If two views are possible on the same evidence, then the views in favour of the accused must be preferred: High Court of Patna

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.3518 Arising Out of PS. Case No. 97 Year 2006 Thana HARNAUT District Nalanda Babban Singh @ Daddan Singh Son of Anirudh Singh Resident of Village Laluadih P.S. Harnaut District Nalanda The State Of Bihar ... Appellant ... Respondent For the Appellant s Mr. Krishna Prasad Singh Sr. Advocate Mr. Davendra Kumar Pandey Advocate For the State For the Injured Mr. Rajesh Kumar Singh Advocate CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR Mr. Binod Bihari Singh A.P.P Date : 02 07 2021 Altogether twelve accused persons faced trial in Sessions Trial No. 5308 corresponding to Harnaut P.S. Case No. 97 of 2006 before the learned Fast Track Court No. 1 Nalanda for offences under Sections 147 148 447 149 307 149 and 307 I.P.C. as well as under Section 27 of the Arms Act. The eleven were acquitted of all the charges on the very same evidence and the sole appellant was convicted under Section 307 I.P.C. and 27 of the Arms Act by the impugned judgment of conviction dated 04.12.2017. By order of sentence dated 06.12.2017 the appellant was awarded ten years rigorous imprisonment and a fine of rupees fifty thousand for offence under Section 307 I.P.C. In default of payment of fine one year rigorous imprisonment was ordered. For offence under Section 27 of the Arms Act three years rigorous Patna High Court CR. APPNo.3518 dt. 02 07 2021 imprisonment was awarded along with fine of rupees one thousand. In default of payment of fine two months rigorous imprisonment was ordered 2. The prosecution case as disclosed in the written report submitted by PW 4 Gajendra Prasad Singh is that on 11.06.2006 voting for Panchayat election was going on in village Laluadih P.S Telmar O.P.) Harnaut District Nalanda. The informant was sitting at his Dalan along with Shiv Shankar SinghSudhir Singh PW 5) Murli Manohar Singh and other villagers. At about 11:30 A.M. Mukhiya candidate Deshraj Singh Chauhan Dharmendra Singh along with his supportersvariously armed came to the Dalanand exhorted others to kill Mukhiya i.e PW 4. On that co accused Dharmendra Singh fired at the informant but the informant hide himself behind a pillar. Others who were sitting there started fleeing. Then the appellant Babban Singh @ Daddan Singh carrying a pistol fired causing injury at the left eye of Shiv Shankar SinghNo.3518 dt. 02 07 2021 4. PW 1 Murli Manohar Singh PW 2 Shiv Shankar Singh PW 3 Nand Kishore Singh PW 4 Gajendra Prasad Singh and PW 5 Sudhir Singh have supported in their respective depositions about the date of occurrence the manner of occurrence the place of occurrence and the perpetrators of the crime as disclosed in the FIR. Save and except that Gajendra Prasad Singhdeposed that it was co accused Pawan Singh since acquitted) who had caused injury to Shiv Shankar Singh at the left eye has proved the formal FIR. 5. PW 6 Dharmendra Kumar is a formal witness who 6. PW 7 Dr. Parmanand Prasad Pal had treated the firearm injury on Shiv Shankar Prasad Singh. The injury report was proved by PW 7 and marked as Exhibit 7 7. PW 8 Rajesh Ranjan and PW 9 Arjun Prasad were investigating officer of the case. They have supported the investigation done by them 8. Mr. Krishna Prasad Singh learned senior counsel for the appellant contends that PW 4 Gajendra Prasad Singh who is informant of this case is not a hostile witness. He has deposed that it was co accused Pawan Singh who had caused firearm injury at the left eye of Shiv Shankar Singh. His statement cannot be taken Patna High Court CR. APPNo.3518 dt. 02 07 2021 as slip of tongue because Pawan Singh was also an accused in this case. Thus two conflicting evidence is on the record. One is 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 makes the prosecution case Learned senior counsel further contends 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. 