Patna High Court
Mithilesh Yadav vs The State Of Bihar on 16 May, 2019
Equivalent citations: AIRONLINE 2019 PAT 804, 2019 CRI LJ (NOC) 569
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1068 of 2011
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Mithilesh Yadav, S/o- Madan Yadav, R/o- Vill- Idinpur, P.S.- Tikari, District-
Gaya
... ... Appellant
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellant : Mr. Baxi S.R.P. Sinha, Sr. Adv.
Mr. Mrigendra Pratap Singh, Adv.
Mr. Sanjay Kumar, Adv.
For the Respondent : Mr. Ashwani Kumar Sinha, APP
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CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
ORAL JUDGMENT
Date : 16-05-2019
Heard Mr. S.R.P. Sinha, learned Senior Counsel
for the Appellant and Mr.Ashwani Kumar Sinha, learned
counsel for the State.
The present criminal appeal is directed against
the judgment of conviction dated 26.9.2011 and order of
sentence dated 27.9.2011 passed by Sri Sudarshan Kumar Ray,
1st Additional Sessions Judge, Gaya in S.T. No. 10/11/ 395/08
arising out of Tekari P.S. Case No. 110 of 1999, whereby and
whereunder the appellant has been convicted for the charges
under Section 302 of the IPC and Section 27 of the Arms Act
and sentenced to undergo R.I. for life and R.I. for one year,
respectively. However, both the sentences have been directed to
run concurrently.
Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019
2/31
This appeal was heard by a Coram of Mr.
Justice Hemant Gupta and Hon'ble Justice Mrs. Anjana
Prakash, JJ, where the Hon'ble Judges were divided in their
opinion expressed on 12.5.2016.
Justice Hemant Gupta, (as he now elevated to
Supreme Court) upheld the judgment of conviction and order of
sentence passed by the learned Trial Court. The relevant part of
his opinion is as under:-
"12. Though the FIR was not
proved by the informant in his statement appearing
as PW 3, but that would be only an irregularity as
his statement on oath in Court is not contradicting
any part of the statement made to the Police. Still
further, the defence has not contradicted the
witness from any part of his previous statement.
Therefore, even in the absence of formal proof of
the FIR, the prosecution story does not become
doubtful. It may be stated that subsequently the
learned trial court passed an order on 8th June,
2011 to exhibit the FIR on the ground that it is a
public document.
13. Therefore, we do not find any
error in the findings recorded by the learned
Additional Sessions Judge 1st , Gaya in Sessions
Trial No. 10 of 2011/395 of 2008 (S.J.), which
may warrant interference in the present appeal."
Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019
3/31
However, Justice Anjana Prakash, as she then
was, differed with the opinion recorded by Justice Hemant
Gupta. In her opinion, the Appellant deserved acquittal. The
relevant part of her opinion reads as follows :-
"29. Thus to sum up, in my
opinion, in continuation of the above discussion,
when the Prosecution has not brought the earliest
version on record, not proved the cause of death,
nor the place of occurrence, not examined the
Investigating Officer causing prejudice to the
Appellant and the eyewitness accounts being
highly unreliable, in my opinion, the Appellant
deserves to be acquitted."
In view of the difference of opinion, both
Hon'ble Judges, vide order dated 12.05.2016, directed the
appeal to be placed before the then Hon'ble Acting Chief
Justice, which reads as follows:
"In view of the difference of
opinion, let the matter be placed before Hon'ble
the Acting Chief Justice."
Consequently, the matter has been referred to
this Bench under Section 392 of the Code of Criminal
procedure, 1973.
Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019
4/31
In order to appreciate the issues involved, it is
relevant to trace the factual matrix of the case.
The prosecution case got initiated with the
written report dated 2.10.1999 submitted by Nathun Yadav to
the Outpost Incharge, Mau O.P., Tekari, to the effect that on
02.10.1999at 6.00 A.M., he woke up and came to the door of his house, where he saw one Sunaina Devi, W/o Mithilesh Yadav was opening a drain towards his house. His brother opposed it but she refused to stop and began to demolish the 'Naad' (earthen pot in which the cattles are fed fodder). In the meantime, Raja Yadav tried to prevent her from doing so, then she threw a spade upon him and injured his elbow and thereafter she engaged in a quarrel with him.
