2005 Supreme(SC) 1466

2005(7) Supreme 459
Supreme Court of India
(From Patna High Court)
B.N. Agrawal & A.K. Mathur, JJ.
Rajan Rai —Appellant
versus
State of Bihar —Respondent
Criminal Appeal No. 199 of 2000
Decided on 10-11-2005
Counsel for the Parties :
For the Appellant : P.S. Mishra, Sr. Advocate, Harshvardhan Tathagat, Upendra Mishra, Rajeev Singh, Amitesh Mishra and Rajesh Prasad Singh, Advocates.
For the Respondent : B.B. Singh and Kumar Rajesh Singh, Advocates.

Important point
Judgment of acquittal against other accused arising out of the same very incident would not be relevant in trial of accused tried subsequently.

Headnote:Indian Penal Code, 1860—Section 302/34—Explosive Substances Act, 1908—Sections 3 and 5—Evidence Act, 1872—Sections 40 to 44—Appellant and four other accused assaulted deceased by throwing bombs—Trial of appellant was separated as he was absconding and other four accused were tried and were acquitted by High Court in appeal—Appellant was convicted by trial Court and conviction upheld by High Court in appeal—Effect of judgment of acquittal against four accused—Judgment was irrelevant and could not have been taken into consideration by High Court and Court was justified in ignoring judgment of acquittal—PW9, brother of deceased, whose fardbeyan was recorded by police just fifteen minutes after the incident fully supported the case and name three more eye witnesses who were injured in the incident—Those three witnesses though supported case when examined immediately after recording of fardbeyan but could not be examined in trial as prosecution found they were afraid of accused—One of the accused had died before even trial commenced —Sufficient evidence that appellant shared common intention with deceased accused—Conviction of appellant with aid of Section 34 IPC could not be interfered with.

       Held : Coming to the first submission very strenuously canvassed by Shri Mishra, it would be necessary to refer to the provisions of Sections 40 to 44 of the Indian Evidence Act, 1872 [in short ‘the Evidence Act’] which are under the heading ‘Judgments of Courts of justice when relevant’, and in the aforesaid Sections the circumstances under which previous judgments are relevant in civil and criminal cases have been enumerated. Section 40 states the circumstances in which a previous judgment may be relevant to bar a second suit or trial and has no application to the present case for the obvious reasons that no judgment order or decree is said to be in existence in this case which could in law be said to prevent the Sessions Court from holding the trial. Section 41 deals with the relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction and is equally inapplicable Section 42 refers to the relevancy and effect of judgments, orders or decrees other than those mentioned in Section 41 in so far as they relate to matters of a public nature, and is again inapplicable to the present case. Then comes Section 43 which clearly lays down that judgments, order or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of the Evidence Act. As it has not been shown that the judgment of acquittal rendered by the High Court in appeals arising out of earlier sessions trial could be said to be relevant under the other provisions of the Evidence Act, it was clearly “irrelevant” and could not have been taken into consideration by the High Court while passing the impugned judgment. The remaining Section 44 deal with fraud or collusion in obtaining a judgment, or incompetency of a court which delivered it, and can possibly have no application in the present case. It would thus appear that the High Court was quite justified in ignoring the judgment of acquittal rendered by it which was clearly irrelevant. (Para 8)

       In view of the foregoing discussion, we are clearly of the view that the judgment of acquittal rendered in the trial of other four accused persons is wholly irrelevant in the appeal arising out of trial of appellant - Rajan Rai as the said judgment was not admissible under the provisions of Sections 40 to 44 of the Evidence Act. Every case has to be decided on the evidence adduced therein. Case of the four acquitted accused persons was decided on the basis of evidence led there while case of the present appellant has to be decided only on the basis of evidence adduced during the course of his trial. (Para 10)

       Now the question arises as to whether the trial court as well as the High Court was justified in placing reliance upon the evidence of PWs 2, 3, 5 and 9. PW 9 is the informant himself and, being brother of the deceased, most competent person to have witnessed the occurrence that had taken place in the outer verandah of the house. PW 9 himself was injured in the said occurrence and was examined by Dr. B.P. Tribedi [PW 12] who found four injuries on his person caused by explosive substance, such as bomb. The Investigating Officer [PW 17] heard the sound of bomb explosion at the police station which was at a distance of 1/4th kilometer from the place of occurrence and arrived there at 8.25 p.m., i.e., only after 15 minutes of the occurrence which had taken place at 8.10 p.m. - and recorded fard-beyan of PW 9 on the basis of which formal FIR was registered at the police station. The informant - PW 9 in his substantive evidence in the court has supported the prosecution case disclosed by him in all material particulars. In the FIR he disclosed names of three witnesses specifically, who had received injuries, namely, DWs 1, 2 and 3. Apart from these injured witnesses, it has been stated in the FIR that there were other persons as well who had seen the occurrence. Immediately after the fard-beyan was recorded, the statements of PWs 2, 3 and 5 were recorded by the police without any delay whatsoever. In their statements made before the police, they have categorically supported the prosecution case disclosed in the FIR. They have also specifically stated that all the accused persons threw bomb upon the deceased as a result of which he received injuries and succumbed to the same. PW 9 stated in his evidence that the three injured witnesses, referred to above, were not ready to depose out of fear of the accused persons. Presence of three injured witnesses, namely, DWs 1, 2 and 3 at the place of occurrence has been accepted by them and their injuries have been proved by the two doctors - PWs 15 and 16. In their evidence, DWs 1, 2 and 3 have simply stated that the appellant was not present at the place of occurrence. It appears that these three injured witnesses were not ready to depose on behalf of the prosecution out of fear of the accused persons, as such, merely because they could not be examined by the prosecution, the evidence of PWs 2, 3 and 5 cannot be discarded especially when their statements were recorded by the police immediately after recording of the fard-beyan. As such, no adverse inference can be drawn against the prosecution for not examining the three injured witnesses. The evidence of PWs 2, 3 and 5 is consistent with the prosecution case disclosed in the FIR as well as in the substantive evidence of the informant - PW 9. In our view, the trial Court and the High Court were quite justified in placing reliance upon their evidence. In view of the facts stated above, we are of the view that the prosecution has succeeded in proving its case beyond reasonable doubt. (Para 11)

       In the present case, all the four eyewitnesses, namely, PWs 2, 3, 5 and 9, upon whom reliance has been placed by the two courts below, have candidly and consistently stated that the appellant and accused Tileshwar Rai along with other accused persons came to the house of the deceased and threw bomb upon him as a result of which he received injuries and succumbed to the same. We have already found that the evidence of these witnesses has been rightly found to be reliable by the trial court as well as the High Court so far as the appellant is concerned. We do not find any reason whatsoever to discard their evidence so far as participation of accused Tileshwar Rai in the crime is concerned. From the prosecution evidence it becomes clear that appellant shared common intention with accused Tileshwar Rai to cause death of the deceased. Thus, we have no difficulty in holding that if accused Tileshwar Rai would not have died, on the basis of evidence adduced by the prosecution, which is unimpeachable, he was liable to be convicted under Section 302 with the aid of Section 34 IPC, but merely because he died before the commencement of his trial and could not be tried, the appellant cannot take any advantage therefrom. For the foregoing reasons, we are of the view that the High Court has not committed any error in upholding convictions of the sole appellant under Section 302 read with Section 34 IPC as well as Sections 3 and 5 of the Act. (Para 12)