GOVT. APPEAL (DB) No.66 OF 1988 ******* Against the judgment and order dated 20th July, 1988 Passed by 2nd Additional sessions Judge, Patna, in S.T. no. 189 of 1986. ******* THE STATE OF BIHAR---------Appellant Versus 1.YAMUNA PRASAD 2.AMIN MIAH 3.BHUNESHWAR SINGH 4.BISHUNDEO SINGH 5.KASHI NATH ---------Respondents ******* FOR THE STATE : SUSHRI SHASHI BALA VERMA FOR THE RESPONDENTS : S/SHRI SHAKIL AHMAD KHAN, Sr.ADVOCATE & VINJAY ANAND ******* P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON'BLE SRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra, JJ. The present Government appeal has been preferred to challenge the judgment dated 20th July, 1988 passed by the learned Second Additional Sessions Judge, Patna, in Sessions Trial no. 189 of 1986 by which the five respondents of the present appeal were acquitted of the charges under Sections 302 & 302/34 of the Indian Penal 2 Code and 27 of the Arms Act. It is a long narration coming from Gobardhan Sharma (P.W.9) who was the husband of the deceased, Balmiki Devi. Putting in brief the case of the prosecution is that the deceased, Balmiki Devi, was sleeping in the night on 12th July, 1983 in the room which was located at the first floor of the house, which was a solitary room there. The informant, Gobardhan Sharma, used also normally to sleep in the same room. In that particular night the informant had not slept in that room and had chosen to sleep at some other place. 2. It is stated that his son, Dinesh Sharma (P.W.8) was sleeping in another room which was located allegedly on the same floor. He picked up some novel and started reading and by that time he found that all the respondents, armed with licensed rifle and guns as also with country made pistols, started firing. The respondents were seen by Dinesh Sharma in the flash of torch light. It is stated that the deceased Balmiki Devi had received a gun shot into her back and she fell dead. The informant, hearing the cries and shout of his son, came there and found his son lying over the body of his mother and 3 weeping incessantly who narrated about the incident and further narrated that it was Yamuna Prasad who had fired the shot which hit the mother of P.W.8 and wife of P.W.9. It is stated in the fardbayan that the son of the informant, P.W.8, closed the door of his room and started shouting and raising hulla as a result of which the accused persons came down from the roof by the stair case and during that course they stated that they have killed a wrong person as they have come to kill P.W.9, Gobardhan Sharma. 3. As regards the motive for the occurrence, the informant stated that there was some dispute in respect of some construction work to be going on for constructing a School building and as a result of that, and under a conspiracy with some other persons like Kapilesh Prasad and Ajoy Kumar, the murder of his wife had been committed. 4. The case was investigated into and the respondents were sent up for trial during which course twelve witnesses were examined by the prosecution. Two defence witnesses were examined by the defence and the court also examined Baban Singh who, on the relevant 4 date, was Superintendent of Police, Rural, Patna. After considering the evidence on record the judgment of acquittal impugned herein was passed. 5. Sushri Shashi Bala Verma, appearing for the state, has submitted that there was clear evidence of identification of P.W.8 in the flash of the torch light and it appears that the said witness, Dinesh Sharma, had shown the torch light to the Police Officer including Court Witness no.1, the then Superintendent of Police, Rural, as will appear from the evidence. It was contended that it is a case of solitary witness and Dinesh Sharma had given good reasons for his presence at the place of occurrence and there was no motive at least in him so as to implicate the respondents falsely. It was further contended that specific act has been alleged by P.W.8 against respondent Yamuna Prasad and the evidence of P.W.8 and others indicate as if other respondents had been seen at the place of occurrence as also when they were leaving. 6. Shri Shakil Ahmad Khan, learned senior counsel appearing for the respondents, has contested the contention by submitting that the evidence of the 5 Investigating Officer (P.W.12) in paragraph 4 indicates that there was only room at the roof top of the house and there was no other room. As such the claim of P.W.8 that he was also sleeping in another room, which was situated at the roof top, appears not acceptable. It was contended that if there was no room it could be the simple inference that P.W.8 was not there at the roof top and as such his claim of flashing the torch light or seeing the respondents could never be accepted. As regards identification of the respondents in the flash of the torch light, as claimed by P.W.8, the attention of the Court was drawn to paragraph 15 of the evidence of P.W.8 in which he had stated that he had shown the torch light to the Superintendent of Police, Rural. But, it was contended, after drawing the attention of the Court to the evidence of P.W.1 in paragraph 5 that no torch was ever produced either before the Superintendent of Police, Rural, or before the Investigating Officer, whose evidence to that effect appeared in paragraph 34. It was as such contended that the most material aspects of the prosecution story appears imaginary. It was contended that, admittedly, it was 6 murder by