Until then Nathun Yadav, younger brother of the informant had reached there and in the meanwhile Mithilesh Yadav came out from his house and fired a shot on the informant with his pistol, but the bullet hit Nadlu on his neck. Nadlu fell on the ground. The informant and his elder brother Raja Yadav rushed to hold Nadlu, until then Sukendra Yadav, son of Madan Yadav and Madan Yadav, being armed with Khanti and Lathi had reached there and they began to assault indiscriminately with Khanti and Lathi. He sustained injury on Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 5/31 his head, which resulted in loss of blood. Some persons of Manikpur (a village) were sitting in the house of Mithilesh, whom the informant recognized by their face but did not know their names, started challenging to finish all of them. On arrival of the villagers on the spot the accused persons ran away towards west, while resorting to fire. However, Sonfulwa Devi, (wife of Madan Yadav) and Jitni Devi (wife of Sukendra Yadav), continued abusing the informant. The motive for the occurrence of the offence is 7 decimals land situated in front of the house of Mithilesh Yadav, which the accused persons wanted to capture forcefully.
After receipt of the written report, the Incharge Mau Outpost forwarded the same to the officer Incharge Tekari Police Station, for instituting a case under Sections 323, 324, 341, 307, 447, 504 and 114 read with Section 34 of the Indian Penal Code (for short IPC) and 27 of the Arms Act, whereafter Tekari P.S. Case No. 110 of 1999 dated 02.10.1999 was registered under the aforesaid Sections and the investigation was handed over to a Sub Inspector of Police, namely, Chandrika Ram. Subsequently, in course of investigation Section 302 of IPC was added in the FIR, vide order dated 12.10.1999, passed by learned Chief Judicial Magistrate, Gaya Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 6/31 at the request of the Investigating Officer.
On completion of investigation, chargesheet was submitted under Section 324 (voluntarily causing hurt by dangerous weapon or means), 447 (criminal tresspass), 307 (attempt to murder), 302 (punishment for murder), 504 (intentional insult with intent to provoke breach of peace), read with 34 (acts done by several persons in furtherance of common intention) and Section 27 (using arms etc) of Arms Act, against Mithilesh Yadav (the appellant), Sukendra Yadav, Madan Yadav, Jitni Devi, Sonfulwa Devi and Sunaina Devi.
Upon receiving the police report under Section 173(2) of the Code of Criminal Procedure (for short Cr. P.C.) learned Chief Judicial Magistrate, Gaya took cognizance of the offence in exercise of jurisdiction under Section 190(1)(b) of the Cr.P.C.
Since the case was based on a public report and the offences punishable under Section 307 and 302 of the IPC, were exclusively triable by Court of Sessions, after compliance of the provisions prescribed under Section 207 of Cr.P.C., the case was committed to the Court of Sessions. After commitment of the case to the Court of Sessions, the case of the appellant was split up from others. The other accused Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 7/31 persons, namely, Madan Yadav, Sukendra Yadav, Sunaina Devi, Jitni Devi were sent up together with the appellant and Sonfulwa Devi but were separately tried in Sessions Trial No.133 of 2004 and then all were acquitted. However, the appellant was subsequently put on trial in Sessions Trial No.10/2011/395/2008. The Trial Court framed charges on 19.07.2008 against the appellant under Section 302 and 304/149 of IPC and 27 of the Arms Act. In course of trial the prosecution examined altogether eight witnesses; namely, Ram Pravesh Choudhary (PW-1), Mahendra Yadav (PW-2), Nathun Yadav (PW-3), Shailendra Yadav (PW-4), Kamal Deo Yadav (PW-5), Raja Yadav (PW-6), Kanti Devi (PW-7) and Dr. Arvind Prasad (PW-8). Apart from the oral testimony of the witnesses, the prosecution has adduced post mortem as evidence, as the only documentary evidence which has been marked as Exhibit-
1. The Defence had examined one Mithu Yadav as DW-1. Apart from the oral testimony of Mithu Yadav as DW-1, it has also brought on record, the certified copy of judgment of Sessions Trial No.133 of 2004, which has been marked as Exhibit A and certified copy of deposition of Shailendra Yadav in Sessions Trial No.133 of 2004, which has been marked as Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 8/31 Exhibit B. On completion of trial, the Trial Court concluded that the prosecution has succeeded to bring home the charge under Section 302 of IPC and 27 of Arms Act, beyond all reasonable doubts against the appellant. However, finding no evidence in support of the charge under Section 307 read with Section 149 of the IPC, he has been acquitted of the charge under Section 307 read with Section 149 of the IPC.
