Govt. Appeal (DB) No.55 of 1988 With Criminal Revision No.914 of 1988 ___ (Against the judgment and order dated 18.6.1988 passed by 2nd Additional District & Sessions Judge, Begusarai in S.T.No.107 of 1985/ 4 of 1988) ___ The State of Bihar … Appellant (in Govt.Appeal) Versus 1.Md.Akhtar @ Kari 2.Md.Jamal @ Fakira 3.Md.Sanjat 4.Md.Jan Alam … Respondents With Md.Abu Daud … Petitioner (in Cr.Revision 914 of 1983) Versus 1.Md.Akhtar @ Kari 2.Md.Jamal @ Fakira 3.Md.Sanjat 4.Md.Jan Alam …Opposite parties For the Appellant : Mr.Lala Kailash Bihari Prasad,Sr.Advocate (in Govt.Appeal) For the Respondents : Mr.Shakeel Ahmad Khan,Sr.Advocate (in Govt.Appeal & Mr.Abul Kalam,Advocate for O.Ps in Cr.Revision) P r e s e n t THE HON’BLE MR.JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH The instant Government appeal is directed against the judgment dated 18.6.1988, passed by the learned 2nd Additional District & Sessions Judge, Begusarai, in S.T.No.107 of 1985/4 of 1988, whereby and where under he has acquitted Opposite Parties 1, 2 and 3, namely, Md.Akhtar @ Md. Kari, Md.Jamal @ Fakira and Md.Sanjat, charged under sections 148 and 302 read with section 149 of the Penal Code. SK Katriar & SP Singh,JJ. 2 A criminal revision was also filed at the instance of the informant to the same effect which has been tagged with the instant Government Appeal. 2. The prosecution case, as made out in the Fardbeyan of Md.Abu Daud (P.W.6) of village Saidpur, P.S. Matihani, District Begusarai, recorded on 5.1.1984, at 9 P.M., by Shri B. Das, Officer Incharge Matihani P.S., Village Saidpur, in short is as follows: i) The informant stated that he along with his younger brother Md.Nadir Sah @ Jumma went to the place of co-villager Md.Mobin (P.W.4) to collect his dues of boring which was used by him for irrigating his field. As the informant and his brother were basking by the Ghura at Mobin‟s Darwaza, 10-11 persons forming an unlawful assembly came near them. The informant stated that, in the light of the Ghura, the lantern which was hanging in the Oriyani,and in light of the torch which he was carrying, he identified 7 out of 11 persons, namely, Md.Chamru @ Sahadat armed with gun, Noor Alam armed with rifle, Md.Jan Alam (O.P.No.4) armed with gun, Md.Kari @ Akhtar (O.P.1), Md.Samad, Md.Sanjat (O.P.No.3) and Md.Fakira @ Jamal (O.P.No.2), all residents of Village Saidpur, P.S. Matihani. It is further alleged that Md.Kari, Md.Samad and Md.Fakira were also armed with fire arms. It is alleged that Md.Chamru @ Sahadat while warning the informant and others not to flee away, exhorted his associates to open fire whereupon Md.Sanjat fired from his pistol which did not hit any one. ii) The informant, his brother (deceased), and Mobin fled for their lives and the accused persons chased them. The informant after fleeing some distance hid himself by the side of Simal tree from where he saw his brother Md.Nadir Sah @ Jumma, being surrounded by the accused persons near the southern wall of one Samshul‟s house. The informant‟s brother Jumma shouted for help. In the meantime, Chamru, Noor Alam (both not before us) and Md. Jan Alam, fired instantly from their respective guns and rifles at his brother. There was a loud hulla at that time. iii) The accused persons fled towards the village where after the informant (P.W.6) and Mobin (P.W.4) came near his brother who was lying dead. He found lot of blood 3 near the dead body having sustained three fire-arm injuries on his cheek, right chin, and chest. On hulla, Md.Adil (P.W.2), Ataur Rahman (P.W.3) and others came running to whom the informant narrated the entire facts. Md.Adil and Ataur Rahman informed that they had seen and recognized the accused persons fleeing with rifle and pistol. The informant alleged that the accused committed the occurrence because of old enmity persisting between the parties. 3. On the basis of aforesaid fardbeyan (Ext.1/3) of P.W.6, a formal F.I.R.(Ext.11) was drawn at 11.45 P.M. in the same night (5.1.1984) and was registered as Matihani P.S.Case No.1 of 1984. After investigation, the Police submitted charge sheet against the accused persons. Thereafter cognizance was taken and the case was committed to the court of sessions.Some of the accused persons absconded in the trial and the case of the Opposite parties were separated and their trial ensued. As stated earlier, charge under sections 148 and 302 read with section 149 of the Penal Code was framed against Opposite Parties 1, 2 and 3, and charge under section 148/302 of the Penal Code was framed against Opposite party no.4. All the accused pleaded not guilty of not committing any such offence and claimed to be tried. 