IN THE HIGH COURT OF JUDICATURE AT PATNA Govt. Appeal (DB) No.22 of 1989 ========================================================== The State of Bihar .... .... Appellant Versus Baidyanath Jha ... .... Respondent ========================================================== Appearance : For the Appellant : Miss Shashi Bala Verma, A.P.P. For the Respondent: ========================================================== CORAM: HON’BLE MR. JUSTICE NAVANITI PRASAD SINGH & HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH ********* (Per: HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH) ********** This Government appeal has been filed against the judgment and order of acquittal dated 10th of April, 1989 passed by Shri Raj Kishore Sharma, 3rd Additional Sessions Judge, Madhubani, in Sessions Trial No. 111 of 1984 / 48 of 1988. 2. In the aforesaid case, altogether 11 accused persons were sent up for trial and the trial court after holding the trial found the accused persons not guilty to the charges framed against them and they all were acquitted. The State filed leave to appeal and at the stage of admission itself though by order dated 26.7.1989 passed by a Division Bench of this Court, leave was granted and the appeal was admitted so far as respondent no. 1 Baidya Nath Jha, son of Madhab Jha was concerned. However, by the said order, the appeal was dismissed so far as remaining respondents, i.e. respondent no. 2 to 11 were concerned. We may note that the date of occurrence of the present case is 21.3.1984. The judgment of 2 acquittal was delivered on 10.4.1989. At the time of judgment the appellant was aged about 42 years. We are taking up the Government Appeal for hearing after 27 years of the incident of occurrence and after 22 years of judgment of acquittal. 3. The prosecution case in brief is that on the 21st of March, 1984 at 7 a.m. the informant Puneshwar Jha alongwith his deceased brother Kusheshwar Jha had gone to the northern Bhind of Ratnakar tank for the purposes of getting the standing wheat crop harvested and for filling the field with earth. His brother Kusheshwar Jha was sitting on the ridge of his field and supervising the works which were being done. The informant went to defecate and after easing himself he was washing his hands and mouth in the tank at 7.30 a.m. In the meantime, the accused persons namely Baidya Nath Jha, son of Madhab Jha, Ghuran Jha, Kailu Jha, Surya Naarain Pathak, Ram Chandra Jha, Sitaram Jha, Gopalji Jha, Bachey Pathak, Bhola Thakur, Digember Thakur and Baidya Nath Jha, son of Sahdeo Jha came near his brother Kusheshwar Jha and asked him as to why he was getting the wheat crop harvested and earth cut. Whereupon, the deceased replied that he was the owner of the field and, thus, he was getting the wheat crop harvested and earth field up. Being infuriated upon the reply, accused Ghuran Jha and Baidya Nath Jha, son of Sahdeo Jha commanded the other accused persons to kill Kusheshwar Jha. On such exhortion, accused Baidya Nath Jha, son of Madhab Jha (respondent no. 1) took out a knife from his waist and struck the deceased Kusheshwar Jha from behind his neck. The deceased fell down. Thereafter, two knife blows were given on his chest, one knife blow on his left knee and one blow on his right hand were also given. The deceased succumbed the injuries on the spot. 3 4. It is also alleged in the fardbeyan that Ghuran Jha and respondent no. 11 Baidya Nath Jha, son of Sahdeo Jha chased the informant in order to assault upon him also but, he fled away and started shouting. On hearing his outcry, Rameshwar Jha, Singheshwar Jha, Yadu Mukhiya, Munshi Sah and others came and saw the occurrence. The motive behind the murder is alleged to be an old enmity existing between the parties. 5. On the basis of the aforesaid fardbeyan of P.W.-2 Puneshwar Jha recorded by the Sub-Inspector of Police, Ramdeo Singh (P.W.-8) of Sarisab O.P., on 21.3.1984 at 8.30 a.m., Pandaul P.S. Case No. 51 of 1984 dated 21.3.1984 was registered under Sections 302/34 of the Indian Penal Code on 21.3.1984 at 1 p.m. and P.W.-8 Ramdeo Singh was assigned with duty of investigation of the case. The inquest report (Ext.