Assailing the judgment of the Trial Court, learned counsel for the Appellant submitted that while holding the appellant guilty under Section 302 of the IPC and Section 27 of the Arms Act, the Trial Court has completely failed to appreciate that everyone charged with criminal offence is presumed to be innocent unless proved guilty according to law. He contended that the State has completely failed to prove the guilt of the appellant beyond reasonable doubt. Since there are serious lacunae in the evidences of the prosecution witnesses, the Trial Court ought to have given benefit of doubt to the appellant. He pleaded that the prosecution has not met the burden of proof in the criminal trial before the Trial Court. The Trial Court has also failed to appreciate that a guilt against the appellant should have been determined by a fair and effective Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 9/31 legal process. The witnesses examined on behalf of the prosecution have contradicted each other and in material particulars. The FIR has not been exhibited by the prosecution. The Investigation Officer has not been examined, which has prejudiced the case of the appellant. The post mortem report has been proved by a Doctor, who had no knowledge about the autopsy conducted on the body of the deceased. The independent witnesses present at the place of occurrence were also not examined. There is no reason assigned for non- examination of Investigating Officer, The Doctor and the independent witnesses. In absence of the examination of the Investigating Officer, even the place of occurrence has not been proved. The material exhibits have also not been brought on record. On the basis of aforesaid submissions, learned counsel appearing for the appellant submitted that the judgment of the Trial Court is fit to be set aside.
Per contra, learned counsel for the State submitted that there is no violation of fair trial. In the instant case the eye witnesses account given by the Trial Court is sufficient to prove the guilt of the appellant. The witnesses examined in the course of trial have corroborated the prosecution case as stated in the FIR. Mere non-examination of Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 10/31 Investigating Officer or the Doctor who conducted the post mortem examination on the body of the deceased, would be of no consequence, as the charges have been proved by evidences adduced properly. He has further contended that FIR is only relevant for purpose of setting law into motion. Only because the same has not been proved in course of trial, would be of no consequence.
Having heard learned counsel for the parties, at this stage it would be relevant to briefly take into consideration, the evidences of the witnesses examined in the course of the trial.
PW-1, Ram Prasad Choudhary and PW-2, Mahendra Yadav, were declared hostile by the Court at the request of the prosecution as they stated before the Court that they had no personal knowledge of the occurrence. They have also stated that the police had not taken their statement at any point of time.
PW-3, Nathun Yadav is the informant of the case, he is the brother of the deceased Nadlu Yadav. He has deposed that about nine years ago at 6.00 A.M., he was standing at his door and there was an altercation between him and Sunaina Devi, the wife of the accused, with respect to a Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 11/31 dispute regarding land. Nadlu came there and the accused shot him on the neck with a pistol. He has further deposed that he was also assaulted with spade by Sukendra and Sunaina and he received injuries on his head. Raja also received injury in his arm. Nadlu was taken to Tekari P.H.C. and thereafter to Gaya and thereafter to PMCH, Patna. Nadlu died due to gun shot injury in course of treatment at Patna. He has further stated that the written report submitted to the police was scribed by someone else and he had put his thumb impression on it. In cross examination, he has admitted that it was a free fight between both sides. He himself was assaulted by Sukendra and Madan, as a result of which he has sustained injuries over his head. Mithilesh came and shot Nadlu with a gun. Nadlu was not treated at Tekari. He was sent to Gaya and from Gaya he was taken to Patna, where he was treated in a famous hospital. He denied the defence suggestion that no occurrence as alleged has taken place and Mithilesh was falsely implicated.
