Patna High Court
Arti Kumari vs The State Of Bihar on 11 December, 2023
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.875 of 2023
Arising Out of PS. Case No.-427 Year-2012 Thana- BARACHATTI District- Gaya
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Arti Kumari D/o Badhan Mandal R/o Village - Bumuar, P.S. - Mohanpur,
District-Gaya.
... ... Appellant
Versus
1. The State of Bihar
2. Subedar Yadav S/o Late Badho Yadav
3. Mukesh Yadav S/o Surendra Yadav
4. Yogesh Yadav S/o Surendra Yadav
Respondent Nos. 2 to 4 are the resident of Village-Bumuar, P.S.-Mohanpur,
District-Gaya.
... ... Respondents
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Appearance :
For the Appellant : Mr. Yugal Kishore, Advocate
Mr. J.P. Singh, Advocate
For the Respondents-State: Mr. Sujit Kumar Singh, APP
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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 11-12-2023
The present appeal has been filed under Section
372 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as 'the Code') by the appellant-original informant
against the impugned judgment and order of acquittal dated
15.05.2023
rendered by learned Special Judge, SC/ST (POA)
Act, Gaya in G.R. No.1220 of 2012, SC/ST Trial No.101 of
2015 arising out of Barachatti (Mohanpur) P.S. Case No.427 of
2012 for the offences punishable under Sections 302 read with
34 of the Indian Penal Code (for short 'IPC') as well as Section
Patna High Court CR. APP (DB) No.875 of 2023 dt.11-12-2023
3(1)(x) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act (hereinafter referred to as 'the
Act') whereby the present prime respondents have been
acquitted from the charges levelled against them.
2. Heard Mr. Yugal Kishore, learned advocate for
the appellant-informant and Mr. Sujit Kumar Singh, learned
APP appearing on behalf of the respondent-State.
3. The prosecution story, in brief, is as under:-
One Sahdev Manjhi gave his
fardbeyan that the marriage of his daughter
Futuk was solemnized 20 years back with
Badhan Manjhi of village-Bumuuar. Futuk
has two sons and three daughters. Her eldest
daughter aged about 15 years used to study
at Bodhgaya. Two sons and daughters used
to live with Futuk in Bamuwar. On
06.10.2012 at about 11 pm, Subedar entered
in the house of his daughter and set his
daughter Futukwa at fire by pouring
kerosene and run away. When his daughter
raised alarm, his natni namely, Arti Kumari
started shouting. Subedar again came and
extinguished the fire and went away. After
sometime, Nephews of Subedar namely,
Yogesh and Mukesh came and took her at
the doors of Subedar. Thereafter, Subedar
took Futuk to ANMCH, Gaya for treatment
Patna High Court CR. APP (DB) No.875 of 2023 dt.11-12-2023
on his vehicles. He further stated that he was
informed by his natni on telephone. His
natni is the eye witness of the incident. He
visited ANMCH, Gaya. On 07.10.2012 at
about 11 am his daughter Futuk and Natni
told him the whole incident and in the
meanwhile his daughter died in the course of
treatment. He claimed that his daughter
Futuk was set at fire pouring kerosene by
Subedar owing to old enmity due to which
his daughter Futuk died.
4. After the fardbeyan of the informant was
recorded, the formal FIR came to be registered before the
concerned police station and the Investigating Officer carried
out the investigation, during the course of which, the
Investigating Officer has recorded the statement of witnesses
and collected the documentary evidence. After the investigation
was concluded, the Investigating Officer filed charge-sheet
against the respondents-accused for the offences punishable
under Section 302 read with section 34 of the Indian Penal Code
(in short 'IPC) as well as Section 3(1)(v) of the Act.
5. Before the Trial Court, the prosecution had
examined eleven prosecution witnesses, whereas the defence
had examined two witnesses.
6. The further statement of the respondents-
Patna High Court CR. APP (DB) No.875 of 2023 dt.11-12-2023
accused under Section 313 of the Code came to be recorded.
After the conclusion of trial, the Trial Court acquitted the
private respondents herein from the charges levelled against
them. Against which, the appellant- informant has preferred the
present appeal.
7. Learned counsel for the appellant has mainly
assailed the impugned judgment and order of acquittal rendered
by the Trial Court on the ground that PW-1, who is the mother
of the deceased, is the eyewitness to the occurrence and though
she has supported the case of the prosecution, the Trial Court
has not properly considered her deposition and thereby passed
the impugned judgment. It is also submitted that other
prosecution witnesses have also supported the case of the
prosecution, despite which, the Trial Court has recorded the
order of acquittal. Learned advocate for the appellant, at this
stage, has referred to the deposition given by PW-8 Dr. P.N.
Sinha, who has conducted the postmortem on the dead body of
the deceased. It is pointed out that the deceased sustained 85%
burn injuries, as a result of which, she died. Thus, the
prosecution has proved the case against the respondents-accused
beyond reasonable doubt. Despite which, the Trial Court has
passed the impugned order. Learned counsel therefore urged that
Patna High Court CR. APP (DB) No.875 of 2023 dt.11-12-2023
the present acquittal appeal be allowed and, thereby, the
impugned order passed by the concerned Trial Court be quashed
and set aside.
8. On the other hand, learned APP has also
supported the submissions canvassed by learned counsel for the
appellant-informant. However, learned APP has submitted that
till date the State has not preferred acquittal appeal against the
impugned judgment and order of acquittal passed by the
concerned Trial Court.