4. The prosecution examined altogether 11 witnesses in support of its case whereas the defence also examined four witnesses. Md. Soyeb (P.W.1) is a hearsay witness, and his evidence is to the effect that he learnt the name of the accused persons from the informant (P.W.6). This witness is brother-in-law (SALA) of the deceased Nadir Sah @ Jumma. He stated that at the time of occurrence he was at the residence of his brother-in-law Jumma where he heard the sound of firing at about 6.30 P.M. On hearing the sound of firing, he ran in the direction of firing and reached near the house of Samshul where informant narrated the occurrence and spelt the name of the accused persons. 5. Md.Adil (P.W. 2) is a F.I.R. witness and is a co-villager of the informant. He stated that around 6.30 P.M., he had gone to bring milk from the residence of one Azim which is only 20 to 25 hands away from the place of occurrence .While he was at the residence of Azim, he heard hulla of a person desperately crying for help soon 4 followed by firing sound. In the flash of torch light he saw the accused persons who were variously armed fleeing away with weapons in which he recognized the seven accused persons whose names have already been spelt by the informant in his fardbeyan, as noted earlier. 6. Md.Ataur Rahman @ Saheb (P.W.3) has stated that he had gone to Ghasatpur Tola for arranging some labourers and as soon as he reached the house of Samshul, he heard the sound of firing. He turned his torch and in its light he saw Abu Daud, Mobin, and Nadir Sah @ Jumma, being chased by 10-11 accused persons. He recognized all the seven accused persons in his torchlight. He stated that Nadir Sah @ Jumma on being surrounded shouted for help “JAAN MARISH HO‟, soon thereafter the accused Jan Alam(O.P.4), Md.Chamru @ Sahadat, and Noor Alam repeatedly fired at him with their respective gun and rifle killing him instantaneously. He found the deceased clad in blood, particularly at cheek, right chin and chest. This witness as such claimed to have seen the major portion of occurrence, right from chasing P.W.4, P.W.6 and the deceased to the killing of the latter (Jumma) at Shamshul‟s southern wall. He had signed the fardbeyan of Abu Daud as a witness marked Ext.1/1. 7. Md. Mobin (P.W. 4) is also a co-villager of the informant and is a F.I.R. witness. He deposed that on 5.1.1984, at about 6.30 P.M., he was basking by the Ghura along with the informant Md.Daud (P.W.6) and the deceased, and a lantern was also hanging by the Oriyani. He stated that in the aforesaid light emanating from Ghura as well as the lantern, he saw 10-11 persons coming near them. He identified 7 of the accused persons who were all co-villagers as named in the fardbeyan. He fully supported the prosecution case narrated by the informant in his fardbeyan. He stated that co-accused, Md.Chamru, warned that no body should move and thereafter accused Md.Sanjat fired which did not hit any body. He further stated that he along with the informant and his brother fled for their lives but they were chased by all the accused persons who were fully armed with fire arms. He stated that ultimately deceased Nadir Sah @ Jumma was surrounded by the accused persons near the southern wall of Shamsul.He further stated that accused Jan Alam, Md.Chamru, and 5 Noor Alam fired at Jumma who succumbed to the injuries. He stated that he saw the occurrence from Bansbhita (a small cluster of 5 to 6 Bans trees) which was 5 yards away from the place of occurrence. He stated that deceased Jumma on account of injuries had fallen dead on Aam Rasta very close to the southern wall of Shamsul having injuries on cheek, right chin and chest. 8. P.W.5 is Dr. Madan Prasad Gupta who conducted autopsy on the dead body of the deceased on 6.1.1984, at 8 A.M., and prepared post mortem report which has been marked Ext.2. He stated that the occurrence took place within 24 hours and the deceased sustained two injuries. 