-5) of the deceased Kusheshwar Jha was prepared on 21.3.1984 at 9.15 a.m. at the place of occurrence itself. The Investigating Officer prepared seizure list, sketch map, etc., and recorded statement of witnesses. After completing the investigation the investigating officer submitted charge sheet against all the 11 named accused persons. The learned Chief Judicial Magistrate took cognizance of the offence against all the accused persons sent up for trial and committed the case to the Court of Sessions for trial. The trial court framed charge against respondent no. 1 Baidya Nath Jha, son of Madhab Jha for having committed the offence punishable under Section 302 of the Indian Penal Code and rest of the respondents were charged for having committed the offence punishable under Sections 302/34 of the Indian Penal Code. Respondent no. 3 Ghuran Jha and respondent no. 11 Baidya Nath Jha, son of Sahdeo Jha were further charged for having committed the offence under Sections 302/109 of the Indian Penal Code. The respondents did not plead 4 guilty to the charges and claimed to be tried. 6. In course of trial, the prosecution examined altogether 9 witnesses. Out of whom, (P.W.-4) Satya Narayan Singh and (P.W.-6) Shiv Shankar Jha are formal witnesses. They have proved certain documents in course of trial, which have been marked Exhibits in the case. P.W.-7 Dr. Md. Nurual Gani held post mortem examination on the dead body of Kusheshwar Jha. P.W.-8 Ramdeo Singh, the then Sub-Inspector of Sariso police station out-post is the Investigating Officer. Sub-Inspector, Thakur Janardan Singh (P.W-9) was posted as Malkhana Incharge in Madhubani court on 29.3.1986. He received one sealed packet material Exhibit-I from the Forensic Science Laboratory, Bihar, Patna. He stated that the sealed packet material Exhibit-I contained four small packets which were marked material Exhibit I/1 to I/4. The report of the Director, Forensic Science Laboratory, Bihar, Patna is Exhibit-X. The rest four witnesses namely Yadu Mukhiya (P.W.-1), Puneshwar Jha (P.W.-2), Munshi Sah (P.W.-3) and Singheshwar Jha (P.W.-5) have deposed as eye-witnesses to the occurrence. 7. As noted above, at the stage of admission itself the appeal as against respondent no. 2 to 11 stood dismissed. The present appeal was admitted for hearing only with respect to respondent no. 1 Baidya Nath Jha, son of Madhava Jha, who alone was charged for the offence punishable under Section 302 of the Indian Penal Code. 8. The defence of respondent no. 1 is that he has been falsely implicated in this case as Rameshwar Jha, who is his cousin wanted that he should part with some portion of his homestead land which is adjacent to the house to Rameshwar Jha in order to facilitate him in construction of his pucca house but, he refused his demand which annoyed Rameshwar Jha and he got respondent no. 1 5 implicated in the present case. The further defence is that all the so-called eye- witnesses examined in the case are inimically disposed towards the accused persons and their presence at the scene of occurrence was not probable. The deceased was on litigating terms with several persons and he had many enemies and some of his enemies might have killed him in the night between 20th and 21st March, 1984 prior to the alleged time of occurrence. 9. The admitted position in this case is that the death of the deceased Kusheshwar Jha was homicidal. The question for determination is whether the respondent was responsible for the crime. The trial court after scrutinizing the evidence of important witnesses, like, P.W.-1, P.W.-2, P.W.-3 and P.W.-5 came to a conclusion that the prosecution had failed to prove the complicity of the respondent in the murder of the deceased Kusheshwar Jha. We find that the trial court has given a very strong reasoning for disbelieving the prosecution case. The entire evidence led in the court, both oral and documentary, have been considered in detail. The reasoning assigned by the trial court for not relying upon the testimony of the witnesses is well-founded. We have also looked into the evidence. We find that all the four so-called eye-witnesses are inimical, interested and partisan witnesses. They have deposed in one case or another against accused persons prior to the institution of the present case. The testimony of the aforesaid four highly interested, inimical and partisan witnesses has not been corroborated by independent and competent witnesses, who were allegedly present at the scene of crime. P.Ws-1, 2, 3 and 5 claimed in their deposition that an old woman was harvesting the wheat crop and 5 to 7 local labourers were cutting and filling earth in the field in which the occurrence is alleged to have taken place. Neither the old woman nor 5 to 7 labourers were examined by the 6 prosecution. Strangely enough their names could also not be divulged in course of trial. The non-examination of the natural, independent and competent witnesses who were harvesting the wheat, cutting the earth and filling the field with earth where the occurrence is alleged to have taken place would give rise to inference that if examined, they would not have supported the prosecution case. The evidence of P.Ws.