Patna High Court: Birendra Kumar Cav, J., reversed the Trial Court’s conviction order, whereby, the accused was awarded ten years rigorous imprisonment for an attempt at murder. The Bench expressed,
“On the very same evidence, eleven persons have been acquitted and in absence of any material to substantiate or reason disclosed in the impugned judgment that case of the appellant stood on different and graver footing, the conviction of the appellant is not sustainable.”
Facts of the Case
Altogether twelve accused persons faced Trial in Sessions Court for offences under Sections 147, 148, 447/149, 307/149 and 307 Penal Code, 1860 as well as under Section 27 of the Arms Act. The eleven of them were acquitted of all the charges on the very same evidence and the sole appellant was convicted under Section 307 IPC and 27 of the Arms Act by the impugned judgment of conviction. The appellant was awarded ten years rigorous imprisonment and a fine of 50 thousand Rupees for offence under Section 307 IPC. For offence under Section 27 of the Arms Act, three years rigorous imprisonment was awarded along with a fine of rupees one thousand.
The prosecution case was that on 11-06-2006 voting for the Panchayat election was going on in village Laluadih, Harnaut District Nalanda. The informant was sitting at his Dalan along with Shiv Shankar Singh (PW-2), Sudhir Singh (PW-5), Murli Manohar Singh (PW-1) and other villagers. At about 11:30 A.M., Mukhiya candidate Deshraj Singh Chauhan along with his supporters (the twelve accused persons who faced trial) variously armed came to the Dalan and exhorted others to kill Mukhiya i.e. PW-4. On that the appellant Babban Singh fired causing injury at the left eye of Shiv Shankar Singh (PW-2).
Stand Taken by the Appellant
Gajendra Prasad Singh (PW-4) deposed that it was co-accused Pawan Singh (since acquitted) who had caused injury to Shiv Shankar Singh at the left eye. The appellant contended that PW-4 Gajendra Prasad Singh who was informant of this case was not a hostile witness and that he had deposed that it was co-accused Pawan Singh who caused firearm injury at the left eye of Shiv Shankar Singh. It was submitted by the appellant that the statement of PW-4 could not be taken as slip of tongue because Pawan Singh was also an accused in this case. Thus two conflicting evidence was on the record; one was of PW-4 that the injury was caused by co-accused Pawan Singh and rest witnesses deposed that the injury was caused by the appellant. The conflicting evidence aforesaid made the prosecution case doubtful. The appellant argued that on the very same evidence, eleven accused persons were acquitted by the same judgment without distinguishing how the case of the appellant was on separate footing to that of acquitted accused persons. It was further argued that the law is well settled that if two views are possible on the same evidence, the views in favour of the accused should be preferred.
The appellant pointed out before the Court the statement of PW-2 Shiv Shankar Singh, the injured witness who deposed that when the firing started, they all started fleeing. The appellant argued, in that situation, it was difficult to see as to whose shot had caused the injury when several persons were allegedly indulged in firing.
Findings of the Court
Noticing that there was no dispute that PW-4, Gajendra Prasad Singh was not a hostile witness and that even after the conclusion of the prosecution evidence, Gajendra Prasad Singh did not file any application that his statement was a slip of tongue and in fact the appellant had caused injury to Shiv Shankar Singh. Relying on the decision in Raja Ram v. State of Rajasthan, (2005) 5 SCC 272, the Supreme Court had held that, “if a witness is not declared hostile by the prosecution, the defence can rely upon the evidence of such witness and it would be binding on the prosecution.”
Thus, opining that there was serious doubt on the identity of the assailant of Shiv Shankar Singh and that on the very same evidence, eleven persons had been acquitted, the Bench held that in absence of any material to substantiate or reason disclosed in the impugned judgment that case of the appellant stood on different and graver footing, the conviction of the appellant was not sustainable. The Bench remarked,
“The Trial Judge failed to consider that witness Shiv Shankar Singh has deposed that he sustained injury while fleeing and there was no definite evidence from any prosecution witnesses of the occurrence that the witnesses including Shiv Shankar Singh were fleeing facing the firing.”
Hence, finding it doubtful that anyone would have seen the real person who had caused firearm injury, the Bench held that the conviction of the appellant was not sustainable in law. Accordingly, the impugned judgment of conviction and order of sentence were set aside. The appellant was acquitted.[Babban Singh v. State of Bihar, 2021 SCC OnLine Pat 1304, decided on 02-07-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Court by:
For the Appellant/s: Mr. Krishna Prasad Singh, Sr. Advocate
Mr. Davendra Kumar Pandey, Advocate
For the State: Mr. Binod Bihari Singh, A.P.P.
For the Injured Mr. Rajesh Kumar Singh, Advocate