Patna High Court
Shivji Sah vs State Of Bihar on 25 April, 2014
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) NO.734 OF 2009
Against the judgment of conviction, dated 29th July, 2009, and the
order of sentence, dated 03rd August, 2009, passed by Shri Arun
Kumar Sharma, Additional Sessions Judge V, Rohtas at Sasaram,
in Sessions Trial No. 261 of 2003/Trial No. 3 of 2009, arising out
of Natwar Police Station Case No. 42 of 2000
SHIVJI SAH, SON OF VISHWANATH SAH, RESIDENT OF VILLAGE-
DHANGAI, POLICE STATION BIKRAMGANJ, DISTRICT ROHTAS,
PRESENTLY RESIDING AT VILLAGE NATWAR, POLICE STATION
NATWAR, DISTRICT ROHTAS
.... .... APPELLANT
VERSUS
THE STATE OF BIHAR
.... .... RESPONDENT
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Appearance :
For the Appellant : Mr. Bhavesh Kumar, Advocate
Mr. Sheikh Arkan Ahmad, Advocate
For the Respondent : Mr. Ashwini Kumar Sinha, A.P.P.
===========================================================
CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
AND
HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
Date: 25-04-2014
I. A. Ansari, J.By the judgment, dated 29.07.2009, passed, in Sessions Trial No. 261 of 2003, by learned Additional Sessions Judge V, Rohtas at Sasaram, the appellant, Shivji Sah, stands convicted under Section 302 of the Indian Penal Code and also under Section 27 of the Arms Act, 1959. Following his conviction under Section 302 of the Indian Penal Code, the accused-appellant, Shivji Sah, has been sentenced to undergo Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 2 imprisonment for life and pay fine of Rs. 5,000/- and, in default of payment of fine, suffer simple imprisonment for six months. Consequent upon his conviction under Section 27 of the Arms Act, 1959, the accused-appellant, Shivji Sah, has been sentenced to undergo rigorous imprisonment for three years and pay fine of Rs. 1,000/- and, in default of payment of fine, suffer simple imprisonment for one month. The sentences have been directed to run concurrently.
2. The case of the prosecution may, in brief, be described thus:
(i) Bharat Sah (since deceased) was brother of Baijnath Sah (PW 6). On 05.06.2000, at about 09:15 PM, when Bharat Sah, followed by his brother, Baijnath Sah (PW
6), was passing through road in front of one Chhatu Singh's house, which is at a distance of 10 yards from road, accused Shivji Sah and accused Vishwanath Sah, along with two other unknown persons, started firing at Bharat Sah. When the firing so took place, Baijnath Sah was at a distance of about 5 steps behind his brother, Bharat Sah. As Bharat Sah fell down on being shot as mentioned hereinbefore, Baijnath Sah went running towards his brother, Bharat Sah; but the assailants, namely, accused Shivji Sah and accused Vishwanath Sah, along with others, fled away. As Baijnath Sah raised hulla (alarm), many of his co-villagers and relatives gathered, at the Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 3 place of occurrence, including Laxman Sao (PW 2) and Ramakant Sah (PW 3).
(ii) On being informed about the occurrence, Sub-
Inspector of Police, A. K. Singh of Natwar Police Station, came rushing to the place of occurrence, where, on a query made, Baijnath Sah (PW 6) gave a statement, which was recorded by the said police officer, wherein Baijnath Sah (PW 6) described the occurrence as indicated above.
(iii) Treating the said statement as fardbayan, Natwar Police Station Case No. 42 of 2000 was registered, under Section 302/34 of the Indian Penal Code read with Section 27 of the Arms Act, 1959, against accused Shivji Sah, accused Vishwanath Sah and two unknown persons.
(iv) During investigation, police held inquest over Bharat Sah's dead body, which was also subjected to post mortem examination, and, on completion of investigation, a charge sheet was laid, under Sections 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, against the two accused named in the First Information Report, namely, Shivji Sah and Vishwanath Sah.
3. At the trial, when a charge, under Section 302 read with Section 34 of the Indian Penal Code, was framed against the two accused, both the accused pleaded not guilty thereto. At the trial, a charge was also framed, under Section 27 of the Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 4 Arms Act, against both the accused. To the charge so framed also, both the accused aforementioned pleaded not guilty.