PW-4, Shailendra Yadav deposed that he saw the accused with arms at the place of occurrence. He was at his house at the time of occurrence. Upon hearing noise and sound of firing, he came at the spot and saw that Nadlu had received fire arm injury in the left side of his neck and also saw Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 12/31 Mithilesh with pistol in his hand, Sunaina with 'Kudal', Sukendra with 'Lathi', and Madan Yadav with 'Khanti'. Raja Yadav had received injury on his elbow. He saw Sunaina was demolishing 'Naad' of Nathun Yadav. After inflicting violence, the accused persons ran away. Nadlu was taken to Patna, via Gaya for treatment where he died.
In cross-examination, he has stated that his village consists of 100 families. They belong to different castes, like, Yadavs, Choudhary, Paswan etc. Immediately after the occurrence, almost entire village had reached at the place of occurrence. On alarm being raised, he also reached immediately after the occurrence. He admitted that earlier he had deposed once, in the split up trial, in which he had stated that he had no knowledge of the occurrence. He clarified that he deposed as such, since Sukendra did not resort to fire. He stated that large amount of blood had fallen at the place of occurrence. The police arrived at the place of occurrence after an hour. He has stated that his statement was recorded by the police, in which he had stated that he had seen the appellant killing the deceased. He denied the defence suggestion that no occurrence as alleged had ever taken place.
PW-5, Kamal Deo Yadav is a hearsay witness.
Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 13/31 He deposed that he saw the dead body of the deceased in the hospital and Nathun Yadav told him that appellant had shot him with a pistol. Nathun Yadav had also told him that he himself had sustained injury on his head. In his cross-examination, he admitted that this statement was never recorded by the police. He further admitted that at the time of occurrence, he was at Gaya. He also admitted that in the split up trial, he had deposed that he was not present at the place of occurrence.
PW-6, Raja Yadav, brother of informant and deceased, deposed that in the morning of 02.10.1999, Sunaina Devi was digging a drain, which was protested by him, whereupon she assaulted him on his left hand. Nadlu came there at that time and then Mithilesh shot him on his neck with his pistol. The bullet moved out after piercing his neck. When Nadlu opposed him, Sukendra and Madan assaulted him. After that they all ran away. Nadlu was first taken to Mau outpost and from there the police took him to Tekari Government Hospital and from there he was taken to Medical College, Gaya, from where he was taken to P.M.C.H., Patna, where he died.
In cross-examination, he stated that his village population is of 50 to 60 families of different castes, like Yadav, Chaudhary, Paswan etc. At the time of occurrence, he was Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 14/31 present at the place of occurrence. Immediately after the occurrence the villagers had reached the place of occurrence. He admitted that Sukendra Yadav, Parvez Yadav, Jagdeo Yadav etc, had arrived after the occurrence. He also stated that due to fire-arm injury, blood had scattered all around at the place of occurrence. The clothes of the victim was also drenched with blood. According to him, Nadlu died in the course of treatment after five days of occurrence. In the course of treatment he was operated upon, but the bullet could not be extracted from his neck. He could not disclose the name of the Doctor, who had treated him. He stated that he can not say that in his initial statement to the police he had stated that Sunaina had assaulted on his left hand. He has also stated that Nadlu was assaulted by Sukendra and Madan with Khanti and Lathi. He has also stated that his nephew Birendra Yadav was sent to jail for keeping illegal arms. He has also stated that his village was naxal affected and he has denied that his nephew Birendra had any connection with naxalites. He further admitted that there is ongoing land dispute between him and the appellant Mithlesh. He denied the defence suggestion that no occurrence as alleged had ever taken place. He further denied that in order to capture the land of Mithilesh, he has been falsely implicated. He also Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 15/31 denied the defence suggestion that Nadlu was killed by naxalites.
