RABLE MR. JUSTICE V.N. SINHA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL C. A v. ORDER
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.667 of 2013 the (Against judgment of conviction dated 10.5.2013 and order of sentence dated 14.5.2013 passed by the learned Ad hoc Additional Sessions Judge 1st, Bhojpur, Ara in Sessions Trial No. 167 of 2012 arising out of Azimabad P.S. Case No. 19 of 2011) ====================================================== 1. Girdhari Dom, son of Prem Dom 2. Birendra Dom son of Pyare Dom Both resident of village- Baga, P.S.-Azimabad, District- Bhojpur (Ara). .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s ====================================================== With Criminal Appeal (DB) No.669 of 2013 ====================================================== Bifan Dom, son of Late Moti Dom, resident of village and P.S. Azimabad, District- Bhojpur (Ara) .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s ====================================================== Appearance : (In CR. APP (DB) No.667 of 2013) For the Appellant/s : Mr. Sumeet Kumar Singh, Adv. : Mr. Binod Kumar Singh, Adv. For the Respondent/s : Mr. G. P. Jaiswal, APP (In CR. APP (DB) No.669 of 2013) For the Appellant/s : Mr. Sumeet Kumar Singh, Adv. : Mr. Binod Kumar Singh, Adv. For the Respondent/s : Mr. S. C. Mishra, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE V.N. SINHA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL C. A. V. ORDER (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) DATED- 29-07-2013 Both these appeals have been filed under Sections 374(2) and 389 (1) of the Code of Criminal Procedure against the judgment of conviction dated 10.5.2013 and order of sentence Patna High Court CR. APP (DB) No.667 of 2013 (4) dt.29-07-2013 2/12 dated 14.5.2013 passed by the learned Ad hoc Additional Sessions Judge 1st, Bhojpur, Ara in Sessions Trial No. 167 of 2012 arising out of Azimabad P.S. Case No. 19 of 2011 by which the appellants and co-convict Jugeshwar Dom have been convicted and sentenced to life imprisonment with a fine of Rs.20,000/- each and in default of payment of fine six months simple imprisonment each for committing offence under Section 302/34 IPC. 2. The prosecution case, in brief, is that on 10.9.2011 at 9 p.m. Payarchand Dom, father of the informant Bindhayachal Dom (P.W. 2) was sleeping on a push cart in front of the shop of Shyam Babu Gupta carpenter his tenant. The informant (P.W. 2) was engaged in chit chat with his family members. He heard footsteps of some persons. In torch light informant saw Birendra Dom (appellant), Jugeshwar Dom, Girdhari Dom (appellant), Baleshwar Dom and Bifan Dom (appellant) having kata (a sharp cutting weapon) in their hands, felt suspicious went inside the house to take out his bed and having soon come out of his house saw Birendra Dom, Jugeshwar Dom, Baleshwar Dom and Girdhari Dom holding his father in sleeping position his maternal brother Bifan Dom slitting his throat. No sooner informant (P.W. 2) raised alarm, his brother Tega Dom (P.W. 1), his brother’s wife Permila Devi (P.W. 5) and his wife Usha Devi (P.W. 4) and his mother Muni Devi (P.W. 3) came out of their house and saw the
Legal Reasoning
Patna High Court CR. APP (DB) No.667 of 2013 (4) dt.29-07-2013 3/12 accused persons making good their escape. The miscreants were identified by the informant and his family members in torch light. The accused fled away towards Sone river. The main cause of occurrence was that his father (deceased) settled himself in his in- law’s village which aggrieved his maternal brother who often used to quarrel with deceased, informant and other members of family and as also use to threaten them to kill. There was some dispute prior to this occurrence. The informant, his family members had seen the other accused persons consuming liquor in the house of Bifan Dom. The occurrence has taken place at about 9.45 pm. 3. On the basis of fard beyan of the informant Azimabad P. S. Case No. 19 of 2011 dated 10.9.2011 was registered for the offence punishable under Section 302/34 IPC against the accused. After investigation charge-sheet was submitted. Cognizance was taken. The case was committed to the court of sessions. Accused Baleshwar Dom left his pairvi and as such his trial was separated by the trial court vide its order dated 16.4.2013. The charges were framed against the accused for the offence punishable under Section 302/34 IPC to which they denied and claimed to be tried. After trial, the appellants and co-convict Jugeshwar Dom were convicted and sentenced as aforesaid. 4. The defence of the accused is that they have been falsely implicated in this case. Patna High Court CR. APP (DB) No.667 of 2013 (4) dt.29-07-2013 4/12
Legal Reasoning
5. Learned counsel for the appellants has submitted that none of the prosecution witnesses has supported the prosecution case in their deposition, yet the learned trial court has held appellants guilty and sentenced under Section 302/34 IPC. All the material witnesses are hostile and they have not supported the prosecution case as has been narrated in the fard beyan. All the material witnesses including the informant are close relative of the deceased but none of them has supported the prosecution case. Even then the learned trial court has convicted the accused on the basis of fard beyan and the statements of witnesses before the Investigating Officer under Section 161 Cr.P.C. It has been submitted that since there is no evidence against the appellants, no useful purpose will be served in keeping these appeals pending for