4. In support of their case, prosecution examined as many as 10 witnesses. Accused was, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure and, in their examinations aforementioned, both the accused denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial and of the two accused aforementioned having been implicated falsely, in the case, due to previous enmity, though Bharat Sah was killed by unknown robbers, while he was returning to his house after closing his shop at Natwar Bazar. The defence, too, adduced evidence by examining two witnesses.
5. The learned trial Court, having reached the conclusion that the case, as against accused Vishwanath Sah, had not been proved beyond reasonable doubt, acquitted him under benefit of doubt. Having, however, concluded that the case, as against the present appellant, namely, Shivji Sah, stood proved beyond reasonable doubt, learned trial Court convicted him accordingly. Following his conviction, under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, 1959, learned trial Court passed sentences against him as have been mentioned above. Aggrieved by his Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 5 conviction and the sentences, which have been passed against him, the accused, as a convicted person, has preferred this appeal.
6. We have heard Mr. Bhavesh Kumar, learned Counsel, for the appellant, and Mr. Ashwini Kumar Singh, learned Additional Public Prosecution, for the State.
7. Out of the 10 witnesses, who have been examined by the prosecution, PW 1 (Upendra Sah) and PW 6 (Baijnath Sah) have claimed themselves to be eye-witnesses to the occurrence. As far as PW 2 (Laxman Sah), PW 3 (Ramakant Sah), PW 4 (Kulwant Kumar), PW 4 (Chhatu Singh) and PW 9 (Bijay Sah) are concerned, they, too, are material witnesses inasmuch as they, according to the prosecution, had reached the place of occurrence immediately following the occurrence and found Bharat Sah lying dead at the place of occurrence with fire-arm injury.
8. Let us, first, deal with the evidence of PW 6, Baijnath Sah. According to the evidence of this witness (PW
6), on the day of the occurrence, i.e. on 05.06.2000, after having closed his shop at about 5 O'clock in the evening, when he was sitting at the tea-stall of Mahadeo Sah, at about 09:15 PM, Bharat Sah, having closed his shop, came and he (PW 6) started following his brother, Bharat Sah. When they reached, local school road and were turning to their right, he (PW 6) Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 6 saw accused Shivji Sah, Vishwanath Sah (since acquitted) and two others standing in front of the house of Chhatu Singh (PW
5), which is at a distance of 10 steps from the said turning, and, on his way to the house, when Bharat Sah reached near Vishwanath Sah, he (PW 6) noticed that Shivji Sah, on being exhorted by Vishwanath Sah, opened fire from a country- made pistol, which he was holding in his hand.
9. It is in the evidence of PW 6 that the bullet hit left side of the chest of Bharat Sah, Bharat Sah fell down on his stomach and started screaming in pain. It is also in the evidence of PW 6 that a number of their co-villagers arrived and amongst them were present Ramakant Sah (Pw 3), Laxman Sao (PW 2), Kulwant Kumar (PW 4) and some others. PW 6 has deposed that Bharat Sah's wife and son also arrived there, but the accused fled away and, thereafter, police arrived and took down his statement in the form of fardbayan. PW 6 has also deposed that the S.H.O. inspected the dead body, prepared report (i.e. inquest report) and also seized the blood-stained soil.
10. What is important to note, while considering the evidence of PW 6 (Baijnath Sah), is that according to him, Mahadeo Sah was present in his tea-stall, when PW 6 had been waiting at the said tea-stall, for his brother, Bharat Sah, to arrive and at that time, other customers were also present Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 7 there and that amongst those customers, Chandra Singh and Sukhram Singh were present. Neither Mahadeo Sah, owner of the tea-stall, nor the customers, namely, Chandra Singh and Sukhram Singh, who were claimed by PW 6 to have been present, at the said tea-stall, at the time of alleged occurrence, has been examined.
11. Be that as it may, PW 6 has deposed, in his cross-examination, that on seeing Shivji Sah and Vishwanath Sah, he developed a sense of fear and concern, because he had noticed Katta (country-made pistol) in their hands and that it was accused Shivji Sah, who had fired on the chest of his brother.
12. It is also in the evidence of PW 6 that 15-20 persons chased the miscreants to a distance of about half-a- kilometer and, amongst those, who had so chased the miscreants, Sugriv Sah and Shiv Bachan Sharma were present. None of these persons have, however, been examined, though it is in the evidence of PW 6 that he had talked to Sugriv Singh, Kulwant Singh, Ramakant Sah and Laxman Sah about the culprits.
