Mithilesh Singh vs The State Of Bihar
2023 Latest Caselaw 752 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.670 of 2015
     Arising Out of PS. Case No.-98 Year-2008 Thana- NAUBATPUR District- Patna
======================================================

Mithilesh Singh Son of Late Janak Singh, Resident of Village - Shahar Rampur, P.S. - Naubatpur, District -Patna.

... ... Appellant Versus The State of Bihar

... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 538 of 2015 Arising Out of PS. Case No.-98 Year-2008 Thana- NAUBATPUR District- Patna ====================================================== Dhanesh Singh S/o late Janak Singh, R/o village Shahar Rampur, P.S. Naubatpur, District Patna.

... ... Appellant Versus The State of Bihar

... ... Respondent ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 670 of 2015) For the Appellant : Mr. Yogesh Chandra Verma, Sr. Advocate Mr. Dhananjay Kumar, Advocate Mr. Sunil Prasad, Advocate Mr. Adarsh Singh, Advocate For the Respondent : Mr. Bipin Kumar, APP (In CRIMINAL APPEAL (DB) No. 538 of 2015) For the Appellant : Mr. Rajesh Kumar, Advocate Mr. Prince Kumar, Advocate For the Respondent : Mr. Bipin Kumar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and HONOURABLE DR. JUSTICE ANSHUMAN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 13-02-2023

Heard the learned counsel for the appellants and learned

A.P.P. for the State.

Patna High Court CR. APP (DB) No.670 of 2015 dt.13-02-2023

2. The aforementioned criminal appeals arise out of same

judgment of conviction and order of sentence, hence they have

been heard together and are being disposed of by this common

judgment.

3. The criminal appeals have been preferred against the

judgment of conviction dated 06.06.2015 and the order of sentence

dated 09.06.2015 passed by the learned Additional Sessions Judge

II, Danapur, Patna in Sessions Trial No.230 of 2010 arising out of

Naubatpur P.S. case No.98 of 2008 corresponding to G.R. No. 871

of 2008, whereby and whereunder the appellants have been

convicted under sections 147, 148, 302/149 and 342 of the Indian

Penal Code, 1860 (hereinafter 'I.P.C.') and they have been

sentenced to undergo rigorous imprisonment for life with fine of

Rs.10,000/- each for offences under sections 302/149 of the I.P.C.

and they have been further sentenced to undergo rigorous

imprisonment of six months for offence under Section 147 of the

I.P.C., one year rigorous imprisonment for offence under Section

148 of the I.P.C. and three months rigorous imprisonment for

offence under section 342 of the I.P.C. All the sentences have been

directed to run concurrently.

4. The prosecution's case, as per the fardbeyan of informant

Geeta Devi recorded by S.I. Shri R.D. Pandey of Naubatpur P.S. Patna High Court CR. APP (DB) No.670 of 2015 dt.13-02-2023

on 24.03.2008 at 16:00 hours at the house of the informant, in

short, is that on the same day at about 1:00 p.m. while the

informant's son namely Pannu @ Rakesh Kumar was going to

poultry farm from his house after taking meal, in course thereof

when Pannu @ Rakesh Kumar reached in front of the house of

Mithilesh Singh, in the meantime co-villagers, namely, Mithilesh

Singh, Dhanesh Singh, Amresh Kumar @ Pintu, Tullu @ Rakesh

Kumar and Surendra Singh, variously armed with country made

pistols, surrounded the informant's son and thereupon the accused

Suresh Singh caught hold of him and the accused Mithilesh Singh

opened fire at him and got him wounded. It is further alleged that

the family members of the informant took her son to Patna for

better treatment. The cause of occurrence has been stated to be

dispute arising out of post panchayat election.

5. On the basis of aforesaid fardbeyan of informant Geeta

Devi, an F.I.R. bearing Naubatpur P.S. case No.98 of 2008 was

drawn up against five accused persons. After investigation, the

police submitted charge-sheet against the two accused persons

showing the accused Suresh Singh as dead and keeping the

investigation pending against the rest others, namely, Amresh

Singh @ Pintu, Rakesh @ Tullu and Umesh Singh. Then learned

A.C.J.M., Danapur after taking cognizance against the above Patna High Court CR. APP (DB) No.670 of 2015 dt.13-02-2023

named two accused persons on 28.01.2010 committed the case to

the Court of Sessions. Thereupon, charges were framed against

the appellants to which the appellants pleaded not guilty and

claimed to be tried.

