Allowed

Nageshwar Singh and Anr. v. The State Of Bihar

Patna HC14 Sept 2018CR. APP (SJ)/27/2013

Case brief

AI extract

What is this about?

In an appeal against conviction for an offence under Sections 307/34 IPC, the High Court of Patna acquitted the appellants. The Court held that the prosecution utterly failed to substantiate the case due to contradictions in witness testimony, lack of medical corroboration, absence of the Inspector of the Crime (I.O.), and absence of independent witnesses.

What did the court decide?

The impugned judgment and order of conviction and sentence set aside; appellants acquitted and discharged from bail bonds.

Nageshwar Singh and Anr. Vs The State Of Bihar — Criminal Trial and Appeal | Patna HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.27 of 2013

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Arising Out of PS. Case No.-109 Year-1991 Thana- DIDARGANJ District- Patna

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======================================================

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Nageshwar Singh, S/o Late Sagar Singh, Resident of VillageMahammadpur, P.O.+P.S.- Didarganj, District- Patna

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Chandeshwar Singh S/o Late Nanhak Singh, Resident of VillageMahammadpur, P.O.+ P.S.- Didarganj, District- Patna

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... ... Appellants

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The State of Bihar

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Versus ... ... Respondent

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====================================================== Appearance : For the Appellant/s : Mr. Sanjay Kumar Pandey, Advocate. For the State : Mr. Binod Bihari Singh, APP.

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======================================================

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CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL ORAL JUDGMENT Date : 14-09-2018

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Heard learned counsel for the appellants as well as

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learned APP for the State on this criminal appeal.

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2. This criminal appeal has been preferred against the Judgment and Order of conviction dated 12.11.2012 and order of sentence dated 16.11.2012 passed by 5^th Additional Sessions Judge, Patna City in Sessions Trial No. 1004 of 1992 arising out of Didarganj P.S. Case No. 109 of 1991, whereby the learned trial court acquitted Mahendra Singh, Ram Naresh Singh and Kapil Singh from all the charges levelled against them and convicted the accused namely, Nageshwar Singh and Chandeshwar Singh for the offence punishable under Section 307/ 34 of the Indian Penal Code and sentenced them to undergo

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Patna High Court CR. APP (SJ) No.27 of 2013 dt.14-09-2018 2/16

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S.I. for four years and also slapped them with the fine of Rs. 2000/- each and in case of default of payment of fine, to further undergo S.I. for six months under the aforesaid section.

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3. Factual matrix of the case is that Didarganj P.S. Case No. 109 of 1991 was instituted under Sections 147, 148, 149, 323, 324 and 307 of the Indian Penal Code and Section 27 of the Arms Act against the accused persons, namely, Nageshwar Singh, Baleshwar Singh, Mahendra Singh, Chandeshwar Singh, Ram Naresh Singh, Kapil Singh, Ram Ayodhya Singh, Krishna Singh and 8-10 other unnamed accused persons on the basis of the written report of Jay Ram Singh, Son of Babu Misri Singh with the allegation in succinct that on 21.09.1991 at around 2 PM, Nageshwar Singh, Baleshwar Singh and Mahendra Singh were rapping expletives to the wife of Parmeshwar Singh over blocking of flow of water from the public hand pump located near the house of Parmeshwar Singh. In the meantime, Shesh Narayan Singh, Prem Kumar Singh and Chandeshwar Singh arrived there and forbade them from slating. In the meantime, Nageshwar Singh, Baleshwar Singh and Mahendra Singh took out farsa from their house and Baleshwar Singh gave 3-4 farsa blow on the head of Shesh Narayan Singh. Nageshwar Singh assaulted on the head of Prem

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Patna High Court CR. APP (SJ) No.27 of 2013 dt.14-09-2018 3/16

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Kumar Singh by means of farsa while Chandeshwar Singh, Son of Nanhak Singh assaulted on the chest of Chandeshwar Singh, son of Jay Ram Singh by means of fasuli. Mahendra Singh, Kapil Singh, Ram Ayodhya Singh and Krishna Prasad were also armed with farsa. Ram Naresh Singh resorted firing by country made pistol. They intruded into the house of Parmeshwar Singh in his absence and took away his household articles. The family member of Parmeshwar Singh can disclose about the articles stolen from his house. Besides the aforesaid accused persons, 8- 10 unknown miscreants were also present at the place of occurrence.The bone of contention is said to be the animosity with Ram Ayodhya Singh and pendency of the case in the Court.

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4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against the accused persons namely Nageshwar Singh, Baleshwar Singh, Mahendra Singh, Chandeshwar Singh, Ram Naresh Singh, Kapil Singh, Ram Ayodhya Singh, Krishna Singh under Sections 147, 148, 149, 323, 324 and 307 of the Indian Penal Code and Section 27 of the Arms Act.