9. P.W.6 is the informant Abu Daud who in his deposition corroborated the prosecution case. He stated that on 5.1.1984, at about 6.30 P.M., he along with his deceased brother Nadir Sah @ Jumma and Md. Mobin (P.W.4) were basking by the Ghura at the latter‟s Darwaza which was burning brightly. He stated that he had a torch and a lantern was also hanging in the Oriyani emitting sufficient light. He stated that he had gone to Mobin‟s place to collect his irrigational dues, and in the aforesaid light he saw10-11 persons all armed with fire arms coming near them. He identified 7 out of 11 persons as named in the fardbeyan who were all co-villagers. He stated that co-accused Md.Chamru warned that no body should move, whereafter accused Md.Sanjat fired which did not hit any one. He further stated that all of them fled to save their lives but the accused persons who seemed in relentless mood and chased them. He stated that he hid himself by the side of Simal tree whereas the accused persons chased his brother Nadir Sah @ Jumma who was running towards Samshul‟s house. However, the accused persons surrounded him near the southern wall of Samshul. The deceased Nadir Sah @ Jumma cried for help but nonetheless the accused Jan Alam, Noor Alam and Md.Chamru one after the other fired at his brother as a result of which he fell down and succumbed to the injuries. The accused persons having accomplished their common motive, fled away towards the village. He stated that the deceased sustained three injuries on his cheek, right chin and chest. He also found blood having fallen at the place of occurrence. He stated that quite a few 6 litigations are going on with the accused persons from before. He further stated that even after the occurrence, the accused persons attempted on his life for which he lodged a case under sections 307 of the Penal Code as well as section 27 of the Arms Act on 17.4.1988. He stated that on account of the occurrence, his leg got damaged and injured. He further deposed that Saidpur Basti is only 200 yards away from the place of occurrence. He stated that Simal trees from where he was witnessing the occurrence was 15-16 hands from the place of occurrence and Azim‟s house was 5 hands away from the Simal tree. 10. L.P.Singh (P.W.7), and Md.Hasan (P.W.8), are formal witnesses. P.W.7 submitted charge sheet, whereas P.W.8 is a witness to the inquest report as well as seizure of lantern. His signature on carbon copy of Inquest Report and on seizure list pertaining to lantern are marked as Ext.1/4 and Ext.1/6. 11. Bishram Das (P.W.9) is the Investigating Officer of the case. He stated that he was Officer-In-charge of Matihani P.S. on 5.1.1984. At about 7.45 P.M., some people informed at the P.S. that one person has been killed in village Saidpur. After making station diary entry no.65, dated 5.1.1984 (Ext.3), to this effect, he proceeded to the place of occurrence which was 6 K.M.s away, along with Sub Inspector J.N.Singh and other police constables on foot. On reaching the place of occurrence, he recorded the fardbeyan of the informant, Abu Daud (P.W.6), who put his thumb impression as being his true version and the same was also signed by Sub Inspector J.N. Singh, which was marked as Ext.1/3 and Ext.4 respectively. He stated that he found the injuries on the person of the deceased and at his dictation the inquest report was prepared by Sub Inspector J.N. Singh which was signed by both of them as well as seizure list witness, Md. Hasan. Thereafter he took subsequent statement of the informant (P.W.6).He stated in his deposition that he found 5-6 bullet marks on the southern wall of Samshul‟s house where the deceased was attacked. He stated that he went to the place of Mobin (P.W.4) also, where he found the Ghura burning and the lantern still lighted. He found sufficient light emanating from the lantern which on being checked was found to contain sufficient oil. He stated in paragraph 7 of his 7 deposition that Aam Rasta around which the deceased was shot at was trampled and the near around earth (Mitti) was also wet. He stated in para 8 that Saidpur Basti was 200 yards away from the place of occurrence. He also noticed that the first place of occurrence, i.e. Mobin‟s house, was 30 yards from the second place of occurrence (Samshul‟s southern wall where the deceased Jumma was killed). He stated that only a field(Maidan) intervened between Mobin‟s house and the place of occurrence. He further deposed that Bansbhita from where Md. Mobin (P.W.4) saw the occurrence was only 4-5 yards away from the place of occurrence, and the Simal tree from where the informant (P.W.6) witnessed the occurrence was 15-16 yards from the place of occurrence. He further deposed that document would show that the parties are on litigating terms. The deposition of I.O. corroborated the prosecution case as well as the distance of the various places from P.O. as stated by the informant (P.W.6) and Md. Mobin (P.W.4). 12. Bandan Sahu, A.S.I. (P.W.10) is a formal witness and he has made entry of the instant Matihani P.S. Case No.1/84 in G.R. Register at Sl. No.25/84, marked Ext.10. Vijay Bahadur Singh (P.W.11) is a constable and is a formal witness. He has proved the fardbeyan (Ext.11) which was in the hand-writing of Sub Inspector J.N.Singh. 