PW-7, Kanti Devi has claimed herself to be an eye-witness. She deposed that on 02.10.1999 at 6.00 A.M., she was in the house of her father and she saw from the door that Sunaina was digging a drain and Raja Yadav stopped her from doing so, but she caused injury on the elbow of Raja by throwing spade. The deceased Nadlu Yadav and Nathun Yadav came to the spot after hearing the scuffle. In the meantime, Mithilesh came out from the house and shot at the neck of Nadlu with his pistol, as a result of which Nadlu fell down. In the meantime, Sukendra and Madan assaulted her father Nathun Yadav. She has stated that Nadlu was first taken at Mau outpost and then to Tekari and from there to Gaya. He was further taken to Patna, where he died in course of treatment. She has admitted that several villagers also came at the place of occurrence. She disclosed that Veera Choudhary, Ram Parvez Yadav, Baleshwar Yadav, Suresh Yadav, etc. came at the place of occurrence. She has stated that there was no free fight and the attack was one sided. She has stated that blood had fallen on the ground at the place of occurrence. The injured persons were taken to hospital and were treated there. She has also Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 16/31 stated that the clothes worn by deceased were also drenched with blood. She admitted that Birendra Yadav is her brother. She denied that he is a member of MCC (an extremist organization) and was sent to prison for possession of illegal arms. She also denied that the deceased died due to the shot fired by Birendra Yadav. She also denied the defence suggestion that the offence as alleged has not taken place.
PW-8, Dr. Arvind Prasad has deposed that the Post mortem Report dated 07.10.1999 of Nadlu Yadav was prepared in the handwriting of Ashok Kumar Yadav, who was posted as Associate Professor, Forensic Science, PMCH at that time. He identified the writing and signature of Dr. Ashok Kumar Yadav. He has proved the Post mortem Report which has been marked as Exhibit-1.
In cross-examination he has stated that the Post mortem Report has not been prepared before him. He further admitted that he does not know about the facts of the case or the Post mortem Report.
After examination of the prosecution, statement of the appellant was recorded under Section 313 of the Cr.P.C. In reply to Court's question, he has denied the allegation against him. He has stated that Birendra Yadav opened fire Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 17/31 upon him, but in order to save himself he ducked down, as a result Nadlu received the shot and died. The appellant pleaded innocence.
As stated above, one Mithu Yadav was examined as DW-1. In his deposition he has stated that, it was Birendra Yadav who opened fire, which hit Nadlu, as a result of which he died. He deposed that the appellant is innocent and has been falsely implicated in this case. He further deposed that Birendra Yadav is an accused in a case registered under the Arms Act and was sent to prison.
In cross-examination, he admitted that he had not received any summon by the Court. He has also stated that his statement was never recorded by the police in course of investigation. However, he denied that he has given a false deposition in the Court, at the instance of the accused persons.
Having gone through the evidence of prosecution and defence witnesses and the finding recorded by the Trial Court, it is to be seen as to whether the guilt of the appellant under Section 302 of the IPC and Section 27 of the Arms Act has been proved beyond the shadow of reasonable doubt.
However before scrutinizing the evidence, it has Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 18/31 to be kept in mind, that one of the cardinal principles of criminal jurisprudence is that, the burden of proof lies on the prosecution, as the basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond shadow of reasonable doubt. In the case of Yogendra Singh Vs. Mahavir Singh & others, since reported in (2006) 10 (JT) 332, the Supreme Court has stated about the said principle in the following words:-
"It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubts and not all doubts."
It is well settled position in law that a reasonable doubt, is not a marginal, trivial or merely a possible doubt, but a fair doubt based upon reason and common sense. The doubt must also arise out of the evidence in the case.
Keeping the aforesaid position in law, in mind, now I shall examine the arguments and materials on record to see as to whether or not, the findings of Trial Court call for interference on the facts and circumstances of the present case. As noted above PWs-1 and 2 turned hostile. Their deposition is Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 19/31 of no help to the prosecution.
Neither the written report of the informant nor the FIR in question has been proved in course of trial. FIR is a public document, prepared under Section 154 of the Cr.P.C. It is a settled position in law that the FIR is not a substantive piece of evidence. It can be used to corroborate the informant under Section 157 or contradict him under Section 145 of the Evidence Act, if the informant is called as witness during trial.
