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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, MADHURESH PRASAD, JJ.
Mallik Yadav S/o Late Laxmi Yadav - Appellants
Versus
The State of Bihar - Respondent
Criminal Appeal (DB) No.1036 of 2016
Decided on : 01-12-2021
Criminal Law – Appreciation of evidence – Testimony of witnesses cannot be rejected merely on the point of inimical background – Requirement of law is that testimony of inimical witnesses has to be considered with caution – If witnesses are deemed not credible in their testimony that would derail prosecution efforts to secure a verdict of guilt or allow defence to raise reasonable doubt necessary to prevent conviction – A witness is normally considered to be independent unless he or she comes out from sources which are likely to be tainted – Ordinarily, a close relation would be last to screen real culprit and falsely implicate an innocent person – Duty is cast upon Court to examine testimony of inimical witnesses with due caution and diligence – However, it is duty of Court to determine every case with respect to every witness whether witness s credible in his testimony or not, as credibility is critical to both prosecution and defence in a criminal case. (Paras 54 to 56)
Indian Penal Code, 1860 – Sections 302/34 – Arms Act, 1959 – Section 27 – Murder – Common intention – Life sentence – Preparation of inquest report, inspection of place of occurrence, sending body from place of occurrence to hospital for post-mortem examination and autopsy on body of deceased were held much prior to institution of FIR – Major part of investigation had been conducted by police even prior to institution of FIR – FIR has belatedly been instituted after due deliberations and consultations – Apart from official witnesses, all witnesses examined on behalf of prosecution are closely related to deceased – Members of prosecution party including deceased were being prosecuted by accused persons in different cases – Investigating Officer did not find any evidence of dragging – Even doctor who conducted post-mortem examination did not find any scratch on body of deceased – There appears to be no certainty in testimony of witnesses regarding actual place where incident of murder took place – Witnesses are not consistent even on point of house from which victim was dragged out and shot dead – Witnesses examined during trial have deposed differently – Discrepancies made in their deposition about manner of occurrence creates doubt about veracity of prosecution case – Non-examination of author of inquest report has certainly prejudiced case of defence – Witnesses examined during trial are not consistent even on point of weapon in hands of accused persons – In view of inordinate and unexplained delay in lodging FIR, glaring loopholes in investigation, material inconsistencies in evidence of witnesses examined during trial on behalf of prosecution, failure to prove manner of occurrence and place of occurrence and failure to produce material exhibits, prosecution has not been able to prove charges against appellants beyond shadow of reasonable doubt – Impugned judgment of conviction and consequent order of sentence set aside and appellants acquitted of charges levelled against them. (Paras 45, 46, 47, 50, 51, 52, 57, 58, 59, 61 to 69)
AIR 1973 SC 501; (2004) 1 SCC 421 – Referred.
JUDGMENT :
ASHWANI KUMAR SINGH, J.
The appellants have been held guilty vide judgment dated 6.09.2016 passed by the learned 5th Additional Sessions Judge, Munger (hereinafter referred to as the “Trial Court”) in Sessions Trial No. 44 of 2011 arising out of Muffasil P.S. Case No.168 of 2010 for the offences punishable under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. Vide a consequent order dated 09.09.2016, the Trial Court sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs. 25,000/-each under Section 302 of the Indian Penal Code and rigorous imprisonment for three years and to pay a fine of Rs.5,000/-each under Section 27 of the Arms Act. Both the sentences have been ordered to run concurrently.
2. The appellants have challenged the aforesaid conviction and sentence imposed against them by the Trial Court by filing the present appeal before this Court.
3. The prosecution in instant case was launched by registering Mufassil P.S. Case No. 168 of 2010 dated 13.09.2010 under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act against five persons, namely, Tulsi Yadav, Dhuran Yadav, Karelal Yadav, Mallik Yadav and Samtolla Devi on the basis of a written complaint made by one Bindeshwari Yadav regarding incident which took place at 05:00 AM on 13.09.2010, to the SHO, Muffasil Police Station at 06:30 AM on 13.09.2010.
4. The prosecution story, in brief, as per the informant is that on 13.09.2010 at around 05:00 AM, all the five accused persons being variously armed with pistol came to his house and one Madho Yadav, a nephew of the informant, was dragged out of the house and shot dead. The informant further alleged that Mallik Yadav and Samtolla Devi had given order upon which Tulsi Yadav pumped bullet in the chest of Madho Yadav, who died on the spot. The occurrence is alleged to have been seen by Pawan Yadav, Rajesh Yadav, Vikash Yadav, Sanju Devi and others. The cause of occurrence is that on 12.09.2010 all the accused persons had demanded an extortion amount of Rs. 1 lac from the deceased and, the refusal of same led to his killing.
5. The inquest report (Exhibit-3) was prepared by one Vinay Shankar (not examined), a Sub-Inspector of Police of Mufassil Police Station at 09:00 AM on 13.09.2010 in Village-Jaffarnagar. The informant Bindeshwari Yadav (P.W.5) and one Vikash Yadav (son of the deceased) are the witnesses to the inquest.
6. A perusal of the postmortem report (Exhibit4) would reveal that the body of the deceased was received at 09:00 AM on 13.09.2010 at Sadar Hospital, Munger. Dr. Inamul Rahman (P.W.8), a Medical Officer of Sadar Hospital, Munger conducted autopsy on the body of the deceased Madhav Yadav at 12:55 PM on 13.09.2010. The body was identified by the two chowkidars, namely, Bipin Sah and Samarjit Paswan and the informant Bindeshwari Yadav.
7. It is manifest from the first information report (for short the “FIR”) that the same was instituted on the basis of the written complaint of Bindeshwari Yadav at 03:00 on 13.09.2010 PM and the investigation of the case was taken up by the SHO himself, namely, Pravendra Bharti (P.W.9).
8. During investigation, the Investigating Officer inspected the place of occurrence, recorded the statement of witnesses and, on completion of the investigation, submitted charge-sheet against the two appellants and another accused, namely, Karelal Yadav. However, the investigation was kept pending as against the other two FIR named accused persons Dhuran Yadav and Samtolla Devi.
9. On receipt of the report submitted under Section 173(2) of the Code of Criminal Procedure (for short the “Cr.P.C.”), the learned Chief Judicial Magistrate, Munger took cognizance of the offences and after complying with the statutory requirements as prescribed under Section 207 Cr.P.C., committed the case of the appellants to the Court of Sessions for trial on 11.01.2011.
10. Since the accused Karelal Yadav was a minor in conflict with law on the d
(1) FIR is an important document even though it is not a substantive piece of evidence. Prompt FIR prevents possibility of coloured version being put by informant.(2) Testimony of witnesses cannot be....
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