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1986 Supreme(Pat) 91
PATNA HIGH COURT
Krishna Ballabh Sinha and Phani Bhushan Prasad JJ.
Shiva Balak Rai
Versus
State Of Bihar
Criminal Appeal No. 276 of 1982 ;
Decided On : MARCH 17, 1986
The failure of the prosecution to examine the Police Investigating Officer and the doctor who performed the autopsy prejudiced the defense of the accused.
Headnote:
CRIMINAL APPEAL - MURDER - [INDIAN PENAL CODE, 1860 - SECTIONS 302, 147] - EVIDENCE - IDENTIFICATION OF ACCUSED - MEANS OF IDENTIFICATION - CONTRADICTORY AND UNSATISFACTORY EVIDENCE - ABSENCE OF CORROBORATIVE MEDICAL EVIDENCE - FAILURE TO EXAMINE POLICE INVESTIGATING OFFICER AND DOCTOR WHO PERFORMED AUTOPSY - PREJUDICE TO ACCUSED - ADDITIONAL EVIDENCE - POWER OF APPELLATE COURT TO TAKE ADDITIONAL EVIDENCE - [CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 391] - EXERCISE OF POWER - CONDITIONS - FAILURE OF PROSECUTION TO AVAIL OPPORTUNITY TO PRODUCE WITNESSES IN TRIAL COURT - PROLONGED PROSECUTION - MENTAL AGONY OF ACCUSED - DISCHARGE OF ACCUSED.
Fact of the Case:
The appellants were convicted of murder and sentenced to life imprisonment. The prosecution alleged that the appellants assaulted the deceased with lathis and a farsa, causing his death. The appellants claimed that the deceased died as a result of injuries sustained when he dashed against a pole while drunk.
Finding of the Court:
The court found that the evidence of the prosecution witnesses was contradictory and unsatisfactory with regard to the means of identification of the appellants. The court also found that there was no corroborative medical evidence to support the allegations that the appellants caused injuries to the deceased. The court further found that the prosecution had failed to examine the Police Investigating Officer and the doctor who performed the autopsy, which prejudiced the defense of the accused.
Issues: 1. Whether the evidence of the prosecution witnesses was sufficient to prove the identity of the appellants beyond a reasonable doubt. 2. Whether the failure of the prosecution to examine the Police Investigating Officer and the doctor who performed the autopsy prejudiced the defense of the accused. 3. Whether the appellate court should allow the prosecution to give additional evidence at this stage.
Ratio Decidendi: 1. The court held that the evidence of the prosecution witnesses was contradictory and unsatisfactory with regard to the means of identification of the appellants. The court found that the witnesses gave inconsistent statements about the presence of torches at the scene of the crime and that they failed to identify the appellants in a lineup. 2. The court held that the failure of the prosecution to examine the Police Investigating Officer and the doctor who performed the autopsy prejudiced the defense of the accused. The court found that the Police Investigating Officer could have provided evidence about the circumstances of the crime and that the doctor could have provided evidence about the cause of death. 3. The court held that the appellate court should not allow the prosecution to give additional evidence at this stage. The court found that the prosecution had ample opportunity to produce the witnesses in the trial court and that it would be unfair to the appellants to reopen the case at this stage.
Final Decision: The court allowed the appeal, set aside the conviction and sentence, and directed the appellants to be discharged from the liability of their bail bonds.
KRISHNA BALLABH SINHA, J.
1. All the four appellants have been convicted under S. 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. They have also been convicted under S. 147 of the Indian Penal Code, for which sentence of one years rigorous imprisonment has been awarded to them. The sentences have been ordered to run concurrently.
2. Briefly stated the case of the prosecution is that the marriage ceremony of the son of Adalat Rai, the informant, was performed about a fortnight prior to the day of the occurrence, in which he had arranged a feast, which was attended by a large number of persons. However, some persons could not attend the feast on that occasion. So on 18-5-1977, he invited Aziz Mian (P. W. 2) and Sanaullah Mian, since the deceased, at his residence in village Charagaha Dhobia Tola, lying within Turkaulia Police Station in the district of East Champaran. Besides them, Ganesh Rai (P. W. 4) of village Jagiraho, was also invited to attend the feast. The invitees came at his house at about 9 p.m. Sanaullah Mian finished his meal and left the place while the other invitees were still taking their food. Only some time after his departure, the informant heard the alarm raised by Sanaullah Mian, who was crying for help. The informant rushed with a torch in his hand. When he reached near his field situated east of the house of accused Ram Chandra Rai, he found appellants Shiva Balak Rai, Jokhan Rai, Ramautar Rai and Dina Nath Rai assaulting Sanaullah Mian with lathi. Accused Ram Chandra Rai was armed with farsa, who was also assaulting him with its lathi portion. Sanaullah Mian was lying injured in the field. Aziz Mian (P. W. 2) and one Ram Lagan Sah also reached there. They asked the accused persons not to assault Sanaullah Mian, but threats were held out to them. The accused persons dragged Sanaullah Mian by his feet and took him at their Darwaja where he was assaulted with spade on his head. Adalat Rai (P. W. 5) reported the matter to the village Choukidar, who came with him and found the dead body of Sanaullah Mian lying at the Darwaja of accused Ram Chandra Rai. One Singhasan Baitha had executed a deed of conditional sale in favour of the deceased for a piece of land. The said land was purchased, subsequently, by accused Ram Chandra Rai from Singhasan Baitha, which gave rise to a dispute between the parties and this was alleged to be the motive for the occurrence. Adalat Rai (P. W. 5) went to Turkaulia Police Station on 19-5-1977 at 2 a.m. with his co-villager Hafiz Mian (P. W. 3) and lodged the first information report, on the basis of which the police registered a case and after investigation submitted charge-sheet. Accused Ram Chandra Rai died before commencement of the trial.
3. In support of the charges, the prosecution examined five witnesses. Besides the informant. P. W. 1 Ram Lagan Sah, P. W. 2 Aziz Mian, P. W. 3 Hafiz Mian and P. W. 4 Ganesh Rai figured as eye-witnesses of the occurrence. Four witnesses were examined on behalf of the appellants in the trial Court. D. W. 1 Balmukund Pandey proved the formal first information report (Ext. A) of Turkaulia Police Station Case No. 11(5)77 and another first information report of Turkaulia P. S. Case No. 5(7)78 and (Ext. A/2). D. W. 2 Panchanan Sarma, the Record Keeper of Collectorate, formally proved a report (Ext. B) regarding destruction of a case record. D. W. 3 Narendra Narayan Singh, Assistant Sub-Inepector of Police also formally proved a first information report (Ext. A/3). Satyadeo Thakur (D. W. 4) formally proved injury reports (Exts. C and C/1) of accused Ram Chandra Rai and Shiva Balak Rai.
4. Upon consideration of the evidence led on behalf of the parties, the IInd Additional Sessions Judge, Motihari, convicted the appellants and passed sentences against them, as mentioned above.
5. The learned counsel for the appellants contended that the occurrence, admittedly, took place in the dark-night and the evidence adduced w
