitted that he happens to be a lawyer and on account thereof, the development in his evidence has to be viewed in its totality.
19. He had narrated the incidence in same way whatever been stated under FIR exhibit-2. However, he has introduced the story that the accused-appellants in a way to stop his motorcycle have tried to overtake him which he had seen in his back mirror. The aforesaid piece of evidence happens to be development over which his attention was drawn up and is found corroborated. PW-7, para-19 (doubling 12 numbered). Introduction of this part will have two bearing. The first one that the accused persons were adamant to stop his vehicle and for that purpose, they tried to overtake him and then in that event their presence should have been paralleled to the informant and in the aforesaid background, there was no question for utilization of mirror. The second circumstance happens to be that there was mirror, had he seen the accused-appellants from mirror then in that circumstance, there was no question of having presence of accused paralleled to him. Certainly in that background, the injuries which he sustained should have from back side and not on abdomen. Unfortunately, neither the prosecution nor the defence had examined and cross-examined PW-6 on that very score.
20. Furthermore, during course of evidence, PW-4 had himself deposed that as saline was injected at his right hand, therefore, he had put his L.T.I. From his evidence, it is apparent that just after sustaining firearm injury, he fell down and no sooner than was lifted by the passengers passing nor, who brought him to Zero mile, then how and in what manner and where informant got treatment. So, this part of evidence is found totally adverse to the prosecution version which is going to sway the prosecution case from its not.
21. Apart from this, it is evident from paragraph-8 of his cross-examination that informant had himself disclosed that at the 13 time of recording of fard-beyan, he was not fully conscious rather he was semi-conscious. From paragraph-21 of his cross-examination, it is evident that he reiterated aforesaid event. In the background of aforesaid discloser, it is evident that the fardbeyan was recorded by the informant while he was not at all conscious. Therefore, reliability of assertion made under fardbeyan has also become an issue. Then in that event, the development so visualizing from the evidence of PW-4 certainly will play an important role and will play adverse to the prosecution case.
22. In paragraph-28 of PW-4, it is evident that 4-5 passengers were shown to be inside the tempo, but none was named by him and in likewise manner, PW-7 under paragraph-15 has admitted that neither he examined any of the passengers occupying the tempo nor he had mentioned the registration number of tempo. He even not enquired about the driver of said tempo. The relevancy of aforesaid theme could be seen in consonance with the objective finding of I.O. as is evident from paragraph-8 of his examination-in- chief where he had found motorcycle bearing registration no.BR-10F- 0658 lying towards South to English village on NH-80 as well as from paragraph-10 that he had not seized the motorcycle. From paragraph- 11, it is evident that he had not found blood at the place of occurrence. He had not found empty cartridge at the P.O. He had not found any 14 residential house near the P.O. rather it was one and half kilometers away. But from the evidence of PW-4 paragraph-33, he had stated that motorcycle was seized by the police and seizure list was prepared. Such inconsistent version is indicative of the fact that prosecution has tried his best to fix the place of occurrence as fixed in the fardbeyan, however could not succeed. As a result of which it could safely be inferred that prosecution has not been able to substantiate the place of occurrence.
23. Thus, having analytical study of the evidence adduced on behalf of prosecution, it is crystal clear that though PW-4 had sustained the gun shot injury but he could not be able to substantiate the manner as well as the place of occurrence including the manner of identification of appellants as an assailant. Thus, the judgment of conviction and sentence recorded by the learned trial Court is set aside. Appeal is allowed. Both the appellants are on bail. Hence, they are discharged from its liabilities.
(Aditya Kumar Trivedi, J) Patna High Court, Dated-09.04.2014 Vikash/-
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