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. Learned senior counsel has drawn attention of the court to the statement of PW 2 Shiv Shankar Singh the injured witness who deposed that when the firing started they all started fleeing. There is no evidence that they were fleeing facing the firing and normal conduct would be that the people would flee away from the firing In that situation it was difficult to see as to whose shot had caused the injury when several persons were allegedly indulged in firing 9. Mr. Binod Bihari Singh learned A.P.P. and Mr. Rajesh Kumar Singh learned counsel appearing for the injured contends that except PW 4 other prosecution witnesses are consistent that Patna High Court CR. APPNo.3518 dt. 02 07 2021 the appellant had caused injury at the left eye of Shiv Shankar Singh. Gajendra Prasad Singh had also stated in the FIR that appellant had caused injury to Shiv Shankar Singh. If Gajendra Prasad Singh said before the court as PW 4 that it was Pawan Singh who had caused injury to Shiv Shankar Singh that would not make other four trustworthy witnesses unbelievable 10. There is no dispute that PW 4 Gajendra Prasad Singh is not a hostile witness. Even after 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 In Raja Ram V. The State of Rajasthan reported in 2005) 5 SCC 272 the Hon’ble Supreme Court said 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. The aforesaid view was reiterated in Mukhtiar Ahmed Ansari V. The Statereported in5 SCC 258 in following terms : “29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case Patna High Court CR. APPNo.3518 dt. 02 07 2021 as PW 1. He however did not support the prosecution. The prosecution never declared PW 1 “hostile”. His evidence did not support the prosecution. Instead it supported the defence. The accused hence can rely on that evidence 30. A similar question came up for consideration before this Court in Raja Ram V. State of RajasthanNo.3518 dt. 02 07 2021 learned 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 it is doubtful that any one would have seen the real person who had caused firearm injury 12. In view of the aforesaid infirmities in my view conviction of the appellant is not sustainable in law. Accordingly the impugned judgment of conviction and order of sentence are hereby set aside. The appellant is acquitted and this appeal is allowed. Let the appellant be set free at once (Birendra Kumar J

Summary: When the witness is not declared hostile by the prosecution, the defense can rely upon the evidence of such witness and it would be binding on the prosecution. This was decreed by the court in the case of Babban Singh @ Daddan Singh Vs. State of Bihar [Criminal Appeal (SJ) No.355 of 2018] said, “Moreover, 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” by the Hon’ble Mr. Justice Birendra Kumar on 2.07.2021. The brief facts of the case are, an FIR was filed by the informant wherein, he claimed that on the day of the village panchayat election, him along with Shiv Shankar Singh(injured) and other villagers were sitting outside his house. The Mukhiya candidate along with his supporters (12 accused) came to their house armed and expressed to kill the informant. On that, one of the co-accused fired at the informant but he dodged this by hiding behind a pillar. At this sight, all the others gathered at the house started fleeing. The appellant fired at the injured causing injury to the eye. Post investigation, the 12 accused where charged under various sections of the IPC and under the arms act an underwent trial. The trial court acquitted everyone except the appellant and on the very same evidence convicted the appellant under section 307 of the IPC and section 27 of the arms act. Aggrieved by this, the appellant filed a criminal appeal before this court challenging his conviction. The counsel for the appellant submitted that the informant is not a hostile witness since he mentioned that the injury was caused by another and not the appellant and was in contradiction to the statements of the other prosecution witnesses. Thus, there were two conflicting evidences on record. He further submits that; eleven co-accused were acquitted on the same evidence and the appellant was convicted without providing any reason as to how the present case was different from that of the 11 co-accused despite the fact that the same evidence was used. He also drew the attention of the learned court to the fact that the injured in his statement mentioned that the others fled from the scene. He mentioned that the ordinary course of conduct was to flee away from the firing and thus, it was difficult to see who had shot to cause the injury. The counsel for the respondent submitted that except the statement of the informant, the other statements by the prosecution witnesses are consistent. They mentioned that the court mustn’t disregard the statements of the other four witnesses.