Patna High Court
State Of Bihar vs Bhagwan Singh & Ors on 4 January, 2018
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava, Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Govt. Appeal (DB) No.45 of 1994
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State of Bihar
.... .... Appellant/s
Versus
1. Bhagwan Singh son of late Dilip Singh
2. Ram Chandra Singh son of Bhagwan Singh
3. Sanjay Singh son of Ram Chandra Singh
4. Vidya Singh son of Bhagwan Singh
5. Ramashis Singh son of Bhagwan Singh
6. Bijay Singh son of Bhagwan Singh
All are resident of village- Dehri, P.S- Chandradeep ( Sikandra)
.... .... Respondent/s
with
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Criminal Revision No. 292 of 1994
Arising Out of PS.Case No. -null Year- null Thana -null District- JAMUI
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Pavitar Singh son of Ram Charitar Singh ( deceased) resident of village - Dehri,
P.S- Chandradeep( Sikandra) Dist- Jamui
.... .... Petitioner/s
Versus
1. Bhagwan Singh son of late Dilip Singh
2. Ram Chandra Singh son of Bhagwan Singh
3. Sanjay Singh son of Ram Chandra Singh
4. Vidya Singh son of Bhagwan Singh
5. Ramashis Singh son of Bhagwan Singh
6. Bijay Singh son of Bhagwan Singh
All are resident of village- Dehri, P.S- Chandradeep ( Sikandra)
.... .... Respondent/s
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Appearance :
(In G. APP. (DB) No.45 of 1994)
For the Appellant/s : Mr. Dilip Kumar Sinha
For the Respondent/s : Mr. Ankit Katriar
(In CR. REV. No.292 of 1994)
For the Petitioner/s : Mr.
For the Respondent/s : Mr. Ankit Katriar
For the State Mr. Dilip Kumar Sinha
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
and
HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA
ORAL JUDGMENT
Patna High Court G. APP. (DB) No.45 of 1994 dt.04-01-2018
2/12
(Per: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA)
Date: 04-01-2018
This Govt. Appeal and the Cr. Revision no.292 of 1994
have been preferred against the judgment dated 09.02.1994 passed by
the 2nd Additional Sessions Judge, Jamui in Sessions trial no. 459 of
1991 arising out of Sikandra P.S.Case No. 69 of 1991 by which and
whereunder he acquitted all the six respondents of the charges framed
against them and, accordingly, the above stated Govt. Appeal (DB)as
well as this Cr. Revision are being disposed of by this common
judgment.
2. We heard Sri Dilip Kumar Sinha, the learned Additional
Public Prosecutor appearing in Govt. Appeal (DB) 45 of 1994 as well
as Sri Ankit Katriar learned amicus curiae appearing for the
respondents. No one appeared in Cr. Revision No. 292 of 1994.
3. The brief fact, which lies to file the above stated Govt.
Appeal (DB) and Cr. Revision is that PW-8 Ram Pabitra Singh gave
his fard beyan to PW-11 A. S.I Tej Narayan Biswas on 26.04.1991 at
4.30 p.m at village- Dehri to the effect that on the same day at about 5
a.m he had gone to his Bathan to give fodder and water to his cattles
and when he reached there, he noticed that Bhagwan Singh along with
his sons and grandsons were sitting at Bathan and seeing him,
Patna High Court G. APP. (DB) No.45 of 1994 dt.04-01-2018
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Bhagwan Singh ordered his sons namely, Ramchandra Singh, Bidya
Singh, Ramashis Singh, Bijoy Singh, as well as his grandson Sanjay
Singh to assault him and, thereafter, all the above stated persons,
having armed with lathi, started raining lathi on him. However, he,
anyhow, escaped and ran towards Bangla of Ramadhin Singh but he
was followed by the aforesaid persons and they also reached there and
they again started assaulting him by means of fists and lathi. In the
meantime, his father Ramcharitar Singh came there and raised alarm
to save him but the aforesaid persons started assaulting his father and
in that course, Ramasish Singh and Ramachandra Singh climbed on
the chest of Ramcharitar Singh and started pushing his chest. Vidya
Singh, Bhagwan Singh, Bijoy Singh, Sanjay Singh assaulted
Ramcharitar Singh by fists and lathi, as a result whereof, Ramcharitar
Singh became unconscious and, thereafter, the aforesaid persons fled
away from there. The aforesaid occurrence was witnessed by Hincha
Devi PW-3, Ramsakhi Devi P.W-6, Anuradha Devi PW-7, Bijoy
Singh P.W- 2, Sukhdeo Singh P.W-4 and Ramvati Singh P.W 5, who
were present near the place of occurrence. After the occurrence, the
informant brought his father Ramcharitar Singh to his home where he
was given home made treatment but condition of his father started
deteriorating and, thereafter, he took his father for treatment but while
Patna High Court G. APP. (DB) No.45 of 1994 dt.04-01-2018
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his father was being taken to Chandradeep for his treatment, he died
on his way. The reason behind the alleged occurrence, as stated by
P.W-8 Ram Pabitra Singh in his fardbeyan is said to be old land
dispute.
