IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.1345 of 2009 Against the judgment of acquittal dated 24th October, 2008 passed by Shri Man Mohan Choudhary, Additional Sessions Judge, FTC III, Patna in S.T. Case No. 469 of 2007/ Sessions Trial Case No. 470 of 2007. ========================================================== The State Of Bihar .... .... Petitioner/s Versus Prabhunath Singh & Ors .... .... Respondent/s ========================================================== Appearance : For the S t a t e : Shri Ashok Kumar Keshri, AAG I For the Respondent/s : Sarvshri Rana Pratap Singh, Senior Advocate Bindhyachal Singh, Raghwendra Kumar & S.B.K. Mangalam, Advocates ========================================================== P R E S E N T THE HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ------------ Dharnidhar Jha, J. This Criminal Revision has been initiated by the court exercising its suo motu power in the light of the minutes recorded by the Hon’ble Inspecting Judge of Patna Judgeship on 4.5.2009 and resolution of the Standing Committee dated 14th July, 2009 on Agenda Item no. 1 (ii). 2. The judgment impugned herein is dated 24.10.2008 passed by the learned Presiding Officer, Fast Track Court III, Patna in S.T. Nos. 469 and 470 both of 2007 arising out of Panapur P.S. Case no. 62 of 1995 by which the learned trial judge acquitted the respondent nos. 1 to 7 of the charges under 2 sections 147, 148, 302, 307/149 and 302/149 IPC and section 27 Arms Act by holding that the prosecution has totally failed to bring the charges home against them. 3. The facts of the case has been narrated by the court below in its judgment in paragraph 4 and this court also wants to reiterate them. The story is based on the fardbeyan of the informant who now is one of the two deceased persons recorded on 25.3.1995 at 10.30 A.M. in State Hospital Camp, Panapur by SI N.N. Thakur (not examined) of Panapur police station. At the time of recording the fardbeyan, two persons, namely, Darogi Rai who is the other deceased and injured P.W. 6 Srimati Devi, were also present as per the claim of the prosecution in the Camp Hospital, Panapur. It was stated by the informant that he along with his co villagers had gone to cast their votes at Booth nos. 98 and 100. After having cast their votes, the informant along with eight – ten others were coming back to their village Dhanuki and when they had reached the pitch road situated at a distance of 700 yards south east of the booth, a motor car came all on a sudden from Satjora side, which was occupied by five-six persons who were armed with rifles and guns. It was stated that front seat of the car was occupied by respondent Prabhunath Singh, who was the candidate of B.P.P. It 3 was alleged that respondent Prabhunath Singh inqured from the informant and his companions as to for which party they had cast their votes, upon which they responded that they had in favour of Janta Dal by putting their seals over the symbol Chakra. 4. It was stated that after having heard the above statement, the vehicle sped away fast towards south and stopped there at some distance. Respondent Prabhunath Singh came out of the vehicle and fired two shots from his rifle at the informant and others while the other occupants remained inside it. After having fired the shots, he again sped away immediately towards south. 5. On the halla raised by the informant and his companions and also on hearing the sounds of gun shots, the CRPF personnel who were deputed at the polling booth, started firing for security reasons as also for their personal safety and in that course, three rounds of shots were fired but by that time accused persons had succeeded in making good their escape with their vehicle. The informant Rajendra Rai stated that he received gun shot along with other injured Darogi Rai and Srimati Devi, who was hit in her arms and was seriously injured. The three injured were put on cots by their villagers and were brought to Camp Hospital, Panapur where the informant was treated and where he gave his 4 fardbeyan. 6. It was stated by the informant that the candidate of B.P.P., namely, respondent Prabhunath Singh and his companions had fired with an intent to kill the informant and others, as a result of which the three, namely, himself, Darogi Rai and Srimati Devi (P.W. 6) were injured and the incident had been seen by his villagers who were coming after or going to cast their votes. However, the informant named Kedama Rai (P.W. 3), Harendra Rai (P.W. 4), Devnath Bhagat (P.W. 5) and others also as persons who had seen the occurrence. 7. It appears from the records, which is available with this court, that on the basis of the fardbeyan of Rajendra Rai, one of the two deceased, the FIR of the case was drawn up and investigation was proceeded with. The I.O. was not produced nor the fardbeyan of Rajendra Rai was brought on record even by formally proving it though the statement of Kedama Rai had been exhibited but what appears from the records is that Darogi Rai died and the case which was initially registered under section 307, etc. IPC and section 27 of the Arms Act was converted into one also under section 302 IPC by adding up that particular section of offence by order passed by the C.J.M., Saran on 30th March, 1995. It is evidently clear that the investigation was completed and the accused persons were 5 tried by framing charges under sections they have been acquitted under the impugned judgment. 