mistaken identity. The informant has stated that the accused persons were speaking that they had murdered a wrong person in place of P.W.9, Gobardhan Sharma, whom they intended to kill. It was contended that this statement of the informant itself indicates that it was a complete darkness and identification was not possible on that particular time. 7. We have considered the arguments of the learned counsel for both sides. We have also considered the findings recorded by the trial Court. We find that the learned trial Judge has disbelieved the claim of the prosecution that there was due identification of the respondents in the flash of torch light and has further gone on to say that the claim of P.W.8, Dinesh Sharma, that he was also sleeping on the roof in another room appears completely false inasmuch as C.W.1 and P.W.12, Superintendent of Police, Rural, and the Investigating Officer of the case respectively stated that there was one room at the roof top and that was the room in which Balmiki Devi was sleeping. The enmity part of the story appears discussed in detail by the learned Trial Judge who 7 has even looked to certain documents indicated that there have been proceeding between the parties under Sections 107 and 144 of the Code of Criminal Procedure and the same could be chronic in nature. It was as such recorded that it could be a case of false implication. 8. As stated in the first information report itself by making reference to the statement of an accused that it was a case of murder by mistaken identification. The accused persons had come prepared to kill P.W.9, Gobardhan Sharma, but instead they shot and killed Balmiki Devi. It may be difficult to distinguish between two male persons in the darkness so as to identifying the correct man but when it goes to distinguish a female and male so as to accomplishing the act of killing, in our considered view, it may not be as difficult a proposition as it could be in the case of two males. A female could be identified by her voice and by her disposition which may be expected by her at any particular moment of time. If the accused persons were mistaken Balmiki Devi for Gobardhan Sharma ( P.W.9) it could safely be said that it was so dark as to lead to such a serious mistake of taking 8 up the right person to be killed. As such the question of identifying the accused appears to us a very important aspect of the case. 9. P.W.8, Dinesh Sharma, claimed to have identified the accused persons in the flash of his torch light which he was having during that particular night with him. He has stated in paragraph 15 as that he had shown the torch light to P.W.12, the Investigating Officer of the case, and also C.W.1, Superintendent of Police, Rural, but both the witnesses, P.W.12 and C.W.1, has categorically stated that P.W.8 or for that matter any one of his family did not produce any torch light nor did they show any such article to either of them. The learned trial Judge has raised third adverse inference on the claim of the witnesses on identifying the accused on account of non-production of the torch light. We fully endorse the finding of the learned trial Judge. 10. The other fact which has been reached by the learned trial Judge is that as per prosecution case there were two rooms on the upper floor of the house. P.W.8 has claimed that he was sleeping in one room whereas his 9 mother was sleeping in the room in which the dead body was found. P.W.12, the Investigating Officer, has described the place of occurrence in paragraph 4 of his evidence and he has stated that he did not find any other room than that in which the dead body was found lying in a pool of blood. Similarly, the finding of Superintendent of Police, who had stated that he had gone to supervise the case, is that he had inspected the whole place of occurrence and the entire house of P.Ws.8 and 9. He has also recorded the fact that there was no other room than the place of occurrence room at the roof top of the house. If there was no room at the roof top other than that in which the dead body was found then the simple inference could be that the claim of another person could have slept in that room is completely false. P.W.8 as such could be making a false statement on above aspect of the case that he slept in that particular night in another room situated at the roof top and witnessed the occurrence. His evidence on this score alone cannot be believed so as to vacating order of acquittal, as submitted on behalf of the State. 11. The learned trial Judge has some other 10 case also as we found that the inference raised by the evidence on that appropriate appreciation appear correct. The view that was taken by the learned trial Judge appears to be only view. In the facts and circumstances of the case, we find that the judgment impugned herein was suffering from any element of perversity requiring interference by us. Ultimately, we find that the Government Appeal has no merit and the same is dismissed. We find from the order dated 07th November, 1988 that bailable warrant of arrest were directed to be issued against the respondents and we have a series of reports on the present record indicating that the respondents have executed bail bond. The respondents as also their bail shall stand discharged of the liability of their respective bond. The appeal is dismissed as indicated above. Sd/- (Dharnidhar Jha) Sd/- (Akhilesh Chandra) Patna High Court, The 15th April, 2010, AAhmad/(NAFR). 11