If there is any difference between the FIR and the deposition given in the Court, it would be a matter of grave suspicion. Similarly, if certain facts are not mentioned in the FIR and if they are brought to the Court, subsequently as substantial evidence, the Court would disbelieve that part of evidence. Even though, the FIR is not a substantive piece of evidence. It is a document that has to be proved like any other document and marked as exhibit during trial. Thus, an FIR has great significance in criminal trial.
Though, the informant has been examined in the Court, the FIR has not been tendered by the prosecution in accordance with the Indian Evidence Act. Withholdment of the FIR and the written report on the basis of which the FIR was Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 20/31 drawn would become more significant when the informant, while being examined in the Court changes his version.
In the FIR, it has been alleged that the appellant came out of his house and fired shot on the informant with pistol, but the bullet hit Nadlu on his neck. However, while being examined in the Court as PW-3, he has given a go-bye to the allegation that the appellant fired shot at him which hit Nadlu. He changed his version by saying that when Nadlu came, the appellant shot him on his neck with pistol.
Thus the evidence of informant is not consistent with the written report, on the basis of which the FIR was registered.
Under the circumstances, since there is difference between the FIR and the deposition given in the Court, withholdment of FIR creates suspicion on the veracity of prosecution case.
Even with regard to the weapon used in crime, the informant PW-3 has contradicted himself in the deposition before the Court. In Examination-in-Chief, he has stated that the appellant shot Nadlu with pistol, whereas in cross- examination he has contradicted himself by saying that appellant shot Nadlu with a gun. I further find that the Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 21/31 deposition of PW-3 does not tally with the deposition of other witness, PW-7, Kanti Devi. He deposed that it was a free fight between both sides, but PW-7 has categorically stated in her deposition that the attack was one sided and the accused persons had alone assaulted the members of prosecution side. Even on the point of treatment provided to the deceased, Nadlu Yadav, the witness are not consistent. PW-3 has stated that Nadlu was not treated at Tekari whereas P.W. 6 Raja Yadav and P.W. 7 Kanti Devi have deposed that Nadlu was firstly treated at Tekari Government Hospital.
PW-4 is not a witness to the alleged occurrence. By the time he reached at the place of occurrence, the incident had already taken place. He is a witness only to the extent that he saw appellant at the place of occurrence, holding a gun, which alone could not prove guilt of commission of murder. He has stated that the deceased died three days after the occurrence, which is contrary to the deposition of other witnesses, examined in course of trial, who have stated that deceased died five days after the occurrence. He admitted in cross-examination that he has stated in split up trial of other accused persons, that he did not know anything about the occurrence. He is wholly unreliable witness and his evidence is Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 22/31 of no help to the prosecution case.
P.W. 5, Kamal Deo Yadav, is a hearsay witness, who came to know about the occurrence from the informant, Nathun Yadav. He has clearly stated that his statement was never recorded by the police in course of investigation. He has stated that at the time of occurrence, he was at Gaya. Thus, his evidence is also of no help to the prosecution.
As far as P.W. 6 and P.W. 7 are concerned, they claim to be eye-witnesses. P.W. 6 Raja Yadav has deposed before the Court, that when the appellant shot at Nadlu on his neck with pistol, the bullet moved out after piercing his neck. He has not only contradicted Nathun Yadav, but has also contradicted himself, when he has admitted in cross- examination that the bullet could not be extracted by the Doctor during Post mortem. There is also contradiction between the deposition of P.W. 6 Raja Yadav and P.W.4. PW 6 has stated that Nadlu died five days after the occurrence, whereas P.W. 4 Shailendra Yadav deposed that Nadlu died three days after the occurrence. Thus, I find that the evidence of P.W. 6 cannot be made a basis for holding that the prosecution has been able to prove the case beyond reasonable doubt.