8. Record of the case indicates that the trial was transferred from Saran at the orders of this Court passed in Cr. Misc. No. 5914 of 1996 to the District and Sessions Judge, Hazaribagh when the State of Bihar was unified and, accordingly, the record was received by Sessions Judge, Hazaribagh on 3.9.1996. It further appears that the trial could not be proceeded and no progress was made in trial of the accused persons at Hazaribagh. In the meantime, on account of bifurcation of the State of Bihar, in view of letter no. 8270/Appointment dated 4.12.2002 issued by the Registrar General of Jharkhand High Court, Ranchi, the trial of the case was directed to be made over to the Sessions Division of Bhagalpur from Hazaribagh and, accordingly, the records of the case was received in Sessions Division, Bhagalpur on 2.1.2003 and the same was made over to an Additional Sessions Judge for trial. After so many years the charges could be framed only on 26th day of May, 2006 by the Presiding Officer of Fast Track Court II, Bhagalpur and, lastly, by order passed by this Court in Cr.W.J.C. No. 717 of 2007, the trial was again transferred from Bhagalpur to Patna with five directions which are contained in paragraph 2 of the impugned judgment. 6 Accordingly, the trial was re-heard and the witnesses who had been examined by the Additional Sessions Judge, Bhagalpur were also recalled or reproduced for their evidence. 9. As may appear from the impugned judgment, ten witnesses were examined by the prosecution in support of the charges but the I.O. of the case or the officer who had recorded the fardbeyan of one of the deceased Rajendra Rai, was not examined. 10. As regards the merit of the evidence of the witnesses, it appears that P.W. 1 Parma Rai who was the uncle of the deceased Rajendra Rai, P.W. 2 Harinath Rai, P.W. 3 Kedama Rai who was also named in the FIR and who was the uncle of the deceased Rajendra Rai as also another FIR named witness, namely, P.W. 4 Harendra Rai who happened to be the son of C.W. 1 Lalmuni Devi was directed to be examined by the trial court by this court in the above noted criminal writ jurisdiction case with P.W. 5 Dinanath Bhagat, P.W. 6 Srimati Devi, an injured witness and P.W. 7 Tarkeshwar Rai who turned hostile and were discharged. Not only that, P.W. 8 Ram Kumar Singh, a constable in CRPF as also P.W. 9 J. Santha Raman, an officer in the rank of Major in CRPF were also not supporting the allegations that the respondent Prabhunath Singh had fired and 7 injured the two deceased and the third P.W. 6 Srimati Devi. Two doctors - P.W. 10 Dr. Sudhir Kumar was the doctor who had initially examined the three injured, i.e., the informant Rajendra Rai, P.W. 3 Kedama Rai and the deceased Darogi Rai and had issued injury reports (Exts. 2, 2/1 and 2/2) P.W. 11 Dr. Ashok Kumar Gupta had held postmortem examination on the dead body of Darogi Rai and had issued Ext.3. It appears that Rajendra Rai (informant) had died in PMCH and the doctor who had held postmortem examination, i.e., Dr. B.D. Prasad, a doctor of PMCH was not examined. However, the postmortem report of Darogi Rai (Ext.3/1) was admitted in evidence as may appear from paragraph 22 of the judgment. 11. While attacking the impugned judgment, the learned Additional Advocate General XI, Shri Ashok Kumar Keshari, was taking me through the relevant part of the judgment and was submitting that the learned trial court while considering the evidence of individual witnesses did not record that any affidavit was filed by any of them indicating that they were not desirous of giving further evidence than what had been deposed to by them before the court of Additional Sessions Judge, Bhagalpur. It was further contended that the court ought to have acted in the light of (2004) 4 SCC 158 (Zahira Habibullah Sheikh Vs. State of 8 Gujrat) and yet another judgment of the Supreme Court reported in (2003) 3 SCC 518 wherein it was observed at page 531 that in a case of defective investigation the court has to be circumspect and if it finds some attempt by the I.O. to help out the accused by destroying the prosecution case, then it should not go by the evidence as regards the contradictions, etc. Some submissions were made Shri Mangalam, who appears appearing on behalf of some concerned persons who do not appear to be related to the deceased in any manner. 12. So far as the opposite parties are concerned, it was contended that there was no illegality nor any perversity in the impugned judgment and no case was ever made out showing that the judgment was perverse or there was any fallacy in complying with the direction of this Court in the above noted criminal writ jurisdiction case. It was submitted that as per the direction of this Court, a discretion was granted to the Public Prosecutor vide direction no. (v) when it was observed “it will be open to the Special P.P. to make an application for recall of witnesses earlier examined. In case such a petition is filed, the trial court shall pass appropriate orders in accordance with law.” 13. It was contended that a petition for recalling the witnesses examined in the court at Bhagalpur was filed on 24.9.2008 and, accordingly, 9 summons were issued and on 29.9.2008, the Public Prosecutor produced the witness with their affidavits by which they had made statements that they were adopting their previous statements originally given before the Additional Sessions Judge cum FTC – 2, Bhagalpur. It was contended that in spite of the FIR of Rajendra Rai being not brought on record, the court was considering its relevance appropriately and thereafter was not placing reliance upon it. So far as evidence of C.W. 1 Lalmuni Devi was concerned, it was submitted that besides the finding recorded by the learned trial judge, it has also to be considered that in respect of an occurrence dated 25.3.1995, the lady C.W. 1 was giving her statement