6. During trial, the prosecution examined altogether nine

witnesses, namely, Geeta Devi (P.W.1-informant), Shashi Devi

(P.W.2), Munni Devi (P.W.3), Dr. Arbind Kumar Singh (P.W.4),

Krishna Murari Sharma (P.W.5), Rakesh Kumar (P.W.6), Tej

Narain Vishwas (P.W.7) Investigating Officer of the case, Dr.

Girish Kumar Sharan (P.W.8) and Bhavesh Kumar Dinkar (P.W.9).

In support of its case, the prosecution has produced exhibits as

Ext.2 (postmortem report), Ext.1/3 (fardbeyan of informant Geeta

Devi), Ext.3 (formal F.I.R.), Ext.4 (Inquest report). The defence

has also produced exhibits as Ext.A (signature of S.I. R.D. Pandey

on F.I.R.), Ext.A/1 (signature of witness Ranju Devi), Ext.D

(signature of Mithilesh Singh on complaint petition), Ext.C (true

copy of final report). Ext.B (formal F.I.R. of Naubatpur P.S. case

No.97/2008).

7. Learned counsel appearing for the appellants

submitted that the judgment of conviction suffers from several

infirmities that have been overlooked by the learned trial court and

therefore, the impugned judgment is not sustainable in the eyes of Patna High Court CR. APP (DB) No.670 of 2015 dt.13-02-2023

law. It was further submitted that the prosecution has miserably

failed to prove the manner of occurrence beyond the shadow of

reasonable doubts and that there are material contradictions in the

deposition of the prosecution witness PW1, who is the informant

of this case. In order to buttress this contention, the attention of the

court has been drawn towards the fardbeyan of the informant and

her deposition as a witness made before the learned trial court. It

has further been submitted that PW2, PW3, PW5 and PW6 are not

eye witnesses in the present case. It has also been vehemently

argued that the opinion given by PW4 the Doctor who conducted

the post mortem on the person of the deceased and also the opinion

given by the PW8 the surgeon who operated upon the deceased

(then injured) do not disclose anything about the nature of weapon

used in the commission of the alleged offence. Therefore, it is

contended that the findings of the learned trial court is bad in law,

wrong on facts, bereft of legal reasoning, devoid of merit and the

judgment of conviction is fit to be set aside.

8. Learned APP for the State, on the other hand, has

submitted that the judgment of conviction and order of sentence

under challenge requires no interference as the prosecution has

been able to prove the case beyond all reasonable doubts. From

the evidence adduced by the prosecution, guilt of the appellant is Patna High Court CR. APP (DB) No.670 of 2015 dt.13-02-2023

satisfactorily proved and there is no infirmity in the impugned

judgment of conviction and order of sentence of the learned trial

court.

9. After hearing the arguments advanced by the learned

counsels appearing for the parties and upon thorough examination

of the entire material available on the record, the following issues

arise for consideration in the present appeal :

(I) Whether the PW1, that is, the informant can be considered an eye witness to the alleged occurrence?

(II) Whether the non-recovery of the weapon alleged to be used in the course of occurrence or any other incriminating article will be fatal for the prosecution case, especially in an offence under the Arms Act?

(III) Whether the absence of any medical finding about the nature of weapon used and about the injury sustained by the deceased will make the case of the prosecution fall? (IV) Whether there is any other substantive evidence to hold that the prosecution has discharged the burden of proving the case beyond the shadow of reasonable doubts?

10. With reference to issue no. (I), from perusal of the

fardbeyan, it is evident that the informant (PW1) is conspicuously

silent regarding her presence at the alleged place of occurrence.