13. Coming to the evidence of PW 1 (Upendra Sah), we notice that according to PW 1, on 05.06.2000, at 09:15 PM, when he was waiting for the arrival of his father, Bharat Sah (i.e. the deceased), and was lighting the torch over and Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 8 over again to see his father, he noticed his father, Bharat Sah, coming and Shivji Sah, Vishwanath Sah and two others present on the road. While Shivji Sah had a Katta (country- made pistol), Vishwanath Sah had nothing in his hand and when Vishwanath Sah exhorted Shivji Sah to kill Bharat Sah, Shivji Sah opened fire and the bullet hit the chest of Bharat Sah, Bharat Sah fell down and those two persons, who were with accused Shivji Sah and Vishwanath Sah, took to their heels.
14. A combined reading of the evidence of PW 1 and PW 6 shows that neither PW 6 speaks of the presence of PW 1 at or near the place of occurrence nor PW 1 has deposed that PW 6 was also present at or near the place of occurrence or was following Bharat Sah, while Bharat Sah was proceeding towards his house. This apart, while PW 6 claims that both, Shivji Sah and Vishwanath Sah were armed with katta (country-made pistol), PW 1 is very categorical, in his evidence, that only Shivji Sah was holding a katta (country- made pistol) in his hand.
15. Curiously enough, PW 1 has deposed that when he reached the place, where his father was lying, his mother followed him and, thereafter, his three sisters arrived there and though he saw Laxman Sah, Ramakant Sah, Bhagwan Sah there, he did not see Baban Sharma, Dasrath Prasad and Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 9 Suresh Prasad. There is nothing in the evidence of PW 1 to show that anyone had chased the assailants; whereas PW 6 asserts that Sugriv Sah and Shiv Bachan Sharma, along with 15-20 persons, had chased the assailants to a distance of about half-a-kilometer. In fact, PW 1 denies that anyone had chased the culprits.
16. It is in the evidence of PW 1 that he was waiting for his father, standing at the gate of his house, and as soon as his father fell down on being hit by a bullet, he rushed to the place of occurrence and, among the persons, who came to the place of occurrence, Ramdayal Choudhary, Kulwant Singh, Kamta Sah and Ram Bachan Choudhary, were present. Nowhere in his evidence, as already indicated above, PW 1 named his uncle, Baijnath Singh (PW 6), as one of the persons who was either following his father, Bharat Sah, or had come to the place of occurrence or was present at or near the place of occurrence.
17. Thus, on every aspect of their evidence, PW 1 and PW 6 have contradicted each other.
18. In his cross-examination, PW 1 has admitted that he had stated before the police that he had, first, heard the bullet being fired and, then, noticed Shivji Sah having shot Bharat Sah from a katta (country-made pistol) in his hand.
19. Bearing in mind, the ocular evidence on record, Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 10 which we have discussed above, when we come to the evidence of the doctor (PW 7), who had conducted post mortem examination on the dead body of Bharat Sah, we notice that the doctor (PW 7) found as follows:
"On external examination :
I. Lacerated wound 1½" x 1" x cavity deep over left edge of chest margin of the wound is everted in nature. 1½" below and medial to left nipple.
II. Lacerated wound ½" x ½" x cavity deep margin of the wound inverted in nature surrounding by averted callar below at middle to lower angle of right scapula. Over posterior aspect of right side of chest.
III. Abrassion 1" x 1¼" x over forehead On dissection :
I. Brain and menninges were pale in appearance. Thoracic cavity contains blood. Fracture of 9th rib over right side posteriorly and 6th and 7th ribs of left side anteriorly. Right lung was ruptured. Heart ruptured and empty. Stomach empty. Bladder contained about 100 ml. of urine."
20. In the opinion of the doctor (PW 7), the death was caused due to shock and hemorrhage, which resulted from the fire-arm injury sustained by the said deceased on his chest. In his cross-examination, the doctor has clarified that there was one injury on the chest and one on the back. The injury no. 1 was the wound of exit; whereas injury no. 2 was the wound of Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 11 entry meaning thereby that Bharat Sah had been shot at his back and not on his chest, contrary to what PW 1 and PW 6 have deposed inasmuch as both these witnesses claimed that Bharat Sah was shot, first, on his chest and, then, he was hit by a bullet on his back.
