2022 Supreme(Pat) 288

IN THE HIGH COURT OF JUDICATURE AT PATNA
A.M. BADAR, SUNIL KUMAR PANWAR, JJ.
Sheo Bachan Choudhary S/o Gullu Choudhary – Appellant
Versus
The State of Bihar – Respondent
Criminal Appeal (DB) No. 55 of 1995
Decided On : 20-05-2022

Headnote:

Indian Penal Code, 1860 – Sections 302, 324 and 323 – Murder and hurt – Conviction and sentence – Accused persons had also sustained injuries in same incident – There is no possibility of they suffering injuries in some other incident in such a small gap of time nor such plea is coming from side of prosecution for explaining injuries on accused persons – Prosecution must establish its case by clear, cogent and convincing evidence – No matter how diabolic is crime, burden always remains on prosecution to prove guilt of accused beyond all reasonable doubt – Incident in question has given rise to registration of a case and counter case – Prosecution has not unfolded its case, rather it has indulged in suppression of genesis of case – Out of several injuries suffered by accused persons many injuries were on visible parts of their body – Feigning ignorance to these injuries by prosecution witnesses implies that prosecution witnesses have suppressed genesis of incident – All accused persons have suffered several bleeding injuries in very same incident – Because of non-explanation of injuries suffered by accused persons, case of prosecution has incurred a manifest defect – Whole unvarnished truth has not been unfolded by prosecution through its witnesses during course of trial thereby leaving this Court only to indulge in guess work or surmises to arrive at correct conclusion – Reasonable doubt in such situation lurks in judicial mind as to whether really accused persons were aggressor and they indulged in commission of murderous assault on prosecuting party or whether members of prosecuting party had indulged in assault on accused persons by using firearms and other weapons – Accused persons might have inflicted injuries on members of prosecuting party in exercise of their right of self defence – Witnesses are either related witnesses or highly interested in securing conviction of accused persons – Declarant was not in a fit state of mind to make dying declaration nor dying declaration is having any endorsement of Medical Officer certifying that deceased was in a fit state of mind at the time of making declaration – As such, Dying Declaration cannot be relied to base conviction for capital offence – Even evidence of Investigating Officer is also rendering prosecution case highly doubtful as Investigator does not seem to be an impartial officer – It will not be safe to convict accused persons on the basis of evidence adduced by prosecution in instant case and accused persons are certainly for benefit of doubt – Appellants/accused acquitted of offence alleged against them. (Paras 13, 14, 28, 30, 32, 33, 34, 38 and 39)

Criminal Procedure Code, 1973 – Section 323 – A case and counter case arising out of same incident should always be tried by same Court – Case and counter case is required to be tried in quick succession by very same Judge, who is not supposed to pronounce Judgment till hearing of both cases is concluded – Even one of such case is a Sessions triable case and another one is triable by Judicial Magistrate then also by resorting to provision of Section 323 of Cr.P.C., Judicial Magistrate is required to commit such Magistrate triable case to Sessions Court for trial with another case – Evidence in both such cases is required to be recorded separately and evidence in one case cannot be read while deciding another case – However, it is seen that instead of adopting this well established procedure, counter case was being tried separately by Court of Judicial Magistrate which ultimately ended in its withdrawal by prosecution – Solitary practice of trial of case and counter case as stated has practical reasons for its adoption – Such course of action eliminates danger of an accused being convicted before disposal of whole case by Court and prevents delivery of conflicting judgments upon similar facts because, for all practical purposes, case and counter case are conflicting and different versions of very same incident. (Para 16)

Criminal Law – Appreciation of evidence – Accused generally tried to conceal their minor and superficial injuries as those injuries become evidence of their involvement in incident – In such cases, non-explanation of injuries on accused may not affect prosecution case – Similarly, principle of doubting prosecution case if minor injuries on their persons goes unexplained, may not apply where evidence of prosecution is clear, cogent, independent and trustworthy. (Para 28)

Indian Penal Code, 1860 – Section 100 – Right to private defence – Section 100 of Indian Penal Code justifies killing of an assailant when an assault reasonably caused apprehension that grievous hurt will otherwise be consequence of such assault – Reasonable apprehension of death or genuine apprehension of grievous hurt justifies killing of assailant – This right of private defence is neither required to be pleaded nor is required to be proved beyond reasonable doubt – Burden can be discharged by preponderance of probability. (Para 32)