after five months of the occurrence on 21.8.1995 and was still giving a different story on most material parts of the prosecution case. 14. I have gone through the judgment impugned herein as also the discussion of the evidence made by the trial judge in it besides I have considered the evidence of the prosecution witnesses. Before I go on to record my findings, it may be pertinent to point out that the revisional powers of this Court is akin to its appellate power as appears from section 401 Cr.P.C. By virtue of section 386 Cr.P.C., this Court is empowered to upset the findings of guilt or acquittal while sitting in revision even if it has been initiated suo motu. The appellate powers of 10 the High Court and its scope and ambit was discussed in one of my judgments reported in the matter of State (through SPE/CBI/Patna) Vs. Md. Wasimuddin and ors. reported in 2011(3) BBCJ 156. 15. After having considered the judgment of the Supreme Court in Sanwat Singh and ors. Vs. State of Rajasthan AIR 1961 Supreme Court 715 as also that of Sheo Swarup & ors. Vs. King Emperor AIR 1934 Privy Council 227(2), this Court was observing as under in paragraph 16 of the report: “Thus, it was finally laid down that the appellate court is empowered in an appeal against acquittal to review the entire evidence against acquittal and to come to its own conclusion but while so doing, it must not only consider every matter on record having a bearing on the questions of facts but must also consider the reasons given by the trail court in support of its orders of acquittal in arriving at its conclusion on those facts, but should also express its own reasons in its judgment on those issues which laid it to hold that the acquittal was not justified.” 16. This is evidently clear from the evidence of P.W. 10 Dr. Sudhir Kumar, who was the Medical Officer, Primary Health Centre, Panapur where the three deceased persons were brought as per the prosecution case, that the three were unconscious. This appears from paragraph 5 of deposition of P.W. 10 which was recorded on 24.9.2008 after having recalled him in the light of the direction of this Court. Thus, it casts a serious doubt as regards the very foundation of the 11 prosecution case that the informant Rajendra Rai would have been in a position to make his statement. It was stated by P.W. 10 that the condition of the three injured specially that of Darogi Rai (deceased) was very serious and accordingly after having given the first aid he referred all the injured to Sadar hospital, Chapra. It appears from the evidence of P.W. 11 Dr. Ashok Kumar Gupta, who was Associate Professor in the Department of Forensic Medicine and Toxicology, PMCH, Patna that Darogi Rai died there and he held postmortem examination on 26.3.1995 at 3 P.M. It is true that Dr. B.D. Prasad, who had held postmortem examination on the dead body of Rajendra Rai, has not been examined and it is also not acceptable at least to this court that his report could be admitted under section 294 Cr.P.C. as a postmortem examination report is not covered by that particular provision as one of the documents which could be admitted and considered as evidence of the case. However, this much could be gathered from that particular report that Rajendra Rai has died on account of certain injuries. In the above background, the evidence of C.W. 1 Lalmuni Devi, mother of the deceased Rajednra Rai, who made statements after five months of the occurrence, has to be considered. It is true that she was deposing in support of the prosecution story but during cross examination she was making a statement that her son 12 Harendra Rai (P.W. 4) had prompted her to implicate respondent Prabhunath Singh as the person who had fired the shot. The learned trial judge has been a bit mild in holding that the witness was hear say from P.W. 4 Harendra Rai. I do not share the view of the learned trial judge rather I go a step ahead in noting that by no canon of appreciation of evidence, C.W. 1 could be said to be a hear say witness rather she appears a tutored person who was prompted to make a statement probably she was not ready to make so as to implicate respondent Prabhunath Singh as the assailant of the deceased persons. This is a simple inference that a reasonable person could draw by virtue of the earlier statement of C.W. 1 and here was the fallacy in her evidence, which rendered it quite unsafe and dangerous to accept her evidence to record a finding regarding the charges being established to the hilt. Not only the above, she appears having made certain statements which do not get support from other witnesses. C.W. 1 stated in paragraph 2 that her statement was recorded by the police in presence of P.W. 3 Kedama Rai. But, P.W. 3 was not supporting her. Likewise, she stated in her evidence that when the car came carrying the respondents, it had gone into the Rahar (Arhar) field from where Prabhunath Singh fired the shot. All other witnesses who were examined in the case, did not make this statement that they 13 had identified the respondent Prabhunath Singh as the person who had fired from Arhar field targeting the injured or the deceased. In addition to the above, she stated that after finding her son Rajendra Rai injured, he brought him from the booth of Panapur to Panapur police station from where the police sent him to PMCH. It is quite contrary to the basic prosecution case which is the fardbeyan of Rajenra Rai and also to the evidence of P.W. 10 Dr. Sudhir Kumar, who stated that he had received three injured persons in Primary Health Centre, Panapur and had examined them and finding their conditions serious had forwarded them to Sadar hospital, Chapra for better treatment which appears quite a reasonable statement as regards the transmission of the injured, specially Rajendra Rai, to Patna. The most important aspect of the evidence of C.W. 1 was that in examination-in-chief she was projecting herself as an eye witness but at the same time she was appearing tutored, as had already been pointed out by me by her son to implicate respondent Prabhunath Singh as the assailant of the deceased. However, P.W. 4 Harendra Rai, her son, does not say that he even had talked to his mother on any aspect of the case. Thus, what I find from the evidence of C.W. 1 is that she was making the statement out of her imagination and, probably, on account of being tutored by someone. 