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5. On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the court of sessions

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and after commitment and on transfer finally the case came in the seisin of 5^th Additional Sessions Judge, Patna City for trial.

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6. Charge against the accused persons namely Nageshwar Singh, Baleshwar Singh, Mahendra Singh, Chandeshwar Singh, Ram Naresh Singh, Kapil Singh, Ram Ayodhya Singh, Krishna Singh was framed under Sections 307/34 and 450 of the Indian Penal Code and further charge against Ram Naresh Singh was framed under Section 27 of the Arms Act. Charges were read over and explained to them to which they pleaded not guilty and claimed to be tried. Accused Krishna Singh and Ram Ayodhya Singh passed away during the pendency of the trial, hence proceeding against them was dropped while accused Baleshwar Singh jumped out the trial and his trial was separated from the rest of the accused persons. As such only five persons faced the trial.

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7. During the course of trial in ocular evidence, the prosecution has examined altogether eight witnesses namely, Shesh Narayan Singh as PW-1, Prem Shankar Singh as PW-2, informant Jai Ram Singh as PW-3, Baijnath Singh as PW-4, Ramji Singh as PW-5, Jai Chandra Singh as PW-6, Chandeshwar Singh as PW-7 and Dr. Jitendra Nath Shrivastava as PW-8. Out of the aforesaid witnesses, PW-4 turned hostile.

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The prosecution has also filed and proved several documents by way of documentary evidence.

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8. Statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. Defence did not adduce either any ocular evidence or documentary evidence in buttress of its case.

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9. After hearing the parties and perusing the record, the learned trial court passed the aforesaid Judgment and Order of conviction and sentence as detailed in the earlier paragraph.

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10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convicts namely Nageshwar Singh and Chandeshwar Singh have preferred this Criminal Appeal.

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11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellants beyond all reasonable doubts or not.

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12. It is submitted by learned counsel for the appellants that out of the seven material witnesses examined by the prosecution, PW-4 has turned hostile and PWs-6 and 7 have not supported the prosecution case and they have vented

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ignorance of the occurrence while PW-3 happens to be informant, PWs-1 and 2 cousin brothers of the informant and PW-7 son of the informant. All the aforesaid four witnesses i.e. PW-1, PW-2 , PW-3 and PW-7 are family members and they are highly interested witnesses of the case and none of the independent witness came forward in corroboration of the prosecution case. It is further submitted that there is vital contradiction between the prosecution case and the statement of the informant and between testimony of the witnesses inter se regarding weapon used in the assault, part of the person selected for assault and place of occurrence. I.O. has not been examined by the prosecution to establish the place of occurrence and in view of the aforesaid vital contradiction though PWs-1, 2 and 7 happen to be injured of the case but their testimony does not appear to be worth credence and reliable. Moreover, aforesaid ocular evidence of the prosecution also does not stand corroborated by the medical evidence. It is further submitted that as per the F.I.R. and witnesses’ account there is animosity between the prosecution party and the accused persons and prosecution has falsely implicated the appellants in this case due to aforesaid animosity. It is further submitted that as per the informant, the F.I.R. was lodged on the basis of his statement

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recorded before the police but PW-1 and PW-2 have stated in their respective examination-in-chief that their statements were recorded at the Police Station first and the F.I.R. was lodged on the basis of their statement. The statement of either PW-1 or PW-2 which must have been the first information report has not been brought on record by the prosecution and hence the aforesaid aspect of the case and the statement of the witnesses creates serious doubt about the prosecution case. As per the witnesses account, blood was fallen on the attire of the victims and at the place of occurrence, but I.O. has not been examined by the prosecution and for the non-examination of the I.O. great prejudice is caused to the defence as objective evidence could not be brought on record. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case beyond all reasonable doubts by adducing consistent, trustworthy, reliable and worth credence evidence. Hence the aforesaid Judgment and Order of conviction and sentence passed by the learned Trial Court is liable to be set aside and the appellants are entitled to be acquitted.

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13. On the other hand, learned APP advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence submitted that the informant and three

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injured witnesses have unanimously supported the prosecution case by giving their consistent evidence regarding the occurrence and the aforesaid ocular evidence also stands corroborated by medical evidence and the learned trial court correctly appreciating the facts and evidence available on record has rightly passed the aforesaid Judgment and Order of conviction and sentence which is liable to be upheld and this appeal is shorn of merit and is liable to be dismissed.

