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IN THE HIGH COURT OF PATNA
DINESH KUMAR SINGH, ARVIND SRIVASTAVA, JJ.
THE STATE OF BIHAR - Appellant
Versus
GIRISH LAL @ GIRISH KUMAR AND OTHERS - Respondent
Govt. Appeal (Db) No. 7 of 2019
Decided on : 28-09-2020
Indian Penal Code, 1860 – Sections 302/120B – Arms Act, 1959 – Section 27 – Murder and conspiracy – Appeal against acquittal – Motive of occurrence is alleged to be political one as son of informant got elected as Mukhiya which was not liked by respondent no.1 and in conspiracy with other respondents, son of informant has been killed – Not even a single witness saw actual occurrence of assault – Occurrence took place in an open area but no independent witness has come forward to support prosecution case – Only on the basis of an isolated circumstance, conviction cannot be recorded unless chain of circumstances are established and unerringly proved, which has not been done in present case – Circumstances must point towards guilt of accused only and nothing else – Post-mortem report further clouds prosecution version with regard to the time of occurrence – Nature of injury suggests that victim was not able to speak when entire prosecution is based on oral dying declaration – In an appeal against acquittal, if two views are reasonably possible on the basis of evidence on record, then view supporting acquittal of accused should be inferred – Appeal dismissed. (Paras 7, 19, 23, 24, 29 and 35)
Criminal Law – Appreciation of evidence – Medical evidence cannot override ocular evidence but when it completely negates ocular evidence, then it changes its character from opinionative to direct evidence – Ordinarily, value of medical evidence is only corroborative – Unless oral evidence is totally irreconcilable with medical evidence, it has primacy. (Para 30)
Indian Evidence Act, 1872 – Section 106 – Burden of proof – Cardinal principle of criminal jurisprudence pertaining to burden of proof is that same is on prosecution – Guilt of accused must be proved beyond reasonable doubt – However, burden on prosecution is only to establish its case beyond reasonable doubt and not all doubts. (Para 34)
JUDGMENT :
Dinesh Kumar Singh, J.
1. Heard learned counsel for the appellant and learned counsel for the respondents. IA. No. 1 of 2019
2. The above mentioned Interlocutory Application has been filed for condonation of delay of 8 months 15 days in filing the present appeal.
3. Considering the grounds taken in the interlocutory application showing sufficient cause for not filing the present appeal in time, the delay in filing the appeal is hereby condoned.
Govt. Appeal (DB) No. 7 of 2019
4. The present appeal has been preferred by the State of Bihar against the judgement of acquittal dated 2.6.2018 passed by the learned Additional Sessions Judge FTC II, Bettiah, West Champaran in S.T. No. 542 of 2014 arising out of Gopalpur P. S. Case No. 4 of 2014, whereby and whereunder the respondents have been acquitted for the charges under Sections 302/120B of the Indian Penal Code and Section 27 of the Arms Act.
5. The prosecution case got initiated on the fard-beyan of the informant Janak Mishra recorded on 10.1.2014 to the effect that the informant PW. 11 Janak Mishra, the father of the deceased and P. W. 1 Hridya Nand Mishra brother of informant were going to see their ailing relative in village Pakrihar. In the meantime, the informant saw that his son Anil Mishra was also leaving the house for some work, on his motorcycle. On enquiry, the son of the informant Anil Mishra conveyed to him that he was going to participate in a Panchayati at village Bakulahar diversion. Thereafter, all the three left their house together but when they reached near Bakulahar chowk, the informant P.W. 11 and his brother P.W. 1 turned towards the western side whereas his son turned towards the village Bakulahar. After an hour, while the informant P.W. 11 and his brother P.W. 1 Hridya Nand Mishra were returning after visiting their ailing relative, they reached near Fazihatowa basic school, at about 12.30 P.M., they heard the sound of gun firing. They got scared and saw several persons on three motorcycles armed with pistol. The informant P.W. 11 and his brother P.W. 1 identified four persons, namely, Manbodh Sah , Mithu Singh, Vinod Singh and Jakir Mian alias Ansari. Thereafter the informant and his brother proceeded further and saw the motorcycle of his son Anil Mishra in parked position. However, the son of the informant was lying in a pool of blood in injured condition.
6. It is further claimed by the informant P.W. 11 that his son stated to him and his brother P.W. 1 that he was shot at at the behest of Girish Lal, respondent no. 1 who wants to became Mukhiya. On hearing the sound of gun firing, the villagers reached on the spot and thereafter the injured was brought to MJK Hospital, Bettiah where the doctor declared him dead.
7. The motive of the occurrence is alleged to be political one as the son of the informant got elected as Mukhiya, which was not liked by the respondent no.1 Girish Lal and hence, in conspiracy with respondent no. 6, Mithu Singh, respondent no. 5, Vinod Singh, and others, the son of the informant has been killed.
8. On the basis of the aforesaid fard-beyan Gopalpur P.S. Case No. 4 of 2014 was registered under Section 302 of the IPC. On conclusion of investigation, the police submitted charge-sheet. Consequently, after taking cognizance, the learned Judicial Magistrate committed the case to the Court of Sessions vide order dated 31.7.2004. Consequently, charges were framed.
9. In order to substantiate its charges, the prosecution examined 17 witnesses whereas the defence examined 3 witnesses. Apart from that, the prosecution and the defence also exhibited several documentary evidence.
10. Except P.W. 1 Hridya Nand Mishra and P.W. 11, Janak Mishra, the informant, all are hear say witnesses.
11. Considering the evidence of PW-1 Hridaya Nand Mishraand PW-11 Janak Mishra, who are only the eye witnesses of the occurrence, the learned trial Court doubted their credibility on the ground that the occurrence took place in an open place but no independen
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