Decision
hearings as such these appeals can be disposed of at the admission stage itself. 6. Learned counsel for the State has fairly submitted that these appeals can be disposed of at the admission stage itself. 7. It appears from the impugned judgment that the prosecution has examined altogether 7 witnesses. They are; P.W. 1 Tega Dom, son of the deceased and brother of the informant, P.W. 2 Bindhayachal Dom, informant and the son of the deceased, P.W. 3 Munni Devi, wife of the deceased, P.W. 4 Usha Devi, wife of the informant, P.W. 5 Pramila Devi, daughter-in-law of the Patna High Court CR. APP (DB) No.667 of 2013 (4) dt.29-07-2013 5/12 deceased, P.W. 6 Dr. Pravin Kumar Sinha who has held the post- mortem examination on the dead body of the deceased, and P.W.7 Md. Sabbir Khan, Officer-in-charge of Azimabad police station who recorded the fardbeyan of the informant on 10.9.2011 and took the investigation of the case himself and after investigation submitted the charge-sheet. 8. Now let us examine the evidence of P.W. 2 Bindhayachal Dom, the informant and son of the deceased. He has stated that on the date of occurrence after taking meal he came out of his house with his bed and found the head of his father slit. He raised alarm and his brother and other members of his family came there and began weeping. Co-villagers also came there. He has stated that he did not see anyone committing the offence nor making good their escape. He has further stated that officer-in- charge of the police station came to the place of occurrence but he did not give any statement to the police, rather he has given his thumb impression being an illiterate person. He has not supported his statement made in the fard beyan. He has been declared hostile at the request of the prosecution. 9. P.W. 1 Tega Dom is the brother of the informant. He has stated that when his younger brother Bindhayachal Dom (P.W. 2) raised alarm, he, his wife and wife of the informant also came out of the house, but they saw none. His younger brother, Patna High Court CR. APP (DB) No.667 of 2013 (4) dt.29-07-2013 6/12 informant also did not disclose the name of any of the miscreants. The police came to the place of occurrence but did not ask anything from him, rather asked the residents of locality. He has also been declared hostile on the request of the prosecution. 10. P.W. 3 Munni Devi is the wife of the deceased Payarchand Dom. She has stated that her husband Payarchand Dom has been killed in the night of the occurrence while she was sleeping in her house. When her son raised alarm, she came out of her house and found her husband dead. She did not see anyone escaping from the place of occurrenc. She has also been declared hostile by the prosecution. 11. P.W. 4 Usha Devi is the wife of the informant. She has stated that Payarchand Dom (deceased) was her father-in-law and he was killed. But she did not know as to who killed him. The police had not taken her statement. She has also been declared hostile. 12. P.W. 5 Permila Devi is the daughter-in-law of the deceased. She has also stated that in the night of occurrence her father-in-law Payarchand Dom was sleeping outside the house and she along with family members were sleeping inside the house. Her younger brother-in-law Bindhyachal Dom (P.W. 2) went outside the house with bed for sleeping and saw the throat of her father-in-law slit. On his raising alarm, she also came out of the Patna High Court CR. APP (DB) No.667 of 2013 (4) dt.29-07-2013 7/12 house and began to weep. She did not see any person making good his escape from the place of occurrence nor the informant disclosed her the name of the assailants. She has also been declared hostile at the request of the prosecution. 13. P.W. 6 has conducted the post-mortem examination on the dead body of the deceased Payarchand Dom aged about 65 years identified by Chaukidar on 11.9.2011 at 11.55 a.m. while posted as medical officer in Sadar Hospital Ara and found the following ante-mortem injuries:- Injury No. 1 was incised wound and slashed wound over interior aspect of neck size 3”x1”x bone deep with separation of trachea and ossophagus through and through. Injury No. 2 was cut laceration on right side of face mandibulor region on right side of neck of size 4”x3”x bone deep and soft tissues deep cogencial cut with contused margin. He had also found cut laceration over occipital region of head and upper part of postero, lateral part of neck of size 4” x 2”x bone deep and soft tissues deep red. In the opinion of the doctor death was caused due to cut throat caused by sharp cutting fairly heavy weapon. Time elapsed since death was within 6 to 36 hours. The post-mortem report has been identified as Ext.1. 