P.W. 7, Kanti Devi is the daughter of the Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 23/31 informant Nathun Yadav. In her deposition, she has stated that at the time of occurrence, she was in the house of her father. She has deposed that when Raja Yadav tried to stop Sunaina from digging a drain, in front of his door, Sunaina Devi caused injury by throwing a spade on him. Her presence is not mentioned in the report filed by P.W. 3. The other witnesses examined in the course of trial have not stated that at the time of occurrence, she was present at the place of occurrence. She has expressed her ignorance that her brother Birendra Yadav had gone to jail for keeping illegal arms, whereas eye-witness Raja Yadav has admitted in cross-examination that Birendra Yadav is his nephew and had been sent to jail for keeping illegal arm. She has deposed that appellant shot Nadlu on his neck, with his pistol. However, her evidence that Nadlu died due to firearm injury has not been corroborated by medical evidence. It is not known as to how Nadlu died. Thus, her evidence can also not be relied upon, for arriving at a finding of guilt against the appellant.
In a criminal trial relating to murder, medical evidence has a very significant role to play. The Doctor who prepared the Post mortem examination report, is a material witness. Apart from being an expert witness, he also gives Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 24/31 opinion on certain aspects of the case.
In Smt. Nagindra Bala Mitranand Vs. Sunil Chandra Rai and Ors, since reported in 1960 SCR (3) Page 1, it has been held as under:
"The value of medical witness is not only a check upon the testimony of eye witness; it is also a testimony, because it may establish certain facts, quite apart from the other oral evidence. If a person is shot, at close range, the marks of tattooing is found by the medical witness would show that the range was small, quite apart from any other opinion of his. Similarly, fractures of bone, depth and size of the wound, would show nature of weapon. It is wrong to say that it is only opinion evidence; it is often direct evidence of facts found upon the victims person."
As seen above, though the Post mortem report has been brought on record and marked as Exhibit - 1, the Doctor who proved it has simply stated that it was prepared in the handwriting of one Ashok Kumar Yadav, with whose handwriting, he was familiar. However, P.W. 8, Arvind Prasad has admitted that Post mortem examination report was not prepared before him. He admitted that he does not know about the facts mentioned in the post mortem examination report. Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 25/31 Thus, though the Post mortem report is proved, the contents therein are not proved at all. It is also pertinent to note that no reason has been noted by the trial Court for non-examination of the Doctor who conducted the Post mortem examination.
I am unable to understand, as to why the prosecution did not choose to examine the Doctor. There is no evidence on record on the basis of which it can be said that prosecution could not secure the attendance of the Doctor, who conducted autopsy over the dead body. The Doctor who was examined has claimed, that he knew the signature and the writing of the Doctor, who conducted the autopsy. However, he has not given evidence, as to the nature of the post mortem conducted and the injuries found by the doctor on the dead body. If such evidence would have been brought on record, then the appellant could have had an opportunity to cross- examine the said Doctor to say that the injuries suffered by the deceased was not in the manner alleged. The appellant could have also taken a defence, that the injuries were not sufficient in the ordinary course of nature, to cause the death of the deceased. The prosecution, by not examining the doctor who conducted the autopsy and by not explaining the nature of Post mortem conducted and the injury found by the doctor on the Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 26/31 dead body, denied the opportunity to the appellant, as he was prevented from cross-examining the Doctor. In absence of evidence that Nadlu died in the manner as alleged, the appellant could not be held guilty of murder.
Lastly, I find that the Investigating Officer has not been examined in the case. I am mindful of the fact that mere non-examination of the Investigating Officer would not be fatal to the prosecution case. However, the importance of examination of Investigating Officer in criminal trial cannot be undermined. The examination of Investigating Officer could have revealed true picture of the alleged offence, especially when both sides to the dispute were fighting over the drainage/land for about one hour and there is no independent witness to testify that the appellant killed Nadlu with pistol. The examination of the Investigating Officer was also needed to reveal the site plan of the place of occurrence, further as to what evidence were recovered from the place of occurrence, like, bullet's shell, weapon, blood stain etc. The defence has taken the plea that it was Birendra, Son of Nathun and nephew of deceased, who fired upon the appellant, which eventually hit Nadlu. The defence has also drawn attention of the witnesses towards their previous Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 27/31 statement made before the police. However, relevant contradiction could also not be extracted in absence of the Investigating Officer.
