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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, ARVIND SRIVASTAVA, JJ.
Abinash Sharma Son of late Nawal Kishore Sharma - Appellant
Versus
The State of Bihar - Respondent
Criminal Appeal (DB) No.820 of 2015
Decided On : 05-04-2021
Indian Penal Code, 1860 – Sections 147, 148, 302/149 – Murder and rioting – Common object – Conviction and sentence – Advocate Clerks are neither authors documents nor their owner nor their custodian nor are they privy contents thereof – Advocate Clerks cannot be treated as competent witnesses under such circumstance – They cannot be substitute for police officer who recorded fardbeyan or officer-in-charge of police station who drew formal FIR – Evidence given by them or obtained through them is not admissible – Evidence of hearsay witness is also of no help to prosecution case as he has deposed that he neither knew whereabouts of persons killed nor name of perpetrators of crime – In absence of examination of investigating officer during trial neither place of occurrence nor manner of occurrence has been established – Non-examination of investigating officer has caused prejudice to such an extent that it deprived defence an opportunity to test veracity of prosecution case – Same would prove fatal to prosecution case – Oral testimony of informant is not in alignment with medical evidence – Major discrepancies and improvements made in her evidence while deposing before court goes to root of matter and ushers in incongruities – Her deposition does not inspire confidence – There are major discrepancies, significant embellishments, material improvements and inconsistencies in evidence of PWs while deposing before Court which do affect core of prosecution case – They create serious doubt about their credibility as a witness – Prosecution has failed to establish guilt of appellant beyond reasonable doubt by adducing cogent and trustworthy evidence – Impugned judgment of conviction and order of sentence set aside. (Paras 38, 39, 53, 60, 64, 65 and 66)
Indian Evidence Act, 1872 – Section 134 – As a general rule, it is not the number, quantity but quality that is material – Time honoured principle is that evidence has to be weighed and not counted – There is no legal impediment in convicting a person on sole testimony of a single witness – Test is whether evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. (Para 42)
JUDGMENT :
ASHWANI KUMAR SINGH, J.
1. The appellant Abinash Sharma was tried by the court of Additional Sessions Judge 1st, Jehanabad in Sessions Trial No.165/2008/72/2014 arising out of Karpi P.S. Case No.33 of 2006 for the charges under Sections 147, 148, 379 and 302/149 of the Indian Penal Code and 27 of the Arms Act.
2. The trial court vide its judgment dated 25.08.2015 acquitted the appellant of the charges under Sections 379 of the Indian Penal Code and 27 of the Arms Act and held him guilty of the charges under Sections 147, 148, 302/149 of the Indian Penal Code.
3. After hearing the parties on the point of sentence, the trial court vide its order dated 26.08.2015 sentenced the appellant to undergo rigorous imprisonment for life and a fine of Rs.10,000/-and in default of payment of fine to undergo imprisonment for a further period of one year for the charges under Section 302/149 of the Indian Penal Code; rigorous imprisonment for a period of two years for the charge under Section 147 of the Indian Penal Code and rigorous imprisonment for a period of three years for the charge punishable under Section 148 of the Indian Penal Code. However, all the sentences were directed to run concurrently.
4. Being aggrieved by the aforesaid judgment of conviction and consequent order of sentence, the appellant has preferred the instant appeal before this Court.
5. The first information report (FIR) of Karpi P. S. Case No.33 of 2006 was registered on the basis of oral statement of Shradha Devi, wife of Sri Niwas Sharma, resident of village-Oar Bigha, P.S.-Karpi, District-Arwal, which was recorded by the SI of Police of Karpi Police Station, namely, U. K. Singh on 11.04.2006 at 7 a.m. at the dalan (a varanda with a roof outside the wall of a house) of Baliram Sharma in village-Oar Bigha, P.S.-Karpi, District-Arwal.
6. In her oral statement, Shradha Devi (P.W.1) disclosed that during the last night at about 9 p.m., her younger brother Putun Sharma came together with his friends Anil Sharma and a resident of Goh whose name is not known to her. They talked with her for sometime. Thereafter, they went on the rooftop of the dalan of Baliram Sharma to sleep. At about 12 midnight, she heard the sound of gunshot and immediately rushed towards the dalan of Baliram Sharma and saw Butan Sharma, resident of Puran, Abinash Sharma, resident of Senari and Sadhu Sharma, resident of Oar Bigha together with 6-7 unknown persons being variously armed with gun and rifle were descending on a bamboo ladder from the rooftop of the dalan. They went towards northern side opening fire. Thereafter, she climbed up on the same bamboo ladder to reach the rooftop of the dalan and saw that her brother and his two friends were shot dead and all their belongings were taken away. She alleged that Butan Sharma, Abinash Sharma, Sadhu Sharma and their 6-7 unknown accomplices had formed an unlawful assembly and killed her brother and his two friends due to previous enmity and took away their belongings.
7. The oral statement, reduced into writing by U. K. Singh, SI of Police of Karpi Police Station was read over and explained to Shradha Devi, who put her thumb impression over it after finding the contents to be true. Her co-villager Padum Narayan Sharma also put his signature as a witness to the fardbeyan.
8. Thereafter, U. K. Singh, SI of Police forwarded the fardbeyan to the Officer-in-charge of Karpi Police Station for instituting a case. Accordingly, Karpi P.S. Case No.33 of 2006 dated 11.04.2006 was registered at 10 a.m. under Sections 147, 148, 149, 379 and 302 of the Indian Penal Code and Section 27 of the Arms Act against Butan Sharma, Abinash Sharma, Sadhu Sharma and 6-7 unknown miscreants by the Officer-in-charge of Karpi Police Station and investigation was handed over to one Rameshwar Ram, SI of Police.
9. Immediately after institution of the FIR on 11.04.2006 itself, the investigating officer sent the bodies of the three deceased to the Sadar Hospital, Jehanabad for autop
The central legal point established in the judgment is the requirement for the prosecution to prove the case beyond reasonable doubt, including the place of occurrence and the examination of crucial ....
The prosecution must prove charges beyond reasonable doubt; unreliable eyewitness testimony, especially from near relatives, cannot substantiate a conviction.
The need for reliable witness testimonies and corroborating evidence, especially in the absence of independent witnesses, to establish charges beyond reasonable doubt.
The court holds that the prosecution failed to prove guilt beyond reasonable doubt due to significant contradictions in eyewitness accounts and absence of supporting medical evidence, warranting acqu....
A witness’s relationship to the deceased does not render their testimony unreliable or 'interested' absent specific motives for bias. Minor investigative flaws or procedural omissions by the police d....
The court acquitted the appellants due to insufficient evidence and inconsistencies in witness testimonies, emphasizing the need for credible proof in criminal convictions.
The prosecution must prove the case beyond reasonable doubt, relying primarily on credible eyewitness testimony and corroborative forensic evidence, particularly in murder convictions.
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