Patna High Court
State Of Bihar vs Murari Prasad And Ors on 1 October, 2020
Equivalent citations: AIRONLINE 2020 PAT 552
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh, Prabhat Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
GOVT. APPEAL (DB) No.28 of 1996
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State of Bihar
... ... Appellant/s
Versus
1. Murari Prasad S/o Late Bhagirath Mahto
2. Anil Mahto S/o Gopal Mahto
Both of Village - Gotiya, P.S. Asthawan, District - Nalanda.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Abhimanyu Sharma, APP
For the Respondent/s : Mr.Anjani Kumar, Senior Advocate
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CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
and
HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH)
Date : 01-10-2020
Heard Mr. Abhimanyu Sharma, learned APP
appearing for the appellant and Mr. Anjani Kumar, learned
Senior counsel appearing for the respondents.
The present appeal has been preferred by the State of
Bihar against the judgment dated 27.03.1996 passed in Sessions
Trial No. 474 of 1994 by the learned 5 th Additional Sessions
Judge, Nalanda at Biharsharif, whereby the respondent nos. 1
Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020
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and 2 have been acquitted of the charge under Sections 302/34
of the IPC and Section 27 of the Arms Act.
Mr. Ashwini Kumar Sinha, learned APP has appeared
on behalf of the appellant, however, Mr. Anjani Kumar, learned
Senior counsel, who is now Additional Advocate General has
assisted this Court on behalf of the respondents with due
permission of this Court, since the appeal was filed in the year
1996, when he was not the Additional Advocate General and he
had accepted the brief before his stuit as the Additional
Advocate General.
The prosecution case as per the fardbeyan of
Ramashraya Prasad recorded on 03.05.1994 at 5.00 P.M. by
Sub-Inspector of Police, Ram Sakal Paswan, Asthawan Police
Station at Referal Hospital, Asthawan, is to the effect that at
about 2.45 P.M. when the informant Ramashraya Prasad was in
his house, respondent no. 1 Murari Prasad came and asked the
informant to accompany to his Dalan. The informant along with
Murari Prasad went to his Dalan where Anil Mahto, respondent
no. 2 was sitting from before. The informant demanded
Rs.2,000/- from Anil which was taken by him as a loan.
Accused Anil declined the claim of the informant by saying that
he has never taken any loan which culminated into some scuffle
Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020
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when respondent no. 1, Murari Prasad carrying country made
pistol in his hand, fired at the informant causing injury on the
right side of the chest of the informant due to which bleeding
started. Accused Anil was also carrying pistol in his hand, he too
started indiscriminate firing and upon hearing the sound of
firing, several villagers came then the accused persons fled
away while resorting to firing in the air. The occurrence was
witnessed by Bengali Mahto (P.W.6), the father of the informant
and several other villagers. Thereafter, the informant was
brought to Asthawan Referal Hospital on cot for treatment
where the fardbeyan of the informant was recorded, his right
thumb impression was taken on the fardbeyan (Ext.5). On the
same day, at 6.00 P.M., the attending officer of the Asthawan
Referal Hospital referred the informant to Sadar Hospital,
Biharsharif or to PMCH for further treatment. While the
informant was being taken to Sadar Hospital, Biharsharif, he
died on the way. Thereupon, the Officer-in-Charge, Ashok
Kumar Mishra, Asthawan Police Station recorded another
fardbeyan of Bengali Mahto, the father of the informant on
04.05.1994at 9.30 A.M. at Sadar Hospital, Biharsharif. Though the inquest report was prepared by Officer-in-Charge of Asthawan Police Station.
Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020 4/17 On conclusion of investigation, charge sheet was submitted and thereafter, on cognizance being taken, the case was committed to the Court of Sessions. Consequently, the charges were famed.
The prosecution, in order to prove the charges, examined altogether 10 witnesses. The defence did not examine any witness. The prosecution pleaded for treating the fardbeyan of Ramashraya Prasad as dying declaration.
The learned trial Court after meticulously examined the evidence on record came to a conclusive finding that as per the FIR the only witness to the occurrence is P.W. 6, the father of the deceased-informant. Though P.W. 4, Sumitra Devi, the mother of the deceased-informant also claimed to have reached the spot immediately after the firing, whereas P.W. 5 Anandi Prasad, the brother of the deceased-informant claims himself to be an eye witness to the occurrence but considering the inconsistency inter se and the evidence of P.Ws. 4, 5 and 6, the medical opinion completely negating the charge, the place of occurrence being not proved, no blood stain being found at the place of occurrence, the learned trial Court disbelieved the evidence of eye witnesses and recorded the judgment of acquittal which is under challenge in the present appeal. Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020 5/17 Learned counsel for the appellant submits that the fardbeyan of the victim, Ramashraya Prasad is a dying declaration, since after getting his fardbeyan recorded, the injured died. P.Ws. 5 and 6, the brother and father of the victim are the eye witnesses to the occurrence. Hence, the judgment of acquittal is against the weight of evidence.