21. Thus, when ocular evidence given by PW 1 and PW 6, is considered vis-à-vis the medical evidence on record, it becomes transparent that the medical evidence on record contradicts and belies the evidence of PW 1 and PW 6 that Bharat Sah had been shot on his chest from the front.
22. When there is conflict between medical evidence on record, on the one hand, and an eye-witness's account of the occurrence, on the other, the conflict between the two has to be resolved in favour of the defence inasmuch as the Court, in such a situation, would not be able to hold, boldly and confidently, as to whether the description of the occurrence given by the eye-witness is true or it is the medical evidence, which is true.
23. No doubt, medical evidence cannot always be treated as touch-stone for testing the veracity of ocular evidence. Consequently, if the Court believes that an eye- witness is telling the truth, there is no impediment in founding conviction of the accused on the eye-witness's account of the occurrence even if the medical evidence points to the contrary. Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 12
24. In the case at hand, however, the evidence of PW 1 and PW 6, both of whom have claimed to be eye-witnesses to the occurrence, mutually contradict each other and thereby destroy the credibility of each others' evidence.
25. In the face of the contradictions with which stand woven the evidence of PW 1 and PW 6, evidence of none of these two witnesses can be safely relied upon. Resultantly, therefore, the evidence of PW 1 and PW 6 cannot be accepted as true by ignoring the medical evidence on record, which effectively belies the evidence of both these witnesses, namely, PW 1 and PW 6, who have projected themselves as eye-witnesses.
26. In the backdrop of the above discussion of the evidence on record, let us, now, proceed further and take into consideration the evidence of those witnesses, who had arrived after Bharat Sah had already been shot. In this regard, the evidence of PW 2 (Laxman Sao), PW 3 (Ramakant Sah), PW 5 (Chhatu Singh) and PW 9 (Bijay Sah) is of great significance. According to the evidence of these witnesses, on hearing about the firing, when they came to the place of occurrence, they saw Bharat Sah lying dead close to the house of PW 5 (Chhatu Singh).
27. Pausing here for a moment, it may be pointed out that none of the witnesses, who so arrived at the place of Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 13 occurrence, mentioned the name of PW 6 or, for that matter, the name of PW 1, as persons, who were present at or near the place of occurrence nor do PW 2, PW 3, PW 5 and PW 9 claim that PW 1 and/or PW 6 disclosed to them the names of the assailants. It is pertinent to note in this regard that the evidence of PW 2, PW 3, PW 5 and PW 9 clearly demonstrates that at the place of occurrence, no one disclosed as to who the assailants were. In fact, it is in the evidence of these witnesses that PW 6 came from his village, Khaira Bhudar, but he, too, did not disclose the names of any culprits.
28. Speaking more specifically, PW 5 (Chhatu Singh) has deposed that the murder had taken place continuous to his house and, upon hearing the sound of firing, when he came out of his house, he found Bharat Sah dead near his house, but nobody told him how Bharat Sah had been killed.
29. Turning to the evidence of PW 9, we notice that he has also deposed that he had come to the place of occurrence on hearing the sound of firing and saw 3-4 persons running away and 10-15 minutes thereafter, Upendra (PW 1) arrived there meaning thereby that Upendra (PW 1) could not have seen the occurrence. More importantly, PW 9 has clearly deposed that he did not hear, at the place of occurrence, as to who the culprit was. In fact, PW 9 has deposed that in his presence, the dead body of Bharat Sah was taken to the Police Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 14 Station and so long as he remained at the place of occurrence, Baijnath Sah (PW 6) had not come there and so long as he remained there, nobody disclosed the name of any assailant.
30. To the same effect is the evidence of PW 3 (Ramakant Sah), a nephew of Bharat Sah, inasmuch as this witness has deposed that on hearing about the firing, when he came to the place of occurrence, nobody told him who had shot Bharat Sah, though he remained at the place of occurrence for about half-an-hour.
