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2014 Supreme(Pat) 398
Patna High Court
JAYANANDAN SINGH and ADITYA KUMAR TRIVEDI, JJ.
(22.4.2014)
Criminal Appeal (DB) No. 963 of 2012
Yogi Ram @ Yogi Sah : Appellant
Vs.
The State of Bihar & Ors. : Respondents
For the Appellants : M/s Bindhyachal Singh, Ram Binod Singh, Parijat Saurav.
For the Respondents: M/s Pankaj Kumar Sinha, Ashok Kumar Verma.
Headnote:Code of Criminal Procedure, 1973–Section 372–Appeal against acquittal by the informant–re-appraisal of evidence–faced trial for the offences u/ss. 302, 302/34, 307/34 I.P.C. and Section 27(1) of the Arms Act and acquitted by the Trial Court-accused-respondent no. 3 put the gun on the head of the deceased and fired–no blackening or charring found around the injuries–these signs may be absent when the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame smoke and parties of the gun power will all follow the track of the bullet in the body–non presence of charring or blackening, tattoring around the injury is found fully explained–learned lower court has taken those parts where–upon witnesses were not at all cross-examined–the I.O. has conducted the investigation in a most perfunctory manner giving defence an opportunity to challenge the varacity of prosecution version inspiring the lower court to disbelieve the present case–the defence not laid base on its case during course of cross-examination–the failure on the part of defence by missing such opportunity is adverse to the interest of the accused–the question of exact timing by the PWs who immediately rushed to the spot after hearing sound of firing, has seriously been taken into consideration by the court below, which he could not, because of the fact that none of the witnesses had disclosed that at very time they had wrist watch and had seen the exact time–judgment of acquittal is unsustainable and set aside–accused respondents found guilty. (Paras 29, 31, 49, 52, 56 & 61).
Criminal Trial–Examination of Witnesses–non disclosure of the names of independent witnesses as well as non examination of independent witnesses is not a material point in case of evidence of interested witnesses are found to be cogent, reliable–moreover, the Evidence not requires quantity of the evidence, rather quality of the evidence. (Paras 57 & 58)
AIR 2013 SC 321, (2011)6 SCC 288, (2013)4 SCC 228, (2013)4 SCC 607, (1983)3 SCC 217, (2011)4 SCC 324, (1999)9 SCC 525, (2013)4 SCC 422, 2006 (4) PLJR 32, (2000)2 SCC 646, (2003)1 SCC 240, 2011 Cr. L.J. 663–Referred.
ADITYA KUMAR TRIVEDI, J.:–Appellant is the informant and father of the deceased. He has preferred this appeal under the provisions of proviso to Section 372 of the Code of Criminal Procedure against the judgment and order dated 31st of July, 2012 passed by the Adhoc Additional Judge, 1st, Buxar in Sessions Trail No.1/09, whereby and whereunder the learned court below has acquitted the respondent nos.2 to 4 from the charges framed against them under Sections 302, 302/34 and 307/34 and Section 27(1) of the Arms Act.
2. The prosecution case in brief is that in the morning of 19.08.2008 at 6.30 p.m. the appellant received information that his four bighas of land on khata no.1, which he had purchased from one Premchand Keshri, was going to be ploughed by the four accused persons by means of a tractor, with the help of 3-4 other unknown persons. On this information, he along with his sons, namely, the deceased Sarabjeet Kumar Gupta, PW-4 Ajit Kumar Gupta, PW-2 Munna Kumar Gupta, proceeded to his land. When they reached Manikpur canal bridge they saw Ramayan Pandey carrying a licensed gun and Ranjan Pandey and Raju Pandey (respondent no.3) armed with country made pistols. On seeing them informant asked them as to why they were going to plough his field since the land was registered in his name. Upon this Ramayan Pandey gave his gun to Raju Pandey (respondent no.3) and ordered him to kill the informant. Raju Pandey took the gun and fired upon him. Informant somehow saved himself and tried to escape and hide. In the meanwhile, Rajesh Pandey, Ranjan Pandey and Shashi Bhushan Pandey caught hold of his son, Sarvajit Kumar Gupta (deceased) and Raju Pandey put the gun on his head and fired, as a result of which he got badly injured and fell down. Thereafter, Rajesh Pandey and Shashi Bhushan Pandey exhorted to wipe out the entire family of the informant and fired upon his another son. The driver of the tractor, accused Ram Pravesh Paswan (respondent no.3), also came running with a country made shot gun and fired upon them. However, other sons of the informant somehow escaped. Meanwhile, on hearing the firings, people from nearby came running, upon which the accused persons withdrew giving threats. Thereafter, informant came to the place of occurrence and saw that his son Sarabjeet Kumar Gupta was dead. The informant claimed that he could identify the 3-4 unknown persons also accompanying the accused persons.
3. On the basis of this statement of informant, recorded on 19.8.2008 at 11.00 a:m, an FIR was registered. Investigation proceeded, and on completion of the same, police submitted charge-sheet against Shashi Bhushan Pandey and Raju Pandey, keeping the investigation pending against Ramayan Pandey, Ranjan Pandey and Rajesh Pandey and other 3-4 unknown persons. Cognizance was taken and the case was separated and was committed to the court of session for trail. During the trial prosecution examined altogether 10 witnesses, in which, PW-1 was the appellant (informant) and father of the deceased; PW-2 Munna Kumar Gupta and PW-4 Ajit Kumar Gupta were the other sons and eye witnesses; PW-3 Madan Pandey was a formal witness; PW-5 Fulan Singh and PW-6 Bhagwan Gupta were declared hostile; PW-8 Bal Krishan Rai was the I.O.; PW-9 Kameshwar Paswan was the witness of the inquest and PW-10 Dr.Ajay Kumar Pandey conducted the post mortem of the dead body. The defence also examined one witness, namely, Sonu Singh as DW-1. The documents exhibited on behalf of prosecution in the trial were Fardbeyan (Ext.-1); the signature of Munna Kumar Gupta (Ext.1/1); the signature of Dhansoi officer in-charge (Ext.-2); seizure list of tractor (Ext.-3); the entire Fardbeyan along with endorsement (Ext.-4); formal FIR (Ext.-4/1); handwriting and signature of the police officer on the seizure list of tractor (Ext.-5); inquest report (Ext.-6); para 1 to 27 of the case diary (Ext.-7); supplementary case diary (Ext.-8); signature of witness Bhagwan Gupta and Kameshwar