Learned Senior counsel appearing for the respondents, however, submits that the fardbeyan only suggests the presence of P.W. 6 at the place of occurrence, whose evidence is so inconsistent, that it clears doubt about evidence of so called eye witnesses. The postmortem report and the evidence of the doctor completely negates the ocular evidence and in such circumstance, the evidence has become a direct evidence. In the present case, the prosecution has failed to prove the case beyond shadow of reasonable doubt.
From careful perusal of the materials on record, it appears that the prosecution has examined altogether 10 witnesses. Out of which, P.W. 2 Umesh Kumar Pandit, P.W. 3 Krishnadeo Prasad and P.W. 7 Brajnandan Prasad are formal witnesses, who have proved the FIR (Ext. 1), endorsement over the fardbeyan (Ext.2) and inquest report (Ext. 3), respectively. P.W. 1 Mahesh Prasad is only an independent witness, who has Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020 6/17 not supported the prosecution case and hence, he has been declared hostile. P.W. 4 Sumitra Devi, the mother of the deceased-informant, P.W. 5 Anandi Prasad, the brother of the deceased-informant and P.W. 6 Bengali Mahto, the father of the deceased-informant have come forward to support the prosecution case. P.W. 8 Dr. M.M. Rahman, conducted autopsy on the dead body of the deceased, P.W. 9 Ram Sakal Paswan is the I.O. and P.W. 10 Dr. Captain Umesh Chandra Roy is the Medical Officer.
No doubt that the fardbeyan of Ramashraya Prasad, the informant is the only statement before his death, but the learned trial Court has doubted Ext.5, in the circumstance that the informant was a literate person but his right thumb impression was taken on the account that he was put on saline through left hand. The fardbeyan was recorded on 03.05.1994 at 5.00 P.M. by S.I., Ram Sakal Paswan, P.W. 9, whereas, P.W. 10 Dr. Captain Umesh Chandra Roy examined the informant on 03.05.1994 at 4.05 P.M. at Referal Hospital, Asthawan and after providing emergency aid referred the injured to Sadar Hospital, Biharsharif or P.M.C.H., Patna. The consistent evidence of P.Ws., like, P.W. 4, in para 10 of her evidence she has stated that fardbeyan of Ramashraya was recorded in between 3.00 to 3.30 Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020 7/17 P.M. P.W. 5 in para 30 has stated that in another 15 minutes they reached from place of occurrence to Asthawan hospital while in paragraphs 31 and 33 of his evidence he has stated that he was present in Asthawan hospital for half an hour when the fardbeyan was recorded. Similar is the evidence of P.W. 6, who is only witness to the fardbeyan and has given his L.T.I. on the same though he was a literate person. This suggests the defence version that fardbeyan of P.W. 6 was recorded at Sadar Hospital, Biharsharif by Ashok Kumar Mishra, Officer-in-Charge of Asthawan Police Station but the said second fardbeyan has been withheld by the prosecution and Ashok Kumar Mishra has also not been examined. The second fardbeyan is not on record.
So far treating the Ext. 5, the fardbeyan of Ramashraya Prasad as dying declaration is concerned, from bare perusal of the postmortem report it appears that the injury appears to be as such that the informant was not in a position to speak. The doctor has not opined as such. It is settled principle that no one at the point of death is presumed to lie. The principle on which the dying declaration is admitted in evidence is based on the legal maxim nemo moriturus praesumitur mentiri it means that a man will not meet his Maker with a lie in his mouth. Though the dying declaration carries weight, but it has to be considered Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020 8/17 while convicting an accused with great caution and unless it is corroborated by the independent witnesses. Supreme Court in the case of Smt. Paniben Vs. State of Gujarat reported in (1992) 2 SCC 474 laid down certain parameters while excepting or not excepting the dying declaration as a vital evidence in criminal proceeding. The relevant paragraph of the judgment reads as follows:-
"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to the occurrence, Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020 9/17 it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted."
Clause vi of the aforesaid parameters suggests that dying declaration if suffers from infirmity cannot form the basis of conviction. It is true that if the dying declaration has been recorded without certificate of doctor and on that ground it cannot be rejected. In the present case, it is admitted case that the dying declaration was recorded at Asthawan Referal Hospital where the informant was examined by P.W. 10 Dr. Captain Umesh Chandra Roy, who examined the victim, Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020 10/17 provided emergency medical aid and referred him to Sadar Hospital, Biharsharif or P.M.C.H., Patna then there was no question of not obtaining the certificate of the doctor and in such a circumstance, dying declaration must have been recorded after examination by the doctor but the medical report of P.W. 10 has not been brought on record to suggest whether the informant was conscious or not, or after receiving such injury he was able to speak and get recorded such long fardbeyan, Ext. 5.