31. PW 2 (Laxman Sao) is the cousin of the said deceased inasmuch as his father and the father of the said deceased were brothers. The evidence of PW 2 is that on the night of the occurrence, at about 09:30 PM, when he was returning from Natwar Bazaar, he heard hulla that firing had taken place and when he rushed to the High School, he found Bharat Sah lying there and no one told him as to who had shot Bharat Sah. Though PW 2 has been declared hostile and cross- examined by the prosecution, the fact remains that except offering suggestions to him, nothing could be elicited from his cross-examination to show that what he had deposed was untrue or false. The suggestions, thus, offered to PW 2 by the prosecution remained as mere suggestions and have not been probablized by the evidence on record.
32. What follows from the above discussion is that Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 15 apart from the fact that PW 1 and PW 6 have contradicted each other on material aspects of their evidence and that their descriptions of the occurrence stand belied by the medical evidence on record, even those, who had arrived at the place of occurrence immediately after the occurrence had taken place, had not seen PW 1 and PW 6 at or near the place of occurrence; rather, PW 1 arrived at the place of occurrence 10-15 minutes after the arrival of witnesses, such as, PW 5. As far as PW 6 is concerned, he (PW 6) came there much later. Had PW 1 and PW 6 been eye-witnesses to the occurrence, there was no reason for all those witnesses, who had arrived at the place of occurrence, to have been ignorant about the identity of the assailants. This shows, as rightly contended by the defence, that PW 1 and PW 6 cannot be safely relied upon.
33. When we turn to the evidence of DW 1 and DW 2 , we may point that both these witnesses were named in the charge sheet; but without assigning any reason, they were not examined by the prosecution. These two witnesses were, however, examined by the defence and their evidence more than abundantly clarify that at the place of occurrence, the names of the assailants were not mentioned nor was any claim made by PW 1 and PW 6 that anyone between them had witnessed the occurrence. In fact, the evidence of DW 1 and DW 2 shows that when they arrived at the place of occurrence, Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 16 neither PW 1 nor PW 6 was present there.
34. Though the prosecution cross-examined DW 1 and DW 2, nothing could be elicited from their cross-examinations to show that what they had deposed was false.
35. It is also interesting to note that according to the evidence of PW 6, he had seen the accused persons standing at some distance at the place, which he (PW 6) and his brother, Bharat Sah, were required to pass through, and he (PW 6) had also noticed the assailants equipped with fire-arms and had, therefore, become suspicious and was apprehensive and frightened; yet, unbelievably, neither Bharat Sah nor PW 6 stopped; rather, they kept proceeding until the time accused Shivji Sah shot at Bharat Sah's chest from close range. Though PW 6 claims that he saw Bharat Sah being shot by accused Shivji Sah from a distance of about two paces and PW 1 claims that his father was shot by almost touching his body by the fire-arm, no sign of blackening, charring or burning was found on Bharat Sah's dead body at the time of post mortem examination conducted on the said dead body.
36. Situated thus, it becomes clear that the mere closely one examines the evidence of PW 1 and PW 6, the more unreliable and untrustworthy their evidence emerge to be.
37. Coupled with the above, it is also worth pointing Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 17 out that according to the evidence of PW 6, he opens his shop, at 7:00 AM, at Natwar Bazaar and closes his shop, as per Government instructions, at 2:00 PM. This witness (PW 6) has also admitted that he has been living separately from his brother, Bharat Sah, at village Khaira Bhudar Bazaar, for last several years; whereas his brother, Bharat Sah, had constructed a house at Natwar Bazaar, where he had been residing for more than 20 years.
38. It is quite disquieting to note that having closed his shop at 2:00 PM, PW 6 would have been waiting till 9:00 PM at the tea-stall of Mahadeo Sah to accompany his brother, Bharat Sah. In these circumstances, Mahadeo Sah was an important witness to prove, as claimed by PW 6, that he (PW
6) had been waiting, at the tea-stall of Mahadeo Sah, for his brother, Bharat Sah, to arrive. For some unknown reason, prosecution did not examine Mahadeo Sah, at whose tea-stall, PW 6 claims to have been waiting for his brother, Bharat Sah, to arrive.
