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IN THE HIGH COURT OF JUDICATURE AT PATNA
Ashwani Kumar Singh, Partha Sarthy, JJ.
Fagu Mushahar Son of Hathu @ Chhathu Mushahaf - Appellant
Vs.
The State of Bihar - Respondent
Criminal Appeal (DB) No.772, 791 of 2016
Decided On : 11-05-2022
Indian Penal Code, 1860 – Sections 302, 364, 201 and 120-B – Murder, kidnapping, screening of evidence and conspiracy – Conviction and sentence – Appellants have not made any confession before Judicial Magistrate – Confession made by a co-accused whose trial was separately held could not have been used in any manner by Trial Court for arriving at a conclusion of guilt against accused-appellants – Not disclosing name of accused-appellants by informant in her oral statement creates serious doubt about identification of the accused-appellants at time of commission of offence – Attention of witnesses was drawn towards their previous statements – However, in absence of examination of Investigating Officer, contradiction could not be taken from P.Ws. – There are serious infirmities in prosecution evidence – Judgment of conviction and consequent order of sentence passed by Trial Court cannot be sustained – Impugned judgment set aside. (Paras 29, 31, 33, 34 and 35)
Criminal Procedure Code, 1973 – Section 164 – Indian Evidence Act, 1872 – Section 145 – Statement of a witness recorded under Section 164 of Cr.P.C. is a public document under Section 7 of Evidence Act – Statement recorded under Section 164 of Cr.P.C. is not a substantive piece of evidence – Such a statement can be used either for corroboration of testimony of a witness under Section 157 of Evidence Act or for contradiction thereof under Section 145 of Evidence Act – Section 145 of Evidence Act applies to cases where same person makes two contradictory statements either in different proceedings or at two different stages of a proceeding – Confession can be used against the maker of it – However, confession of one accused is not evidence as against co-accused. (Paras 27 and 28)
JUDGMENT :
Ashwani Kumar Singh, J.
With consent of the parties, these two appeals have been taken up for final hearing.
2. In these two appeals, the appellants have challenged the judgment of conviction and order of sentence dated 07.06.2016 and 09.06.2016 respectively passed by the learned 3rd Additional Sessions Judge, Bagaha (West Champaran) in Sessions Trial No.162 of 1996 arising out of Valmikinagar P.S. Case No.15 of 1992 whereby and whereunder they have been convicted and sentenced to undergo rigorous imprisonment for life and a fine of Rs.10000/-each for the offence punishable under Section 302 of the Indian Penal Code (for short ‘IPC’) and in case of non-payment of fine to further undergo rigorous imprisonment for a term of one year each, rigorous imprisonment for ten years and a fine of Rs.5000/-each for the offence punishable under Section 364 of the IPC and in case of non-payment of fine to further undergo simple imprisonment for six months each and rigorous imprisonment for 7 years and a fine of Rs.3000/-each for the offence punishable under Section 201 of the IPC and in case of nonpayment of fine to undergo a further period of imprisonment for three months each. However, no separate sentence has been passed for the offence under Section 120-B of the IPC.
3. The prosecution case is based on the oral statement of one Bhutahi Devi, recorded by Mr. B. K. Pandey, a Sub-Inspector of Police of Valmikinagar Police Station on 08.06.1992 at 7 a.m. in which she alleged that on 07.06.1992, in the night, while she was sleeping in the inner room of her house and her husband, a chowkidar, was sleeping in the outer room of the house, at about 3 a.m., some persons came and asked her husband Bhimal Mushahar to open the door. She also woke up. Her husband opened the door. She went to the room of her husband where she found one man armed with gun and another armed with lathi. They asked her husband to come out of the room. Her husband came out of the room and she also followed him. Outside the room, three persons were found standing. Out of them, two were holding lathi. When the informant requested them to allow her husband to return to his house, the miscreants threatened to kill her. They took her husband towards east. While they were taking him towards east, she heard one of the miscreants saying that this time he would not be spared. He would be killed and his body would be thrown. She stated that one of the miscreants was concealing his face by gamachcha. She described the physique of other miscreants and stated that they were speaking in Bhojpuri and if an opportunity is given to her, she would identify them as she had seen their face in moon light.
4. On the basis of the aforesaid oral statement of Bhutahi Devi, Valmikinagar P.S. Case No.15 of 1992 was registered on 08.06.1992 under Section 364 of the IPC against five unknown persons and investigation was taken up.
5. On completion of investigation, the Investigating Officer submitted charge-sheet under Section 173(2) of the Code of Criminal Procedure in the court of Additional Chief Judicial Magistrate against eight accused persons, namely, Balkishun Mahto, Chandrika Mahto, Ravindra Mahto, Ganga Mahto, Nandlal Mahto, Mangal Mushahar, Fagu Mushahar and Govind Mahto for committing the offences punishable under Sections 364, 302, 201 and 120B of the IPC.
6. At the time of filing of the charge-sheet Balkishun Mahto, Chandrika Mahto, Ravindra Mahto, Ganga Mahto and Nandlal Mahto were in custody whereas the other three accused persons were absconding.
7. After commitment of the case to the court of sessions for trial, the trial of absconding accused persons were split up and the trial against those who were in custody got concluded.
8. Subsequently, Fagu Mushahar and Govind Mahto were apprehended and were put on trial for hearing committed the offences under Sections 364, 302, 201 and 120B of the IPC.
9. During trial, altogether six witnesses were examined on behalf of the prosecution in su
(1) Conviction in a criminal trial is required to be certain and not doubtful. Burden of proof of guilt of accused is upon prosecution. It must stand by itself. (2) Cr.P.C does not oblige investigati....
The court emphasized that lack of essential documentation and procedural compliance invalidates the prosecution's case, leading to the acquittal of the accused who were convicted of kidnapping for ra....
In a criminal trial, purpose of examining the accused under section 313 of Code of Criminal Procedure, 1973 is to give him an opportunity to explain allegations against him, to understand as to wheth....
The main legal point established in the judgment is the requirement for reliability in evidence, including the identification of the accused, the medical evidence, and the procedure in recording the ....
Conviction under IPC Sections 364(A) and 395 reversed due to witness inconsistencies and insufficient evidence of identity and guilt.
Failure of prosecution to prove charge beyond reasonable doubt due to inordinate delay in FIR and weak identification evidence.
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