In this factual background, non-examination of the Investigating Officer without assigning any reason, has certainly caused prejudice to the case of the defence. The Investigating Officer is a material witness, because he investigates the case, records the statement of witnesses, goes to the spot for findings, prepares case diary, receives police paper during investigation and after collecting relevant materials in support of the prosecution or against the prosecution, he submits his report, for or against the prosecution. Thus, the role of the Investigating Officer is very important, if there is no material contradiction in testimony of witnesses, non-examination of Investigating Officer would not be fatal to the prosecution. However, non-examination of Investigating Officer affects the credibility of eye witnesses not wholly reliable.
In the background of the evidences, since there are material contradictions in the testimony of the witnesses, non-examination of the Investigating Officer has certainly prejudiced the case of the defence.
Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 28/31 Though the witnesses examined on behalf of the prosecution deposed that the blood had fallen on the ground and clothes of Nadlu Yadav, neither the blood soaked soil nor the blood stained clothes, were seized or presented before the Court as material exhibits.
Most of the witnesses examined during the trial on behalf of the prosecution have deposed that the victim Nadlu Yadav was just taken to Tekari Government Hospital and then to Medical Hospital, Gaya and then to P.M.C.H., Patna, but not a single chit of paper of treatment provided to the deceased at these places have been brought on record. Withholdment of medical reports of the deceased also creates suspicion.
The Doctors, who provided treatment to Nadlu Yadav, at aforesaid hospitals, have also not been examined by the prosecution. There is no explanation by the prosecution as to why they have not been examined during trial. Therefore, the Court would draw an adverse inference under Section 114(g) of the Indian Evidence Act, for withholdment of material witness, as there is no case of prosecution that those witnesses were won over by the accused.
I further find that though witnesses examined on behalf of the prosecution, deposed that P.W. 3 Nathun Yadav Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 29/31 and P.W. 6 Raja Yadav, also sustained injuries and were treated in hospital, but no corroborative medical evidence have been brought on record. Even the Doctor who examined them have not been examined. The infirmities highlighted above, create reasonable suspicion in the mind of the Court about the veracity of prosecution story.
Thus, this Court is of the view, that the present case is one in which I.O. should have been examined and his non-examination creates lacunae in the prosecution case.
Going by the materials on record, disagreeing by the findings of the trial Court, as the witnesses have failed to prove its case beyond reasonable doubt and appreciating the cardinal principle of criminal jurisprudence that the accused must be presumed to be innocent, until he is proved to be guilty, I am of the opinion that there would be a failure of justice if appellant would be held guilty.
In view of the discussions made above, the Judgment of the learned trial Court cannot be sustained. A useful reference may be had to the observation of the Apex Court in the case of Rang Bahadur Singh and Ors. Vs. State of U.P., reported in AIR 2000 SC 1209, relevant portion of which in paragraph no. 22 reads as follows:
Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 30/31 ".....time tested rule that acquittal of a guilty person should be preferred to conviction of a innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt, a conviction cannot be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that appellants were the real culprits......."
In view of the discussions made, I am of the considered view that the conviction recorded by the trial Court needs to be interfered with.
Hence, for the reasons mentioned above, with profound respect to the view expressed by Justice Hemant Gupta, I am unable to agree with the conclusion reached by him in his opinion dated 12.5.2016. At the same time, I agree with the conclusion arrived at by Justice Anjana Prakash, whereby she has allowed the appeal and set aside the impugned judgment of conviction dated 26.9.2011 and order of sentence dated 27.9.2011.
Accordingly, the impugned judgment of conviction dated 26.9.2011 and the order of sentence dated 27.9.2011, passed by Sri Sudarshan Kumar Ray, Ist Additional Patna High Court CR. APP (DB) No.1068 of 2011 dt.16-05-2019 31/31 Sessions Judge, Gaya in Sessions Trial No. 10/2011 / 395/2008 arising out of Tekari P.S. Case No. 110 of 1999 are hereby set aside and the appellant is directed to be released forthwith, if he is not required in any other case.
The appeal stands allowed.
(Dinesh Kumar Singh, J) anil/-
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