-1, 2, 3 and 5 suffers from improbabilities and infirmities. 10. P.W.-7 Dr. Md. Nurul Gani in cross-examination admitted that the injuries on the person of the deceased might have been caused by different weapons whereas the allegation, according to P.Ws.-1, 2, 3 and 5 is that it was only the contesting respondent who had inflicted injuries by dagger upon the deceased. The time of murder as alleged by the prosecution and deposed to by P.Ws.-1, 2, 3 and 5 is 7.30 a.m. on 21.3.1984, but the post mortem report (Exhibit-A) indicates that the deceased might have been murdered much earlier in the night between 20th & 21st March, 1984 because the stomach of the deceased contained semi-solid undigested particles. The normal time of taking meal in the night in villages is between 8 p.m. to 10 p.m. The doctor (P.W.-7) has stated that process of digestion starts as soon as the food is taken. He has further admitted in cross-examination by saying injuries within 6 hours means less than 6 hours, by saying injuries within 12 hours means less than 12 hours and by saying injuries within 24 hours means less than 24 hours. The doctor (P.W.-7) held the post mortem examination on the dead body of Kusheshwar Jha on 21.3.1984 at 1 p.m. and was of opinion that the death of the deceased was caused within 24 hours of the post mortem report. The prosecution case as stated above is that the deceased was murdered at 7.30 a.m. on 21.3.1984. Thus, we 7 find that though the post mortem examination on the dead body of the deceased was conducted within 6 hours of the incident but the doctor opined that the death of the deceased was caused within 24 hours. He has further admitted that the age of injuries are judged by the colour of injuries and colour changes within 6 hours, 12 hours, 24 hours and 48 hours. Thus, the death of the deceased as alleged by the prosecution becomes doubtful in view of the medical evidence of the doctor. 11. The defence in order to prove enmity between the deceased and several other persons has filed a large number of documents which have been marked as Exhibits. P.W.-5 has admitted in his deposition that deceased was accused in criminal cases. 12. We have heard the parties, perused the evidence on record and looked into the judgment and order of acquittal recorded by the trial court. The view taken by the trial court, acquitting the respondent was a possible view and could not be said to be palpably wrong on facts or erroneous view of law. The law is well-settled in this regard. The appellate court should not ordinarily set aside the judgment of acquittal in a case where two views are possible. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The findings may also said to be perverse if it is against weight of evidence or it suffers from the vice of irrationality. The Hon’ble Supreme Court has reminded times without number that the appellate court should bear in mind the presumption of innocence of the 8 accused and further that the trial court’s acquittal bolsters the presumption of his innocence. The interference in a routine manner where the other view is possible should be avoided. 13. Though, it is true that the appellate court is entitled to re-apprise evidence. There should be compelling reasons for setting aside an order of acquittal and turning it into one of conviction. 14. We find in the present case that the trial court discarded the evidence of prosecution witnesses not only because they were interested, partisan and inimical witnesses but after an elaborate consideration of the matter refused to place reliance on their evidence. We do not find the findings of fact recorded by the trial court to be perverse. In our view merely because some other view is also possible on re-appraisal of evidence, the finding of acquittal recorded more than two decade back cannot be disturbed. 15. We find no merit in this appeal and, accordingly, the same is dismissed. The sole respondent is discharged from the liabilities of bail bonds. Navaniti Prasad Singh, J. I agree. Patna High Court, Patna The 9th December, 2011 Sanjeet/AFR (Ashwani Kumar Singh, J.) (Navaniti Prasad Singh, J.)