9. We have considered the submissions
canvassed by the learned counsel appearing for the appellant as
well as learned APP. We have also perused the copy of the
deposition of the prosecution witnesses. Learned counsel for the
appellant has provided the typed copy of the deposition of the
witnesses. From the record, it would emerge that PW-1 is the
mother of the deceased and as per the case of the prosecution,
she is the eye-witness to the occurrence, whereas PW-2 to PW-7
are the near relatives of the deceased and it is the case of the
prosecution that the aforesaid witnesses have supported the case
of the prosecution. PW-8 is the doctor who had conducted the
postmortem on the dead body of the deceased, whereas PW-9
and PW-10 have not supported the case of the prosecution. PW-
Patna High Court CR. APP (DB) No.875 of 2023 dt.11-12-2023
11 is the informant and grand-father of the deceased. The said
witness has not supported the case of the prosecution. Despite
which, he was not declared hostile. It is not in dispute that the
prosecution has failed to examine the Investigating Officer, who
has carried out the investigation.
10. As observed hereinabove, we have perused
the deposition of the prosecution witnesses. From which, it is
revealed that there are major contradictions in the deposition of
the prosecution witnesses. It is pertinent to note that though the
occurrence in question took place on 06.10.2012 at about 11:00
PM, the FIR was lodged after lapse of a period of two days.
Initially, the victim-injured was admitted in the hospital, where
she survived for a period of two days, despite which, her dying
declaration has not been recorded by the Executive Magistrate
nor her statement was recorded by the police. It is specific case
of the prosecution witnesses that "Furtuwa came crying saying
Subedar is running setting her at fire". Thus, from the deposition
of the said prosecution witnesses i.e., PW-2 to PW-7, the victim-
injured was in a position to give her statement despite which,
her statement was not recorded by the concerned police. There
is no evidence on record to show that the injured was not fit to
give her statement when she was admitted in the hospital. The
Patna High Court CR. APP (DB) No.875 of 2023 dt.11-12-2023
prosecution has also failed to produce the medical papers of the
victim.
11. From the deposition given by PW-8, the
doctor, who conducted the postmortem on the body of the
deceased, it is further revealed that in the cross-examination, the
said witness has specifically stated that it may be possible to
accidental burn. The said witness further stated that there was no
other smell except the smell of ointment. Thus, from the
aforesaid deposition of the doctor, it is clear that smell of
kerosene was not found from the dead body of the deceased. At
this stage, it is also pertinent to note that the panchnama of the
place of occurrence has also not been produced before the court
nor there is panchanama seizure of the clothes of the deceased
placed on record. It is specific case of the prosecution that the
private respondents poured kerosene on the deceased and,
thereafter, set her on fire. However, from the record produced
before the concerned Trial Court, the prosecution has failed to
point out any material that kerosene was found at the place of
occurrence or any smell of kerosene was found from the cloth of
the deceased.
12. We have also gone through the reasoning
recorded by the Trial Court and we are of the view that the Trial
Patna High Court CR. APP (DB) No.875 of 2023 dt.11-12-2023
Court has rightly given the benefit of doubt to the respondent-
accused, as the prosecution has failed to prove the case against
the respondents-accused beyond reasonable doubt.
13. At this stage, we would like to refer the
decision rendered by the Hon'ble Supreme Court in the case of
Chandrappa & Ors. vs. State of Karnataka reported in
(2007) 4 SCC 415 wherein the Hon'ble Supreme Court in Para-
42 has laid down the general principles regarding powers of the
appellate court while dealing with the appeal against the order
of acquittal. It observed as under:-
"42. From the above decisions, in our
considered view, the following general
principles regarding powers of the appellate
court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts
no limitation, restriction or condition on
exercise of such power and an appellate court
on the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial
and compelling reasons", "good and sufficient
grounds", "very strong circumstances",
"distorted conclusions", "glaring mistakes", etc.
Patna High Court CR. APP (DB) No.875 of 2023 dt.11-12-2023
are not intended to curtail extensive powers of
an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of
"flourishes of language" to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly,
the presumption of innocence is available to
him under the fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly,
the accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are possible
on the basis of the evidence on record, the
appellate court should not disturb the finding of
acquittal recorded by the trial court."
14. From the aforesaid observation made by the
Hon'ble Supreme Court, it can be said that an appellate court
must bear in mind in a case of acquittal, there is double
presumption in favour of the accused. Firstly, the presumption
of innocence is available to him under the fundamental principle
Patna High Court CR. APP (DB) No.875 of 2023 dt.11-12-2023
of criminal jurisprudence that every person is presumed to be
innocent unless he is proved guilty by competent court of law.
Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed
and strengthened by the Trial Court. Further, if two reasonable
conclusions are possible on the basis of the evidence on the
record, the appellate court should not disturb the finding of
acquittal recorded by the Trial Court.
15. Keeping in view of the aforesaid principles
laid down by the Hon'ble Supreme Court to the facts of the
present case, as discussed hereinabove, and examined, we are of
the view that the Trial Court has not committed any error while
passing the impugned order and, therefore, no interference is
required in the present appeal.
16. Accordingly, the appeal is dismissed.
(Vipul M. Pancholi, J.)
(Chandra Shekhar Jha, J.)
Sanjeet/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 14-12-2023
Transmission Date 14-12-2023
