2017 Supreme(Pat) 1469

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
Kameshwar Prasad Yadav son of late Dukhan Prasad Yadav - Appellant
Versus
The State of Bihar - Respondent
Criminal Appeal (DB) No. 1048 of 2009
Decided On : 29-06-2017

Headnote:

Indian Penal Code, 1860 – Sections 148, 302/149, 364/149 and 201/149 – Arms Act, 1959 – Section 27 – Murder, kidnapping, rioting and screening of evidence – Common object – Life sentence – Eye-witness account given by informant, on a close scrutiny, becomes unbelievable – Evidence of PWs not looking credible – Here are also contradictions in their deposition which make them wholly unreliable – As testimonies of two material eye-witnesses do not inspire confidence in mind of Court and discrepancies and contradictions are serious which go to the root of matter, they would certainly create dent in prosecution version – Long delay in lodging of FIR remained unexplained – Mere delay in investigation of FIR would not be a ground to discard prosecution case, but if inordinate delay in lodging FIR is not satisfactorily explained, delay would be fatal to prosecution – Prosecution has not examined I.Os. of case – If it is a case of further investigation, investigation carried out initially which resulted in submission of first police report cannot be wiped out from record – If witnesses are available and they are yet withheld and no explanation is given for their non-examination, in appropriate case, court may draw adverse inference against a party shielding witness in terms of Section 114(g) of Evidence Act – Manner in which further investigation was conducted creates serious doubt about intention of Police to investigate case any further – there was no genuine effort to unravel truth and bring real culprit to book rather empty formality was done in name of further investigation – There was absolutely no commitment and sensitivity on part of investigating agency – Prosecution has failed to prove charges against appellant beyond reasonable doubt – Judgement of trial court cannot be sustained – Judgment of conviction and order of sentence passed by trial court has been set aside. (Paras 42, 43, 44, 46, 61, 62, 64, 66, 68, 72, 73, 79, 82 to 86)

Criminal Law – Appreciation of evidence – There is no invariable rule that interested evidence can never form basis of conviction unless corroborated in material particular by independent witness – Relationship is not the factor which affects credibility – Evidence of interested witness is to be scrutinized with care and caution – There is no hard and fast rule that family members can never be true witnesses to occurrence and that they will always depose falsely before court – A close relative who is a natural witness, cannot be regarded as an interested witness having direct interest in having accused somehow or other convicted – However, duty of court is to be cautious in appreciating and accepting evidence of a related or an interested witness. (Para 41)

Precedent – In criminal cases principles drawn from previous decided cases are meant to be used for proper appreciation of facts having regard to overall factual matrix of case and not as mathematical formulae – A decision is an authority for what it actually decides – While considering ratio laid down in one case, it is always to be kept in mind that every judgment should be read, as applicable to particular facts of that case and similarity of facts in one case cannot be used to bear in mind conclusion of fact in another case. (Para 53)

Criminal Procedure Code, 1973 – Section 173 – Crime investigation – Investigation must be fair, impartial and without bias or prejudice – It must be dispassionate – A manipulated investigation or an investigation which is mala fide and motivated, cannot lead to fair trial – Fair investigation would necessarily include a complete investigation which would mean that investigation ought to be conducted to look into all aspects by it in favour of accused or against him – Fair trial is impossible if there is no fair investigation – Error, illegality or defect in investigation cannot have any impact on a criminal case unless miscarriage of justice is brought or serious prejudice is caused to accused – If investigation is illegal or suspicious, rest of evidence is required to be scrutinized with circumspection. (Paras 70 and 71)