Shivji Sah vs State of Bihar - 2014 Supreme(Pat) 419

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(Pat) 419

Patna High Court
I.A. ANSARI and SAMARENDRA PRATAP SINGH, JJ.
(25.4.2014)
Criminal Appeal (DB) No. 734 of 2009
Against the judgment of conviction, dated 29th July, 2009, and the order of sentence, dated 03rd August, 2009, passed by Shri Arun Kumar Sharma, Additional Sessions Judge V, Rohtas at Sasaram, in Sessions Trial No. 261 of 2003/Trial No. 3 of 2009, arising out of Natwar Police Station Case No. 42 of 2000
Shivji Sah : Appellant
Vs.
The State of Bihar : Respondent

Advocates:
For the Appellant : M/s Bhavesh Kumar, Sheikh Akran Ahmad.
For the Respondent: Mr. Ashwini Kumar Sinha.

Headnote:Criminal Law–Appreciation of evidence–When there is conflict between medical evidence on record and an eye-witness's account of occurrence, conflict between two has to be resolved in favour of defence inasmuch as Court, in such a situation, would not be able to hold, boldly and confidently, as to whether description of occurrence given by eye-witness is true or it is medical evidence which is true–Medical evidence cannot always be treated as touchstone for testing veracity of ocular evidence–If Court believes that an eye-witness is telling truth, there is no impediment in founding conviction of accused on eye-witness's account of occurrence even if medical evidence points to the contrary. (Paras 22 and 23)
       Criminal Law–Appreciation of evidence–One infirm witness cannot be treated to have corroborated evidence of another infirm witness meaning thereby that witnesses of same brand cannot be taken to have corroborated each other–When a witness is neither wholly reliable nor wholly unreliable, his evidence cannot be taken to have been corroborated by a witness of same brand, a witness who is neither wholly reliable nor wholly unreliable, for, evidence is not to be counted, but weighed–It is not the number of the witnesses which determines outcome of a trial; rather, it is inherent falsity or truth of evidence given by witness which decides outcome of trial–If each one of a large number of witnesses is found to be wholly unreliable their evidence cannot become acceptable as true merely because a large number of similar brand of witnesses has corroborated each other–Merely because some persons, claiming themselves to be eye-witnesses, have given evidence describing occurrence, their evidence cannot be made basis for holding them truthful witnesses when their evidence is belied by medical evidence on record unless their evidence is found to have been corroborated by credible independent evidence, direct or circumstantial. (Paras 47 and 49)
       Indian Penal Code, 1860–Section 302–Arms Act, 1959–Section 27–Murder–Conviction–Evidence of PWs mutually contradictory–Evidence of eye-witnesses which prosecution has adduced in present case, cannot be safely relied upon unless same is found to have been corroborated by some credible independent evidence–None of witnesses who have claimed themselves to be eye-witnesses, can be treated or held to be wholly reliable–Ocular description of occurrence as given by witnesses is not supported by medical evidence on record; rather, medical evidence on record belied description of occurrence which witnesses had given claiming themselves to be eye-witnesses–Non-examination of any of those witnesses who had gathered at or near place of occurrence soon after occurrence, is a serious lapse on part of prosecution–It was too hazardous to convict accused-appellant when evidence which prosecution has adduced, is an ad-mixture of half-truth and untruth and it is not only difficult, but wholly impossible to disengage truth from falsehood–Benefit of such a situation ought to have been given to accused-appellant–Prosecution had failed to bring home charges against accused-appellant beyond reasonable doubt and accused-appellant was entitled to be accorded benefit of doubt–Conviction and sentence set aside. (Paras 21, 22, 23, 24, 27, 32, 33, 40, 42, 44, 50, 51, 52 and 55)
       AIR 1976 SC 989–Relied.

JUDGMENT :

I. A. ANSARI, J.:–By the judgment, dated 29.07.2009, passed, in Sessions Trial No. 261 of 2003, by learned Additional Sessions Judge V, Rohtas at Sasaram, the appellant, Shivji Sah, stands convicted under Section 302 of the Indian Penal Code and also under Section 27 of the Arms Act, 1959. Following his conviction under Section 302 of the Indian Penal Code, the accused-appellant, Shivji Sah, has been sentenced to undergo imprisonment for life and pay fine of Rs. 5,000/- and, in default of payment of fine, suffer simple imprisonment for six months. Consequent upon his conviction under Section 27 of the Arms Act, 1959, the accused-appellant, Shivji Sah, has been sentenced to undergo rigorous imprisonment for three years and pay fine of Rs. 1,000/- and, in default of payment of fine, suffer simple imprisonment for one month. The sentences have been directed to run concurrently.

2. The case of the prosecution may, in brief, be described thus:—

(i) Bharat Sah (since deceased) was brother of Baijnath Sah (PW 6). On 05.06.2000, at about 09:15 PM, when Bharat Sah, followed by his brother, Baijnath Sah (PW 6), was passing through road in front of one Chhatu Singh’s house, which is at a distance of 10 yards from road, accused Shivji Sah and accused Vishwanath Sah, along with two other unknown persons, started firing at Bharat Sah. When the firing so took place, Baijnath Sah was at a distance of about 5 steps behind his brother, Bharat Sah. As Bharat Sah fell down on being shot as mentioned hereinbefore, Baijnath Sah went running towards his brother, Bharat Sah; but the assailants, namely, accused Shivji Sah and accused Vishwanath Sah, along with others, fled away. As Baijnath Sah raised hulla (alarm), many of his co-villagers and relatives gathered, at the place of occurrence, including Laxman Sao (PW 2) and Ramakant Sah (PW 3).

(ii) On being informed about the occurrence, Sub-Inspector of Police, A. K. Singh of Natwar Police Station, came rushing to the place of occurrence, where, on a query made, Baijnath Sah (PW 6) gave a statement, which was recorded by the said police officer, wherein Baijnath Sah (PW 6) described the occurrence as indicated above.

(iii) Treating the said statement as fardbayan, Natwar Police Station Case No. 42 of 2000 was registered, under Section 302/34 of the Indian Penal Code read with Section 27 of the Arms Act, 1959, against accused Shivji Sah, accused Vishwanath Sah and two unknown persons.

(iv) During investigation, police held inquest over Bharat Sah’s dead body, which was also subjected to post mortem examination, and, on completion of investigation, a charge sheet was laid, under Sections 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, against the two accused named in the First Information Report, namely, Shivji Sah and Vishwanath Sah.

3. At the trial, when a charge, under Section 302 read with Section 34 of the Indian Penal Code, was framed against the two accused, both the accused pleaded not guilty thereto. At the trial, a charge was also framed, under Section 27 of the Arms Act, against both the accused. To the charge so framed also, both the accused aforementioned pleaded not guilty.

4. In support of their case, prosecution examined as many as 10 witnesses. Accused was, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure and, in their examinations aforementioned, both the accused denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial and of the two accused aforementioned having been implicated falsely, in the case, due to previous enmity, though Bharat Sah was killed by unknown robbers, while he was returning to his house after closing his shop at Natwar Bazar. The defence, too, adduced evidence by examining two witnesses.

5. The learned trial Court, having reached the conclusion that the case, as against accused Vishwanath Sah, had not been proved

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