39. With regard to the above, one can also not ignore the fact that the evidence of PW 6 is that when Bharat Sah reached the tea-stall of Mahadeo Sah, Bharat Sah did not stop, but kept proceeding and without saying a word, PW 6 started following him. It is not the evidence of PW 6 that during the period, when he was walking with his brother, Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 18 Bharat Sah, he had talked to his brother. This conduct of PW 6 is quite unnatural. This witness's conduct becomes more unnatural, when we notice that despite the fact that he had seen the assailants equipped with fire-arms, he was suspicious and frightened; yet neither had he stopped from proceeding ahead nor did he stop his brother, Bharat Sah, from proceeding further, though, normally, in these circumstances, a person would be weary to proceed further. Further-more, the earlier disclosure by PW 6 shows that according to him, all the four accused persons had fired on Bharat Sah. Later on, however, at the trial, PW 6 claims that only accused Shivji Sah had fired at his brother, Bharat Sah.
40. In the circumstances indicated above, there is considerable force in the submission made on behalf of the appellant that having come to know about the fact that the medical evidence had disclosed only one bullet having been fired at Bharat Sah, PW 6 gave a description of the occurrence to bring his evidence in tune with the medical evidence on record. This circumstance is also suggestive of the fact that PW 6 was not present at the place of occurrence, when the occurrence had taken place.
41. We cannot also ignore the fact that neither PW 1 spoke of the presence of PW 6 nor PW 6 spoke about the presence of PW 1 at the place of occurrence. If what PW 6 Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 19 claim were true, then, there was no reason for PW 1 to have not deposed that Bharat Sah was shot, when he was coming home, followed by his uncle (PW 6). This apart, PW 6 claims that Vishwanath Sah was also armed with katta (country- made pistol) measuring one cubit; but belying PW 6, PW 1, as already indicated above, states that accused Vishwanath Sah was holding nothing in his hand. Further-more, if PW 1 was an eye-witness, there is no reason for him not to mention before the police, at the time when statement of PW 6 was recorded, that he (PW 1) was an eye-witness. While PW 6 claims that some persons had chased the assailants, PW 1 clearly says that to his knowledge, nobody had chased the assailants.
42. In the face of the evidence of PW 1 and PW 6 and also in the face of the medical evidence on record, which proved that the said deceased had sustained one bullet injury, on the chest inasmuch as the injury, on the chest, was the entry wound and the injury, at the back, was the exit wound caused by the bullet, fired at, and sustained by, Bharat Sah. There can, therefore, be no escape from the conclusion that the descriptions of the occurrence, given by PW 1 and PW 6, are not safe to place reliance upon inasmuch as the evidence of these two witnesses is nothing but ad-mixture of half-truth and untruth. This apart, the half-truth and untruth are so inextricably mixed with each other that it has become Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 20 impossible to disengage the truth from falsehoold.
43. In the circumstances indicated above, it was not only impossible to place reliance on the evidence of PW 1 and PW 6.
44. In the absence of any other evidence, supporting the description of the occurrence given by the eye-witnesses, one has no option, but to hold, and we do hold, that none of these witnesses, who have claimed themselves to be eye- witnesses, can be treated or held to be wholly reliable. Even if their evidence is not rejected by the Court as wholly unreliable, their evidence would fall, at best, in the category of those witnesses, who are neither wholly reliable nor wholly unreliable.
45. It is trite that the witnesses, ordinarily, fall into three distinct categories, namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If the witness is wholly reliable, his evidence can be implicitly relied upon and such a witness's testimony can be made basis for conviction of an accused. Similarly, when a witness is found to be wholly unreliable, no reliance can at all be placed on his evidence and his evidence has to be rejected outright. When, however, a witness is found to be neither wholly reliable, nor wholly unreliable, his evidence cannot be accepted as true unless his evidence is found to have been Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 21 corroborated by some credible independent evidence, direct or circumstantial.
46. The evidence of the eye-witnesses, which the prosecution has adduced in the present case, cannot be safely relied upon unless the same is found to have been corroborated by some credible independent evidence, direct or circumstantial.
47. It is also an undisputed proposition of law that one infirm witness cannot be treated to have corroborated the evidence of another infirm witness meaning thereby that witnesses of same brand cannot be taken to have corroborated each other. Thus, when a witness is neither wholly reliable nor wholly unreliable, his evidence cannot be taken to have been corroborated by a witness of the same brand, namely, a witness, who is neither wholly reliable nor wholly unreliable, for, evidence is not to be counted, but weighed. It is not the number of the witnesses, which determines the outcome of a trial; rather, it is the inherent falsity or truth of the evidence given by the witness, which decides the outcome of trial. If each one of a large number of witnesses is found to be wholly unreliable, their evidence cannot become acceptable as true merely because a large number of similar brand of witnesses has corroborated each other.
Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 22
48. A reference, with regard to the above position of law, may be made to the case of Muluwa, S/o Binda and others Vs. The State of Madhya Pradesh, [AIR 1976 SC 989], wherein the Supreme Court has observed as follows :
"It is elementary that the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; for, evidence is to be weighed not counted. Since the evidence of P.Ws. 5 and 6 suffered from the same infirmities as that of Smt. Jugatia, it cannot be said that the trial Judge had no basis, whatsoever, for stigmatising it as unreliable."
(Emphasis is added)
49. Situated thus, it is clear that merely because some persons, claiming themselves to be eye-witnesses, have given evidence describing the occurrence, their evidence cannot be made basis for holding them truthful witnesses, when their evidence is belied by the medical evidence on record unless their evidence is found to have been corroborated by credible independent evidence, direct or circumstantial.
Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 23
50. What follows from the above discussion is that the witnesses, whom the prosecution had examined at the trial, did not give consistent and reliable evidence. We, however, notice that the learned trial Court has not made any attempt to determine as to who had been telling the truth; whether it was P.W. 1, who had deposed the truth, or P.W. 6 was the one, who had deposed the truth. Moreover, the learned trial Court has also, as the impugned judgment reflects, not even taken notice of the fact that the ocular description of the occurrence, as given by the witnesses aforementioned, is not supported by the medical evidence on record; rather, the medical evidence on record belied the description of the occurrence, which the witnesses had given claiming themselves to be eye-witnesses.
51. It has also been brought to our notice by the learned Counsel for the appellants that according to the evidence, which has come on record, a large number of people, almost around 15-20, had gathered at the place of occurrence, but most of them have not been examined by the prosecution and the witnesses, who have been examined, have not stated about the presence of either PW 1 or PW 6 at or near the place of occurrence. . In this regard, we need to point out that since these people had gathered, according to the evidence on record, after Bharat Sah had been shot to Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 24 death, they could not have been examined as eye-witnesses to the occurrence. At the same time, however, it was the duty of the prosecution to produce those witnesses, who had come immediately after the occurrence, so that it could have become known to the Court as to what the initial version of the occurrence had been given by those witnesses, who have claimed themselves to be eye-witnesses, to those, who had gathered at the place of occurrence immediately after the occurrence. Non-examination of any of those witnesses, who had gathered at or near the place of occurrence soon after the occurrence, is a serious lapse on the part of the prosecution. Even if we ignore this lapse on the part of the prosecution, the fact remains that in the light of the above discussion of the evidence on record, it cannot be, confidently and boldly, held by this Court that the description of the occurrence given by the eye-witnesses is true.
52. Because of the nature of evidence, which is available on record, the least, which ought to have been done by the learned trial Court, was to accord benefit of reasonable doubt to the accused persons inasmuch as we are clearly of the view that in the light of the evidence on record, which we have discussed above, it was too hazardous to convict the accused-appellant, particularly, when we find that the evidence, which the prosecution has adduced, is an ad- Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 25 mixture of half-truth and untruth and it is not only difficult, but wholly impossible to disengage the truth from the falsehood. The benefit of such a situation ought to have been given to the accused-appellant.
53. In the backdrop of what have been discussed and pointed out above, we are firmly of the view that the prosecution had failed, in the present case, to bring home the charges against the accused-appellant beyond reasonable doubt and that the accused-appellant was entitled to be accorded benefit of doubt.
54. Because of what have been discussed and pointed out, this appeal needs to be allowed.
55. In the result and for the foregoing reasons, we allow this appeal. The impugned conviction of the accused- appellant and the sentences passed against him by the judgment and order, under appeal, are hereby set aside. The accused-appellant is held not guilty of the offences, which he stands convicted of, and he is accordingly acquitted of the same under benefit of doubt.
56. Let the accused-appellant be set at liberty, forthwith, unless he is required to be detained in connection with any other case.
57. The Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Patna High Court CR. APP (DB) No.734 of 2009 dt.25-04-2014 26 Lower Courts Record.
(I. A. Ansari, J.)
S. P. Singh, J.: I agree.
(Samarendra Pratap Singh, J.)
Prabhakar Anand/-
AFR
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