13. The defence also examined four witnesses. Md. Soyeb (D.W.1) deposed to the effect that Kabir and Suleman are cousins. Md. Hussain (D.W.2) stated that Kabir‟s daughter was married to the deceased Nadir Sah @ Jumma, and Suleman‟s daughter is also married in village Saidpur. Md.Gulam (D.W.3) stated that some of the persons who had assembled there were saying that 2-3 persons were carrying a dead body and they threw the dead body and fled away. Md. Qumaruzama(D.W.4) deposed to the effect that there is litigation between the accused persons from before. 14. The specific charges were explained to the accused persons in terms of section 313 Cr. P. C. to which they pleaded not guilty, being innocent and being falsely implicated in this case. 15. On consideration of the materials on record, the learned trial court held that the first place of occurrence which took place by the side of the Ghura near Mobin‟s 8 Darwaza does not stand proved beyond reasonable doubt. In support of his finding the learned trial court observed that there was no mark of any gun shot on the western wall near Ghura burning at Mobin‟s place where co-accused Md.Sanjat is alleged to have fired at P.W.6 (the informant), P.W.4 (Mobin) and the deceased who were warming themselves. The trial court observed that the I.O. has not deposed that he found trampling marks around the maize field where some of the accused were standing. The learned trial court found that there is discrepancy in respect of the time of occurrence as the I.O. stated that he heard firing sound at 7.45 P.M., whereas the informant and other witness stated that firing took place at 6.30 P.M. He further held that the prosecution does not explain as to why the accused persons did not flee inside the Aangan of the house rather they fled towards the mob, which is not a natural conduct. He further held that the witnesses examined are either inimical or interested witnesses and as such their evidence is not reliable. No independent witness has been examined in this case and as such non-examination of some of the witnesses like Azim and J.N. Singh have prejudiced the case of the defence. He further held that there was delay of 2 ½ hours in lodging the F.I.R. He further held that this 2 ½ hours delay in lodging the F.I.R. gave an opportunity to the informant and other PWs to implicate their enemies. The learned trial court further found that there is discrepancy in timing regarding the station diary entry. He stated that it does not inspire confidence as to how the Sub Inspector J.N.Singh was present at 10 PM at the place of occurrence to prepare the inquest report (Ext.6), when in fact he had come to the police station at 9 P.M. with the fardbeyan. The learned trial court doubted the identification of accused persons by prosecution witnesses. The learned trial court also disbelieved the story of accused being identified in torchlight as no torch was shown to the I.O. 16. On the basis of the above findings, the learned trial court held that the charges leveled against the accused persons have not been proved beyond reasonable doubt and as such each of the four accused persons were held not guilty and were consequently acquitted of their respective charges. 9 17 (a). Mr. Lala Kailash Bihar Prasad, learned Public Prosecutor, indicated the extent and scope of jurisdiction of this court in Government Appeal under section 378 Cr.P.C. in interfering with the judgment of acquittal. He submits that in the facts and circumstances of the case if more than one view is possible, or the view taken by the trial court is unreasonable or not based on proper appreciation of material evidence, it is open to this court to interfere with the judgment of acquittal. Learned Public Prosecutor relied upon a decision of the Apex Court in the case of Shailendra Pratap & another Vs State of U.P., 2003 SCC (Cri) 432. He, however, submitted that on appreciation of evidence that only view is possible which has been taken by the trial court, than the judgment of acquittal must be upheld. (b) Learned Public Prosecutor further submits that the prosecution has proved beyond all reasonable doubt that there was sufficient source of light for identifying the accused persons who were all co-villagers. He submitted that the standard of visibility of a villager is on a higher scale than the visibility of people living in urban area who are attuned to power light. He relied upon the decisions of the Apex Court in the case of Ram Gulam Chaudhary & Ors Vs State of Bihar, 2001(4) PLJR (SC)123 as well as in the case of Kalika Tiwary Vs State of Bihar, (1997) 