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IN THE HIGH COURT OF JUDICATURE AT PATNA
RAJEEV RANJAN PRASAD and JITENDRA KUMAR, JJ.
Criminal Appeal (DB) No. 905 of 2018
(29.3.2024)
Md. Dabir & Anr. ... Appellants
vs.
State of Bihar ... Respondent
Criminal Trial – Evidence of a child witness – reliability – the Hon'ble Supreme Court has held that in the event the evidence a child witness is not being supported or corroborated and there being possibility of the witness being tutored, it will not be safe to base the conviction only on the testimony of the child witness – in the present case, the very presence of P.W. 5 (minor son of the deceased) with the deceased at the time of occurrence is highly doubtful – his presence has neither been disclosed in the fardbeyan of P.W. 4 (father nor he disclosed this to the I.O. (P.W. 13) in course of his further statement – for all these reasons the evidence of child witness (P.W. 5) is not reliable – it is wholly unreliable. (Paras 36 & 37)
Indian Penal Code, 1860 – Sections 147, 148 and 302/149 – Accused persons including the appellants, variously armed with dabiya, farsa and lathi, alleged to have assaulted the deceased resulting in his death – the prosecution witnesses on whose evidence the learned Trial Court has based the conviction of the appellants are closely related and interested witnesses – prior land dispute between the parties – no independent witness in this case and the presence of the informant (P.W. 4), the wife (P.W. 2), Child Witness (P.W. 5) and the sister's son of the deceased (P.W. 3) as an eye witness to the occurrence have been shown by the prosecution at a belated stage only – in the fardbeyan, the informant has not named any eye witness to the occurrence – the distance between place of occurrence and the house of the deceased is said to be half kilometer and only after hearing the hulla, the family members witnesses rushed to the place of occurrence – the informant has gone on to say in his cross-examination that the people came after murder – the body was taken out from a ditch and said to have been to PHC but neither any medical report has been exhibited nor any Doctor from the PHC has been examined by the prosecution – crime number/case number with date and time not mentioned in the inquest report and the post mortem report which creates doubt as to whether the F.I.R. had been registered at the given time if the FIR had been registered, it not being made available to the concerned Police Officer preparing the inquest report and to the Sadar Hospital, where the post mortem was conducted is fatal to the prosecution – prosecution failed to prove its case beyond the shadow of reasonable doubts – impugned judgment and order set aside – appeal allowed – appellant no. 1 is discharged from the liability of his bail bonds – appellant no. 2 directed to be released forthwith. (Paras 39 to 42)
(2007)15 SCC 294, (2001)2 SCC 205, AIR 2007 SC 1299, (2019)20 SCC 293, 2023 SCC Online SC 777, (1994)5 SCC 188 para 12, 1993(1) PLJR 236, (2011)7 SCC 421 – Referred.
Rajeev Ranjan Prasad, J. – This appeal arises out of the judgment of conviction dated 26.06.2018 and the order of sentence dated 06.07.2018 passed by learned Additional District and Sessions Judge-II, Madhepura (hereinafter referred to as the ‘learned trial court’) in Sessions Trial No. 29/2014/C.I.S.-90/2014 in connection with Kumarkhand P.S. Case No. 84 of 2013, G.R. No. 1281 of 2013.
2. By the judgment under appeal (hereinafter referred to as the ‘impugned judgment’), the learned trial court has held both the appellants guilty under Sections 147, 148 and 302/149 of the Indian Penal Code (in short ‘IPC’) and by the order of sentence, the appellants have been ordered to suffer life imprisonment for the offence under Sections 302/149 IPC with a fine of Rs. 1 lakh each. For the offence under Section 147 IPC, the learned trial court has imposed a sentence of two years simple imprisonment and Rs. 1,000/- as fine and for the offence under Section 148 IPC, the appellants have to suffer three years imprisonment with a fine of Rs. 2,000/- each. In case of nonpayment of fine of Rs. 1 lakh, the appellants shall be liable to suffer two years of additional imprisonment and on non-payment of the fine of Rs. 1,000/- and Rs. 2,000/-, as imposed by the learned trial court, the appellants shall undergo an additional imprisonment of three months. All the sentences are to run concurrently.
Prosecution case
3. The prosecution case is based on the fardbeyan of Atabul Miya (PW-4), who is the father of the deceased. In his fardbeyan recorded by R. N. Pandit, S.I. (Sub-Inspector) of Kumarkhand Police Station in the district of Madhepura on 16.06.2013 at 6:45 am at Primary Health Centre (P.H.C.), Kumarkhand, the informant (PW-4) alleged that on 16.06.2013 (Sunday) at about 6:00 am (morning hour), his son Matiur Rahman (the deceased) had gone to the kirana shop of Debu Shah in Jaduapatti Market. He alleged that the accused persons, namely, (i) Rasul Miya, son of late Fida Miya, (ii) Md. Jamal Miya, (iii) Md. Dabir, (iv) Md. Jabbar, (v) Md. Azad, sons of late Maqbul Miya, (vi) Bipin Sah, Son of Ram Kumar Sah and (vii) Md. Saddam Miya, Son of Md. Rasul Miya, etc., all residents of Village-Jaduapatti, P.S.-Kumarkhand armed with dabiya and farsa caught hold of his son Matiur Rahman and with an intention to kill him, Rasul Miya assaulted him by dabiya, Md. Jabbar Miya assaulted on head by farsa and chopped off both the legs. He further alleged that Md. Jamal Miya, Dabir Miya, Bipin Sah and Md. Saddam Miya all assaulted his son by lathi here and there and they injured his son by assault. On hulla, people from the village came then the accused persons fled away. According to him, the cause of occurrence is a prior land dispute. The informant alleged that the named accused persons had assaulted and injured his son Matiur Rahman with an intention to kill. The fardbeyan (Exhibit ‘2’) resulted in lodging of a formal First Information Report (FIR) giving rise to Kumarkhand P.S. Case No. 84 of 2013 dated 16.06.2013 at 7.30 am (morning hour). The fardbeyan has been marked as Exhibit ‘2’.
4. In the present appeal, Md. Dabir is appellant no. 1 whereas Md. Jamal @ Md. Jamal Mian @ Md. Jamala is appellant no. 2. The records would show that they were charge-sheeted vide Charge-sheet No. 147 of 2013. The prosecution has proved the said charge-sheet as Exhibit ‘4’. The learned Magistrate took cognizance of the offences under Sections 147, 148, 120B and 302/149 IPC. Since the offences under Sections 302/149 were triable by the court of Sessions, the learned Magistrate committed the records to the court of Sessions where it was registered as Sessions Trial No. 29 of 2014. While submitting charge-sheet against these two appellants, the investigation against the other accused was kept pending. Later on, two more charge-sheets being Charge-sheet No. 120 of 2014 and Charge-sheet No. 194 of 2014 were submitted against accused namely Md. Jabbar and Rasul Miya. In their case also, cog
Convictions based on inconsistent witness testimony and insufficient evidence cannot stand; reliance on child witnesses requires careful scrutiny and corroboration.
As the medical evidence does not support the manner of assault on the victim. It also lends support to the defence case, such a wound could not be possible looking to the position of the victim & per....
The prosecution must prove its case beyond reasonable doubt; lack of credible evidence and inconsistencies in witness testimonies can lead to acquittal.
Murder – Delay in lodging F.I.R in respect of commission of murder adversely affects case of prosecution.
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