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14. From perusal of the record, it appears that F.I.R. has been lodged on the basis of the written report of Jay Ram Singh but from the perusal of the testimony of PW-1 Shesh Narayan Singh and PW-2 Prem Shankar Singh, it appears that PW-1 has stated in Para-2 of his examination-in-chief that he had given statement at the Police Station. In Para-4 of his crossexamination, he has further stated that he lodged the case at the Police Station against Baleshwar Singh, Chandeshwar Singh, Nageshwar Singh, Mahendra Singh, Ram Naresh Singh, Kapil Singh and Ram Ayodhya Singh and PW-2 Prem Shankar Singh has stated in Para-16 of his cross-examination that he arrived at Police Station at around 2:30 to 3 PM, the police recorded his statement regarding the occurrence at first and on the basis of his statement, case was lodged. Shesh Narayan Singh was

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senseless by that time. The aforesaid aspect of the case and the witnesses’ account creates serious doubt about the prosecution case as the FIR has been lodged on the basis of the written report of Jay Ram Singh (PW-3) but Prem Shankar Singh (PW2) has stated that the police recorded his statement regarding the occurrence at first and on the basis of his statement, the case was lodged while PW-1 Shesh Narayan Singh was senseless by that time and PW-1 has stated that his statement was recorded at the Police Station and the case was lodged on the basis of his statement. Moreover, the aforesaid statement of PW-1 and PW-2 either of which must have been F.I.R. have not been brought on record by the prosecution which also creates serious doubt about the prosecution case.

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15. From perusal of the written report of the informant, it appears that the informant in his written report has stated that Baleshwar Singh gave 3-4 farsa blow on the head of Shesh Narayan Singh, Nageshwar Singh gave one farsa blow on the head of Prem Kumar Singh and Chandeshwar Singh, Son of Nanhak Singh assaulted on the chest of Chandeshwar Singh, Son of informant Jay Ram Singh by means of fasuli. But from perusal of the testimony of the informant, it appears that in Para1 of his examination-in-chief he has stated that he did not

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witness as to who assaulted by means of fasuli. Aforesaid statement of the informant rules him out to be the eye witness of the occurrence as as per the written report aforesaid occurrence took place in the same transaction and he witnessed the entire occurrence but as per his aforesaid account, he had not witnessed the aforesaid assault by means of fasuli.

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16. Though PW-1, PW-2 and PW-7 happen to be injured of the case, but there is vital contradiction between the prosecution case and their testimonies and between the testimony of the witnesses inter se regarding the weapon used in the assault, part of the body selected for assault, manner of occurrence, assault, etc. as as per the prosecution case Baleshwar Singh gave 3-4 farsa blow on the head of Shesh Narayan Singh, Nageshwar Singh gave one farsa blow on the head of Prem Kumar Singh and Chandeshwar Singh, Son of Nanhak Singh assaulted on the chest of Chandeshwar Singh, Son of informant Jay Ram Singh by means of fasuli, but in quite contradiction to the aforesaid prosecution case, PW-1 Shesh Narayan Singh has stated in Para-1 of his examination-in-chief that Baleshwar Singh started assaulting him by means of farsa but he escaped three assault while sustained fourth farsa blow on his head. Nageshwar assaulted on the chest of Chandeshwar

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Patna High Court CR. APP (SJ) No.27 of 2013 dt.14-09-2018 11/16

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Singh, son of Jay Ram Singh by means of fasuli. Moreover he has not supported the occurrence of assault by Nageshwar Singh upon Prem Kumar Singh by means of farsa. PW-2 Prem Shankar Singh has stated in para-1 of his examination-in-chief that Nageshwar Singh assaulted on his head, left hand and leg by means of farsa while Chandeshwar Singh S/o Nanhak Singh assaulted on the neck of Chandeshwar Singh S/o Jay Ram Singh by means of fasuli and Baleshwar Singh gave only one farsa blow to Shesh Narayan Singh. PW-7 Chandeshwar Singh has stated in Para-2 of his examination-in-chief that Nageshwar assaulted on his neck by means of fasuli and Chandeshwar Singh assaulted on the head and hand of Prem Shankar Singh by means of garasa and Baleshwar assaulted on the head of Shesh Narayan Singh by means of Lathi.

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17. As per the prosecution case, the place of occurrence is at the door of Parmeshwar Singh while PW-7 has changed the place of occurrence as in Para-1 of his examinationin-chief he has stated that when he arrived at the door of Nageshwar Singh, the occurrence took place there while as per the account of PW-2 as given in Para-10 of his crossexamination, the hand pump is located near the house of Parmeshwar Singh and house of Nageshwar Singh is located at

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Patna High Court CR. APP (SJ) No.27 of 2013 dt.14-09-2018 12/16

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20 feet from the hand pump. Moreover, PW-7 has also changed the time of occurrence as per the prosecution case the occurrence is of 21.09.1991 at 2:00 PM, but in Para-1 of his examination-in-chief he has stated that the occurrence is of 11:00 AM on the date of occurrence. Thus, in view of the aforesaid aspects of the case, it appears that though the aforesaid three witnesses happen to be injured witnesses but their testimonies are full of contradiction regarding occurrence, manner of occurrence, assault, assailant, weapon used in the assault, part of the body selected for assault, place of occurrence and time of occurrence between the prosecution case and their testimonies and their testimonies inter se and the aforesaid inconsistent testimonies of the said witnesses do not inspire my confidence to hold conviction relying upon their aforesaid testimonies.