The fardbeyan, Ext. 5, of Ramashraya Prasad, which the prosecution has sought to be treated as dying declaration further gets clouded by the fact that the fardbeyan of P.W. 6, the father of the informant, was recorded by Ashok Kumar Mishra, Officer-in-Charge, Asthawan Police Station at Sadar Hospital, Biharsharif but the same has not been brought on record nor Ashok Kumar Mishra has been examined. The fardbeyan, Ext. 5 as per evidence of P.Ws. 4, 5 and 6 was recorded on 03.05.1994 in between 3.00 to 3.30 P.M. but fardbeyan, Ext. 5 reflects that it was recorded at 5.00 P.M. on 03.05.1994, when as per the evidence of witnesses the fardbeyan was recorded within half an hour after reaching at Asthawan Referal Hospital. The fardbeyan, Ext. 5 of the informant suggests that he claimed that only his father was present at the place of occurrence when P.W. Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020 11/17 9, the I.O. in paragraph 11 has admitted that P.Ws. 4 and 5 never stated in their statement recorded under Section 161 Cr.P.C., that they were present at the place of occurrence. In such a situation, when the prosecution tries to prove its case only on the basis of evidence of interested witnesses, as P.W. 5 is brother of the deceased-informant and P.Ws. 4 and 6 are parents of deceased, then their evidence has to be scrutinized with great care and caution.
The specific case of P.W. 6 is that the cot on which the victim was taken to hospital was brought by P.W. 5, when P.W. 5 in paragraph 28 of his evidence has stated that he did not being the cot. However, P.W. 5 has admitted in his evidence that Ram Dayal, Bisundeo and Bijay carried the victim to hospital on cot but all three have not been examined.
Admittedly, the occurrence took place in the residential area, a midst several houses, but independent witnesses have not been examined. The specific case of P.Ws. 4, 5 and 6 is that the blood was oozing out from all over the victim after receiving injury at the Dalan of respondent no. 1 and thereafter, the victim ran towards right, where he fell down, but at none of the places the I.O. has found any blood stain nor the blood stained earth was seized nor the blood stained clothes were seized. From Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020 12/17 perusal of the materials on record, it appears that the learned trial Court has rightly come to a finding that the place of occurrence has not been proved. P.Ws. 4, 5 and 6 have given inconsistent evidence which is not only inconsistent inter se, but is also inconsistent with the evidence of the I.O. P.W. 9. The I.O. in paragraph 6 of the evidence has stated that he did not remember, who was person, who had shown him the place of occurrence.
From the evidence of the doctor, P.W. 10, it appears that victim died in between 5.00 to 6.00 P.M. on 03.05.1994, while the postmortem examination was conducted at 2.15 P.M. on 04.05.1994, i.e., after about 20 hours of the death but the doctor has not found any rigor mortis, the presence of swelling in the dead body, bleb formation and peeling of the skin and decomposition changes notices by the doctor suggest that the doctor has not given correct medical opinion or the death has occurred prior to time mentioned in the postmortem report. But in absence of any medical report by Asthawan Referal Hospital, the learned trial Court has been unable to determine the exact time of the occurrence.
It is true that the medical evidence cannot override the ocular evidence unless it completely negates the ocular evidence Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020 13/17 as has been held in the case of Ram Narain Singh Vs. State of Punjab reported in (1975) 4 SCC 497. The Supreme Court held that where the evidence of witnesses of prosecution is totally inconsistent with the medical opinion, it amounts to fundamental defect in the prosecution case, and unless reasonably explained, it is sufficient to discredit the entire case. It has also been held by Supreme Court in the case of Abdul Sayeed Vs. State of M.P. reported in (2010) 10 SCC 259 that in case where the medical evidence makes the ocular testimony improbable then it becomes relevant factor in the process of evaluating the evidence. Paragraph 39 of the judgment reads as follows:-
"Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."
In the present case, the doctor's evidence definitely creates serious doubt about the credibility of the ocular Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020 14/17 evidence.
The cardinal principle of criminal jurisprudence pertaining to burden of proof is that the same is on the prosecution. The guilt of accused must be proved beyond reasonable doubt. However, the burden on the prosecution is only to establish his case beyond reasonable doubt and not all doubts. The reasonable doubt has been defined by the Hon'ble Supreme Court in the case of State of U.P. Vs. Krishna Gopal and Anr., reported in (1988) 4 SCC 302. Paragraph 25 of the judgment reads as follows:
"25. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another a learned Author says [ See: "The Mathematics of Proof-II" : Glanville Williams: Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342)] :
"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020 15/17 criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."
Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
26. The concepts of probability, and the degrees of it, cannot obviously be expressed in Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020 16/17 terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice."
It is well settled that the presumption of innocence of the accused is further re-enforced with the judgement of acquittal being recorded by the learned trial Court.
It is also well settled law that unless the compelling reasons are there, the Appellate Court should not interfere with the judgement of acquittal since it is the learned trial Court which has occasion to appreciate the examination of the witnesses.
In view of the discussions made above, we do not find any infirmity in the judgment impugned.
Patna High Court G. APP. (DB) No.28 of 1996 dt.01-10-2020 17/17 Accordingly, this appeal is dismissed.
(Dinesh Kumar Singh, J) ( Prabhat Kumar Singh, J) DKS/-
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