4. On the basis of fardbeyan, of P.W-8 Ram Pavitra Singh,
Sikandra P.S.Case No. 69 of 1991 was registered against all the above
stated six respondents for the offences punishable under sections 147,
341, 323, 307 and 302 of the Indian Penal Code. The formal F.I.R was
prepared on 27.04.1991 and the fardbeyan as well as F.I.R were
dispatched to the concerned Magistrate through special messenger on
27.04.1991and the formal F.I.R and Fardbeyan were put up before the concerned Magistrate on 03.05.1991. It is pertinent to note here that earlier the date of receipt of F.I.R was shown on 04.05.1991 but subsequently, having made the cutting, it was shown that the F.I.R was received in court on 3.5.1991. The aforesaid cutting does not bear any initial or signature of officer. However, PW-11 himself took charge of investigation. He sent the dead body of the deceased for post mortem examination, recorded the statements of witnesses, visited the place of occurrence and having completed the investigation submitted charge sheet for the offences punishable under section 302 and other minor sections of the Indian Penal Code. The cognizance Patna High Court G. APP. (DB) No.45 of 1994 dt.04-01-2018 5/12 was taken and commitment was made in usual course and, accordingly, all the six respondents were put on trial before the court below.
5. All the above stated six respondents were charged for the offences punishable under sections 147 & 302 of the Indian Penal Code but they denied the charge and claimed to be tried.
6. To substantiate the charge, prosecution got examined altogether 11 prosecution witnesses and also got exhibited documentary evidence such as formal F.I.R and Post mortem report etc. The statements of respondents were recorded under section 313 of the Cr. P.C in which they reiterated their innocence and claimed their false implication. The respondents also got examined two defence witnesses and got exhibited certified copies of judgment of case no. 311C of 1977.
7. The learned trial court having heard and analyzed the evidences available on the record passed the impugned judgment of acquittal against which the State has filed Govt. Appeal (DB) whereas informant has filed Criminal Revision.
8. Learned Additional Public Prosecutor appearing for the State assailed the impugned judgment of acquittal arguing that prosecution proved his case beyond all shadow of reasonable doubts Patna High Court G. APP. (DB) No.45 of 1994 dt.04-01-2018 6/12 but learned court below passed the judgment of acquittal taking note of minor contradictions occurred in the depositions of prosecution witnesses. He submitted that the prosecution has not only proved manner of occurrence but also place of occurrence and apart from this, the statement of all the prosecution witnesses in respect of both the above stated points are consistent. He submitted that the fardbeyan of PW-8 was recorded on the alleged date of occurrence and the first information report was prepared on 27.04.1991 and on the same day the fardbeyan and formal F.I.R were sent to the concerned Magistrate though the aforesaid fardbeyan and formal F.I.R were put up before the concerned Magistrate on 03.05.1991. He submitted that the court below doubted the entire prosecution case only on the ground that the F.I.R and fardbeyan were put up before the concerned Magistrate after long delay but failed to take note of this fact that the post mortem on the corpus of the deceased was done on 27.04.1991 which goes to show that prior to conduct of post mortem examination of the corpus of deceased, the first information report had already been lodged. He further submitted that out of 11 prosecution witnesses, almost, all the eye witnesses of the occurrence were examined but the learned court below doubted the testimony of prosecution witnesses only on the ground that the aforesaid prosecution witnesses were either interested Patna High Court G. APP. (DB) No.45 of 1994 dt.04-01-2018 7/12 witnesses or had inimical terms with the respondents. He submitted that the testimony of interested witness cannot be discarded only on the ground of being interested unless the testimony of the witness creates doubt in the mind of the court. He further submitted that the learned court below failed to take note of above stated principle of law and came to wrong conclusion. He further submitted that the post mortem report clearly establishes that the deceased died on 26.04.1991 due to injury caused to him and, therefore, it cannot be said that the prosecution failed to prove his case beyond all shadow of reasonable doubts.