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18. From perusal of the medical evidence, it appears that the aforesaid prosecution case also does not stand corroborated by the medical evidence. As as per the prosecution case Prem Kumar Singh was given one farsa blow on his head by Nageshwar Singh while the doctor has found four injuries on the person of the aforesaid victim i.e. three sharp cut injury on his left arm and middle head and one swelling on his ankle

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likewise as per the prosecution case Chandeshwar Singh Son of Jay Ram Singh was given one fasuli blow on his chest by Chandeshwar Singh, son of Nanhak Singh but doctor has found one sharp cut injury on the left side of his neck and one sharp cut injury on his right little finger. All the aforesaid injuries have been opined by the doctor as simple in nature.

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19. As per the account of PW-7 Chandeshwar Singh as given by him in Para-9 of his cross-examination, Ram Vinay Singh, Ravi Shankar Singh, Rajnikant Singh and Raghu Singh were intervening the occurrence and as per the account of PW-3 as given in Para-6 of his cross-examination, 40-50 persons had congregated at the place of occurrence during the course of occurrence including Ramesh Singh, Ramji Singh, Ram Kishun Singh, Shivji Singh, Pyare Singh, Umesh Singh, Jay Nandan Singh, Ram Ishwar Singh and Munarik Singh but barring Ramji Singh (PW-5), who has vented his ignorance of the occurrence none of the aforesaid witnesses who happen to be independent witnesses of the occurrence has been examined by the prosecution and no plausible and convincing reason has been assigned by the prosecution for their non-examination. Hence adverse inference is drawn against the prosecution. Thus the aforesaid inconsistent ocular evidence of the prosecution

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does not stand corroborated by any independent witness as well.

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20. From perusal of the record, it appears that PW1 in Para-7 of his cross-examination has stated that blood was fallen at the place of occurrence. PW-3 has stated in Para-7 of his cross-examination that injury of the victim was bleeding and blood was fallen on the attire of the victim, the attire was stained with the blood and the injured had rushed to the hospital in the blood stained attire, but the I.O. has not been examined by the prosecution and due to non-examination of the I.O., great prejudice appears to have been caused to the defence as the aforesaid objective evidence could not be brought on record.

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21. As per the prosecution case itself, there is animosity between the parties as the informant in his written report has stated that there is a previous animosity with the accused Ram Ayodhya Singh and the case is pending in the court. PW-2 has stated in Para-5 of his cross-examination that the accused Ram Naresh Singh had lodged the case under Section 144 Cr.P.C. against him, Jay Ram Singh, Munna Singh and Shri Bhagwan. PW-3 has stated in Para-8 of his crossexamination that there was a case under Section 144 Cr.P.C. regarding Nala in which Ram Naresh was the first party and Munna was the second party. PW-7 has stated in Para-8 of his

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cross-examination that his father (informant Jay Ram Singh) had lodged a case under Arms Act against the accused persons and the accused persons were acquitted in that case. The aforesaid account of witnesses also indicates that there is animosity between the parties. Animosity cuts both the edges. But in view of the aforesaid inconsistent ocular evidence of the prosecution, non-corroboration of the ocular evidence by the medical evidence, non-examination of any independent witness of the occurrence, vital contradiction regarding the first information report, informant Jay Ram Singh not being the eye witness of the occurrence and not bringing on the record the objective evidence by the I.O., false implication of the appellants in the case due to the aforesaid animosity cannot be ruled out.

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22. In the facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case beyond all reasonable doubts by adducing consistent, trustworthy and reliable ocular and documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned trial court is set aside and the appellants are acquitted from the charges levelled against them. As the appellants are on bail, they

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are discharged from the liability of their bail bonds. Accordingly, this appeal is allowed.

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(Prakash Chandra Jaiswal, J)

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mantreshwar/-

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AFR/NAFR	A.F.R.
CAV DATE	N.A.
Uploading Date	18.09.2018
Transmission Date	18.09.2018

Nageshwar Singh and Anr. v. The State Of Bihar

Case brief

What is this about?

What did the court decide?

Nageshwar Singh and Anr. v. The State Of Bihar

Case brief

What is this about?

What did the court decide?

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