14 17. The learned trial judge has held that C.W. 1 was not named in the charge sheet. While I was perusing the lower court records, I came across the recorded statement of C.W. 1 at page 13 thereof and that was probably recorded as a statement by Pirbahore Police station while she was attending to her injured son in PMCH. That could be sufficient to indicate that her statement was recorded during investigation. As regards the intrinsic quality of her evidence, I have already noted that it was simply dangerous to act upon her evidence due to the chances available from her own deposition that she was tutored to make some one the assailant of the deceased. 18. So far as other witnesses are concerned, their evidence has individually been discussed right from paragraph 12 to 19 and on perusal of that discussion as also testing the discussion on the basis of original record, I find that the learned trial judge has not erred in appreciating the evidence. They were, firstly, not supporting the prosecution evidence and they were also, at the same time, pointing out that they had not named any one as they had not seen and identified any person as the assailant of the three injured out of whom, two succumbed to the injuries later on. In addition to that, they have further stated that they had not seen C.W. 1 Lalmuni Devi anywhere on or around the place of 15 occurrence. That part of evidence appears improbabilizing the evidence of C.W. 1. 19. So far as the submission of the learned AAG 11 on non- consideration of the individual affidavits of those witnesses is concerned, it may be true that the reference has not been made while the evidence of witness was individually being discussed by the learned trial judge, but it is not that it was not made part of the judgment. Paragraph 31 of the judgment properly takes cognizance of issuing summons by the court below in pursuance to direction no. (v) of this Court in the above noted Cr.W.J.C. No. 717 of 2006 and production of witnesses by the learned Public Prosecutor and, simultaneously, the filing of the affidavits before the learned trial judge that they adopted their evidence which they had given before the learned trail judge at Bhagalpur. A lot was argued on the production of the witnesses and filing of the affidavits but for that, the trial judge could not be faulted. It was for the Public Prosecutor as to how he was to produce witnesses. It is too well known to be pointed out that it is rather his privilege and if he, on preliminary questioning, was satisfied from their statement and submission to him that they were simply inclined to adopt their earlier evidence which they had given in the trail court at Bhagalpur without adding up 16 any further facts to it, then in my considered view, the learned Public Prosecutor may also not be faulted as nothing could have happened better than what had really happened when the witnesses had specified by filing their affidavit in adopting their earlier evidence. Even if the discussion of their individual evidence would have consisted of that particular aspect of the trial, the net result would have been the same that they were declared hostile, each of them had deposed that they did not see as to who had fired from the Arhar field when they were returning to their home in a group after having cast their votes. They had categorically stated to the trial court that the shots were fired from Arhar field and that Arhar plants were above the height of a human being. They have very categorically stated that they did not recognize the assailant. In my considered view, no further purpose could have been served in recording their evidence if the witnesses were to be reproduce the same facts stated by them in individual affidavits which were marked as part of the records. 20. The learned trial judge appears over cautious when he was considering the fardbeyan of Rajendra Rai and its value as dying declaration. He has rightly noted that if the officer or the authority who had recorded the statement had not been examined, then the document was valueless. The law is 17 trite that the authority or the official or the person by whom such a document has been recorded must come and depose to not only on having recorded the document, but also that he recorded it word by word as was told to him by the dying man. In that view, the document which was not brought on record nor the officer who had recorded it had been examined, was rightly not to be considered as a piece of evidence under section 32(1) of the Indian Evidence Act. However, the learned judge went on to consider some of the decisions of this Court and that of the Supreme Court also as to under what circumstances such a document may not be acceptable as a piece of evidence upon which the conviction of an accused could be based. It has been noted by the learned trial judge that mental and physical health of the deceased is one of the factors as appears discussed by him