9. On the other hand, learned amicus curiae appearing for the respondents, supported the impugned judgment of acquittal arguing that the learned court below has discussed all the aspects of the case and having marshaled and analyzed the evidences available on the record, passed the impugned judgment. The learned amicus curiae went through the impugned judgment of acquittal and submitted that the learned court below has not only doubted in respect of manner of occurrence but also doubted the place of occurrence as well as time of death of the deceased. He further submitted that the learned court below also found the conduct of family members of deceased as well as prosecution witnesses suspicious. He further Patna High Court G. APP. (DB) No.45 of 1994 dt.04-01-2018 8/12 submitted that, no doubt, the testimony of a witness cannot be rejected only on the ground that the witness is an interested witness and has inimical terms but if the court, taking totality of the prosecution case, doubts the testimony of interested witness as well as inimical witness then it cannot be said that the testimony of that witness, has only been rejected on the ground of being interested witness and inimical witness. He submitted that in the present case, the learned court below doubted the testimony of prosecution witnesses taking the totality of their deposition and, therefore, there is no scope of interfering into the impugned judgment of acquittal.
10. Having heard the contentions of both the parties we went through the record along with lower court record.
11. Admittedly, altogether 11 prosecution witnesses were examined in the present case. Out of them PW-1 is a formal witness, who proved the writing and signature of officer in-charge of Sikandra Police Station on formal F.I.R which has been exhibited as Exhibit-1. PW-2 Bijoy Singh, PW-3 Hincha Devi, PW-4 Sukhdeo Singh,PW-5 Ramti Singh, PW-6 Ramsakhi Devi, PW-7 Anuradha Devi, PW-8 Ram Pavitra Singh, (informant) claimed themselves to be eye witnesses so far as PW-9 Ajay Singh is concerned, he claimed that when he reached on the place of occurrence, he found the deceased Patna High Court G. APP. (DB) No.45 of 1994 dt.04-01-2018 9/12 lying on his Bathan in unconscious state and he also noticed that PW- 8 (informant) was sitting there. He also claimed that he as well as others took Ramcharitar Singh to his home. Admittedly, PW-9 was not witness of the occurrence.
12. PW-10 is Dr. Thakur Om Prakash, who conducted the post mortem examination on the corpus of the deceased on 27.04.1991 and he found three injuries on the person of the deceased which are as follows:-
1. Abrasion on left check near left eye in an area of ½"x ¼.''
2. Abrasion on left check near angle mandable in an area of ¼"x ¼.
3. Bruise on front and lateral side of on lower part of left side of chest at about 4'' below left nipple measuring 2''x 1 ½''.
4. Post mortem- lividity was present on back of trunk except near shoulder blades and buttocks. On its dissection, there was no blood in subcutaneous tissues which was pale. On dissection of abdomen, about 2 liters of blood was present is abdominal cavity. There was lacerated would in an area of 1 ½''x 1''x ¾'' on Patna High Court G. APP. (DB) No.45 of 1994 dt.04-01-2018 10/ 12 concave surface of spleen. The size of spleen was 5 ½''x 3x2 ½.'' PW-10 opined that all the injuries except injury no. 4 were ante-mortem in nature and caused by hard and blunt substance.
13. PW-11 is I.O, who stated that he recorded the fardbeyan, took the charge of investigation, visited the place of occurrence and recorded the statements of witness.
14. The learned court below discussed all the evidences available on the record at great length. The learned court below at Para-10 of the impugned judgment discussed the conduct of family members of deceased and held that the conduct of family members of the deceased was not up to the mark. Taking note of this fact that when the deceased was seriously injured as to what was the reason, the deceased was taken to his home and home made treatment was given to him and no effort was taken to him to take hospital and also not to inform the police regarding the alleged occurrence. In subsequent paragraphs, the learned court below dealt with the issue of delay in lodging the First Information Report and doubted the genuineness of the prosecution case on the ground that the first information report and fardbeyan reached to the concerned court after seven days of the alleged occurrence. If both the above stated issues Patna High Court G. APP. (DB) No.45 of 1994 dt.04-01-2018 11/ 12 are taken together, in our view, the learned court below rightly doubted, the genuineness of the prosecution case because between the above stated period of one week, there was ample opportunity to the prosecution to improve its case and prepared a fresh fardbeyan.
15. The learned court below also highlighted the contradictory statements of prosecution witnesses in respect of place of occurrence as well as manner of occurrence and we are of the view that there is nothing before this Court to take a different view. It is settled principle of law that if two views are possible on the basis of same set of evidence, the view, which is in favour of the accused, shall be taken into consideration. Therefore, in the aforesaid circumstances, we do not find any ground to disturb the findings of the learned court below and, accordingly, we are of the opinion that the learned trial court has rightly passed the impugned judgment of acquittal.
16. On the basis of aforesaid discussions, Govt Appeal (DB) 45 of 1994 as well as Cr. Revision 292 of 1994 stand dismissed and impugned judgment of acquittal is, hereby, confined.
(Hemant Kumar Srivastava, J) (Rajendra Kumar Mishra, J) N.K/-
AFR/NAFR NAFR Patna High Court G. APP. (DB) No.45 of 1994 dt.04-01-2018 12/ 12 CAV DATE Uploading Date 25.01.2018 Transmission Date