4. SCC 445: 1997(2) PLJR (SC) 1. (c) Learned counsel submits that in the instant case the accused persons on account of previous enmity had animus for committing the alleged offence and prosecution side was victim. Moreover, it is not even the case of the defence that any of the accused persons was even injured. He submits that there has been no delay in lodging the F.I.R., rather the same has been lodged with utmost promptitude. He also stated that medical evidence is in consonance with the prosecution case. He submits that the prosecution has supported the manner of occurrence and the culpability of the accused persons in the crime. He further submits that from the version of prosecution witnesses as well as deposition of the I.O., both the places of occurrence stood proved. He also submits that the prosecution case cannot be discarded on the ground that no independent witness has been examined in this case. There are three eye witnesses to 10 the occurrence and one corroborative witness who are all named in the F.I.R. He relies upon decisions of the Apex Court in the case of Ramjee Rai & Ors Vs State of Bihar, 2006(4) P.LJ.R. 78 (SC), and the case of Sheelam Ramesh & anr Vs State of A.P.,(1999)8 SCC 369. (d) Learned counsel further submits that minor discrepancies and contradictions in the prosecution case and some minor latches on the part of the I.O. in conducting the investigation will not impair the credibility of the prosecution case if it is otherwise trustworthy and inspires confidence. He further submits that the I.O. had found trampling marks around the place of occurrence as well as bullet marks on the southern wall of Samshul where the alleged occurrence of murder of Jumma took place. Learned counsel contended that in view of such full proof evidence which had stood the test of cross-examinations, the prosecution case stood fully proved and there was no scope for the learned trial court to have acquitted the accused persons of the charges. 18. Learned counsel for the petitioner in Criminal Revision has adopted the arguments put forth by the learned Public Prosecutor in Government Appeal. 19. Mr.Shakeel Ahmad Khan, learned Senior counsel for the Respondents submits that the learned trial court on consideration of the evidence on record has rightly not found the Opposite Parties guilty of their respective charges. He submits that the evidence of the witnesses is not reliable and there is material infirmity in the prosecution case. He further submits that the prosecution has not proved source of identification and there has been delay in lodging the F.I.R. He also submits that the extent and scope of this court in Government Appeal against the judgment of acquittal is very limited. He submits that if, on appreciation of evidence, two views in respect of it can be formed then the view adopted by the trial court should not be disturbed. He further submits that the trial court conducting the trial has an advantage of seeing the witnesses in the witness box which the appellate court can not have, and as such the latter should not interfere with the judgment of acquittal unless and until the same is perverse or based on no materials or on appreciation of the same, the court in all 11 circumstances would come to the conclusion otherwise. In support of aforesaid contention learned counsel referred to decisions of Privy Council in the case of Sheo Swarup & Ors Vs King Emperor, 1934 Privy Council 227 and in the case of Jimmy Homi Bharuch Vs State of Maharashtra,A.I.R.1977 SC 1213; in the case of Mulawa Vs State of M.P., A.I.R.1976 SC 989; in the case of Bhim Singh Rup Singh Vs State of Maharashtra, A.I.R.1974 SC 286; in the case of Ramabhupala Reddy & Ors Vs State of A.P., A.I.R. 1971 SC 460 and in the case of Sanwat Singh Vs State of Rajasthan, 1961 SC 715. However, learned counsel laid emphasis in the case of Bhim Singh Rup Singh Vs State of Maharashtra , reported in A.I.R.1974 SC 286 and in the case of Ramabhupala Reddy & Ors Vs State of A.P. reported in A.I.R. 1971 SC 460. 20 (a) Before this court considers the rival contentions on merits, it would be appropriate to examine the extent and scope of jurisdiction of this court in Government Appeal against the judgment of acquittal. The extent and scope of power of the appellate court is prescribed in section 386 of the Cr.P.C. (b) The earliest of the leading judgments in matters of appeal at the instance of the State against acquittal was in the judgments of the Privy Council in the case of Sheo Swarup & Ors Vs King Emperor, 1934 Privy Council 227, and in the case of Noor Mohammad Vs Emperor, 1945