14. P.W. 7 is the investigating officer who recorded the Patna High Court CR. APP (DB) No.667 of 2013 (4) dt.29-07-2013 8/12 fardbeyan of the informant on 10.9.2011. He identified his writing and signature on the fardbeyan as Ext. 2. He has further identified formal FIR Ext. 3. He has stated that he took up investigation. During investigation he went to the place of occurrence and as it was night, he got preserved the place of occurrence by the Chaukidar and on 11.9.2011 in the morning at 6 a.m. he prepared the inquest report of the dead body on the place of occurrence. He has identified the photo copy of inquest report as Ext. 4. He recorded the statement of witnesses Parmila Devi (P.W. 5), Usha Devi (P.W. 4), Muni Devi (P.W. 3) and Tega Dom (P.W. 1) and restatement of informant Bindhyachal Dom (P.W. 2). Thereafter he inspected the place of occurrence. He has stated that the place of occurrence is foot-path situated in front of the house at South of Azimabad Bazar and at the west of Sahar road where the dead body of the deceased Payarchand Dom was found. After completion of investigation he filed charge-sheet under Sections 302, 324/34 IPC against the accused persons. He has further stated that during investigation accused Bifan Dom confessed his guilt. He has further stated that the witnesses including the witnesses examined on behalf of the prosecution had supported the prosecution case before him. The informant has also supported the prosecution case. 15. It appears from the impugned judgment that it has Patna High Court CR. APP (DB) No.667 of 2013 (4) dt.29-07-2013 9/12 also been argued by learned Additional Public Prosecutor before the trial court that witness 1 to 5 retracted from their statement given before the Police as they have entered into verbal compromise with the accused persons knowingly and deliberately and did not support the prosecution case. The learned trial court has referred and relied upon two decisions of the Hon’ble Supreme Court as referred in paragraph 37 and 38 of the impugned judgment. 16. In the case of Bhajju @ Karan Singh Vs. State of M.P. reported in 2012 (2) B.L.J. SC 198, it has been held that evidence of hostile witnesses can also be relied upon by the prosecution to the extent it supports the prosecution version. The evidence of such witnesses cannot be treated as washed off the record. There is no legal bar to base conviction of accused upon such testimony, if corroborated by other reliable evidence. 17. In the case of Bable @ Gurdeep Singh Vs. State of Chattisgarh reported in 2012 (4) B.L.J. SC 5, it has been held that once registration of FIR is proved by police and the same is taken on record by court and prosecution establishes its case beyond reasonable doubt by other admissible, cogent and relevant evidence, in that case, it will be impermissible for the court to ignore evidentiary value of FIR. The FIR by itself is not a substantive piece of evidence but it certainly is a relevant Patna High Court CR. APP (DB) No.667 of 2013 (4) dt.29-07-2013 10/12 circumstance of evidence produced by Investigating Agency. Merely because informant had turned hostile it cannot be said that FIR would lose all its relevance and cannot be looked into for any purpose. 18. It is not in dispute that the evidence of hostile witnesses should be ignored or thrown out without considering its relevancy. It is also not in dispute as to whether the FIR has lost its importance. The decisions referred to above are not helpful to the prosecution. 19. It appears from the impugned judgment that the learned trial court has misdirected itself in paragraphs 34 and 36 of the impugned judgment in holding that the statement made under Section 161 Cr.P.C. before the Investigating Officer is admissible in evidence and can be relied upon even if those witnesses have not supported the prosecution case and turned hostile and secondly that even in case of witnesses including informant turning hostile, the Fardebeyan has not lost its evidentiary value and is a substantive piece of evidence. 20. It also appears that the learned trial court has relied upon the statement of the witnesses made under Section 161 Cr.P.C. before the Investigating Officer although they have contradicted their statement during the trial of the case. 21. In this Case it is not in dispute that Payarchand Dom Patna High Court CR. APP (DB) No.667 of 2013 (4) dt.29-07-2013 11/12 (deceased) was killed on the date and place of occurrence. The relevancy of the FIR has also not been questioned. According to Fard beyan the deceased was killed by the accused/appellants. The killing of the deceased by the accused/appellants has not been supported by any of the prosecution witnesses in court. Only the statement of witnesses before the police under Section 161 Cr.P.C. is not sufficient for holding a person guilty. The prosecution witnesses have supported the prosecution case to the extent that Prayarchand Dom was killed. Since they have not supported the prosecution version about the assailants they have been declared hostile by the prosecution. The commission of murder as stated by the prosecution witnesses has been accepted by the learned trial court as such it cannot be said that this part of the evidence has not been accepted nor is in dispute. During hearing of this appeal, the dispute has been raised that the trial court should not have relied upon the statement of witnesses made before the Investigating Officer as the prosecution witnesses have not supported their version during trial of the case. None of the material witnesses has supported the prosecution case as such the conviction is based on no evidence. 22. Learned Additional Public Prosecutor for the State could not point out that any of the prosecution witnesses has supported the prosecution case before the trial court. Patna High Court CR. APP (DB) No.667 of 2013 (4) dt.29-07-2013 12/12 23. In view of the aforesaid facts and circumstances, I find that there is no evidence to convict the appellants. The impugned judgment of conviction and sentence is not fit to be sustained. 24. Accordingly, the impugned judgment is set aside. Both the appeals are allowed. The appellants are directed to be released forthwith, if not required in any other case. (Amaresh Kumar Lal, J) (V.N. Sinha, J) V.N. Sinha, J. :- I agree A. F. R. (Kanchan)