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2014 Supreme(Pat) 107
IN THE HIGH COURT OF JUDICATURE AT PATNA
I. A. ANSARI AND V.N. SINHA, JJ.
(27.1.2014)
Criminal Appeal (DB) No. 395 of 2012
Arising out of the judgment of conviction, dated 28th February, 2012 and the order of sentence, dated 01st March, 2012, passed in Sessions Case No. 237 of 2010 arising out of Rajoun Police Station Case No. 98 of 2009 by Shri Jyotindra Kumar Sinha, 1st Additional Sessions Judge, Banka.
Akhlesh Prasad Singh : Appellants
@ Akhileshwar Singh & Anr.
Vs.
The State of Bihar : Respondent
For the Appellants : Mr. Braj Nandan Prasad.
For the State : Mr. A.K. Sinha.
Headnote:Code of Criminal Procedure, 1973–Section 313–Examination of accused–Accused-appellants convicted u/ss. 302/326/34 IPC for setting on fire the wife of the informant–However, the trial court not put the various incriminating circumstances which it has relied upon for finding the accused persons guilty of the charges brought against them–If an accused is not properly examined u/s 313(1) (b) of the Cr.P.C. and his response to a given incriminating piece of evidence is not elicited by the trial court, then, such an incriminating piece of evidence cannot be relied upon–Placing reliance on an incriminating piece of evidence, which has not been put to an accused, would cause prejudice to the accused inasmuch as the accused, in such a case, must be treated to have been denied the opportunity to offer his explanation, if any, to the incriminating piece of evidence, which has come on record and relied upon by the court. (Paras 13 & 14)
Criminal Trial–Examination of witnesses–Merely because some persons, claiming themselves to be eyewitnesses, have given evidence describing the occurrence in tune with each other, their evidence cannot be made basis for holding them truthful witnesses, when their evidence is found to be intrinsically unreliable and does not inspire confidence–When a witness is neither wholly reliable nor wholly reliable, 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–Appeal allowed–Conviction and sentence set aside. (Paras 21 & 23)
AIR 1984 SC 1662; MANU/SC/0416/1992= AIR 1992 SC 2100–Referred.
2. The case of the prosecution may, in brief, be discussed thus:–
(i) Deceased Renu Devi was wife of the informant Gopal Prasad Singh (PW 4), PW 4 being son of PW 3 (Jagdish Prasad Singh). On 30.06.2009, at about 7 PM, Renu Devi, having served meals to her husband (PW 4), her father-in-law (PW 3) and her brother-in-law, Rishi Kumar (PW 2), went outside her matrimonial house to answer the call of the nature. Having answered nature’s call, when she was returning, her neighbours, accused Poonam Devi and her husband, accused Akhleshwar Prasad Singh, came out of their house together. While accused Poonam Devi was having, in her hand, a lota (pot) containing petrol, accused Akhleshwar Prasad Singh had a match box in his hand.
(ii) When Renu Devi was passing by the side of accused Poonam Devi’s house, accused Poonam Devi threw petrol from the lota on Renu Devi and accused Akhleshwar Prasad Singh threw a burning match stick on her and set her ablaze. Hearing the screams of Renu Devi, her husband, her father-in-law and her brother-in-law came out of their house and so did some of their neighbours, such as, PW 1 (Shyam Singh). While Renu Devi’s husband, her father-in-law and brother-in-law saw accused Poonam Devi throwing petrol on Renu Devi from the lota and her husband, accused Akhleshwar Prasad Singh, throwing a burning match stick towards Renu Devi and setting her on fire, their neighbour, Shyam Singh (P.W.1), saw Renu Devi burning. Having put out the fire, Renu Devi’s matrimonial family and her neighbours took Renu Devi to Jawaharlal Nehru Medical College and Hospital, Bhagalpur, at about 10:15 PM; but Renu Devi, while remaining under treatment, succumbed to her burn injuries on the very night of the occurrence.
(iii) On the very day of the occurrence, Renu Devi had lodged a case against accused, Akhleshwar Prasad Singh, Bishnu Singh and Poonam Devi, for having allegedly assaulted her and committed theft.
(iv) Following the death of his wife, Renu Devi, a fardbayan, which came to be treated as First Information Report (in short, FIR), was lodged by her husband, Gopal Prasad Singh (PW 4), on 01.07.2009 at 11:30 AM. Based on the FIR, Rajoun P.S. Case No. 98 of 2009 was registered under Sections 326/302/34 of the Indian Penal Code.
(v) During investigation, inquest was held over the dead body of Renu Devi and inquest report was prepared. Renu Devi’s dead body was also subjected to post mortem examination, which revealed that she had sustained approximately 80 per cent burn injuries on epidermal part of her body and that she had died, because of the said ante mortem burn injuries.
(vi) On completion of investigation, a charge sheet was laid, under Sections 326/302/34 of the Indian Penal Code, against both the accused aforementioned.
3. At the trial, when charges, under Sections 302 and 326 read with Section 34 of the Indian Penal Code, were framed against the two accused persons, both of them pleaded not guilty thereto.
4. In order to substantiate their case, prosecution examined altogether 8 witnesses. Both the accused were, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure and in their examinations aforementioned, they denied that they had committed the offences, which were alleged to have been committed by them, their case being that Renu Devi had been set ablaze by her husban