However, during the course of trial the PW1, states in paragraph

no. 5 of the examination-in-chief that while her son was going to

the poultry farm, she was behind her son (i.e. the deceased). This Patna High Court CR. APP (DB) No.670 of 2015 dt.13-02-2023

statement of the PW1 is in sharp contradistinction to her statement

made in paragraph no. 25 of the examination-in-chief where she

mentions that she was going to collect cowdung cake from the

verandah (dalan) at the time of the alleged occurrence. She further

states that she was going alone and that she did not reach the

poultry farm. Thereupon, the PW1 makes a distinct statement in

the latter part of the deposition that at the time of occurrence, her

son-in-law, namely, Krishna Murari Sharma (PW5) had also gone

with her son (deceased). However, this statement is negated in the

deposition of PW5 wherein he states that he had no information

about the incident as he had already left his in-laws' house at about

08:00 am, whereas the time of the alleged incident is 01:00 pm. It

is settled principle that the testimony of a person, who is an eye

witness to the incident, must not be dangling or self contradictory.

In criminal law, loose, contradictory and uncorroborated

statements cannot be relied upon, much less than forming the basis

of conviction. The statement of an eye witness must be free from

blemish and devoid of any ambiguity, uncertainty and loopholes.

In the present case, it is quite manifest that there are material

inconsistencies in the testimony of PW1 and the same also stands

contradicted by the testimony of other witnesses. At this juncture,

it is would be relevant to take note of the decision of the Hon'ble Patna High Court CR. APP (DB) No.670 of 2015 dt.13-02-2023

Supreme Court, in the case of Sunil Kumar Shambhudayal Gupta

and others versus state of Maharashtra (2010) 13 SCC 657,

wherein para no. 16 the following has been observed:

"The discrepancies in the evidence of eye witnesses, if found to be not minor in nature may be a ground for disbelieving and discrediting that evidence. In such circumstance, the witness may not inspire confidence if the evidence is found to be in conflict and contradictory to the other evidences and the statement already recorded. In such a case, it cannot be held that the prosecution proved its case beyond reasonable doubt."

Accordingly, this court is of the firm view that PW1 is not

an eye witness to the alleged incident and therefore, the issue

number (I) is decided in negative.

11. With reference to issue no. (II) and (III), it is relevant

to take note of the statements of the PW7 who is the investigating

officer of the case. During the trial, the PW 7 deposes that no

recovery of any weapon or any other incriminating article has

been made in the present case either from the place of occurrence

or from elsewhere. There is no specific mention as to whether any

arms were recovered from the house of the accused or not. Also

there is no mention of finding any blood marks on the alleged

place of occurrence. In paragraph no. 16 of the examination-in- Patna High Court CR. APP (DB) No.670 of 2015 dt.13-02-2023

chief, the PW7 specifically deposes that he did not find any object

worth mentioning on the place of occurrence.

So far the issue relating to absence of any medical finding

about the nature of weapon resulting in death of the deceased is

concerned, the depositions of the PW4 and PW8 assume

paramount importance. PW4 is the doctor who conducted

postmortem upon the person of the deceased whereas PW8 is the

surgeon who operated upon the body the injured victim (now

deceased). It has been mentioned by PW4 that no precise opinion

can be given about the nature of weapon used in the alleged

occurrence because of the prior surgical intervention done on the

person of the deceased. The PW8 further deposed that the

photocopy of the prescription of Rakesh Kumar @ Pannu

(deceased) shown by the prosecution before him during the trial

was neither in his writing nor in his signature. He further stated

that he attends Rajeshwari Hospital whenever any call comes and

that he has done surgery of many patients there who have received

bullet injury but cannot name them. As such, neither any reliance

can be placed on the testimony of PW8 nor is there any injury

report on the record on the basis of which the nature of weapon

used in the alleged occurrence can be ascertained. Patna High Court CR. APP (DB) No.670 of 2015 dt.13-02-2023

Considering the facts and circumstances of the case, such

non-recovery of any weapon or other incriminating article coupled

with absence of any medical opinion as to the nature of weapon

used in the alleged occurrence casts dark clouds of suspicion on

the case of the prosecution. In criminal law, there are three

essential requisites of any offence, viz. mens rea, actus reus and

the causative link. In order to convict the accused, in addition to

establishing mens rea and actus reus, the prosecution also has the

onus to establish the causality element, that is, the prosecution has

to prove that it was the act of the accused only that has resulted

into the actus reus. The element of causality establishes a live link

between the conduct of the accused and the actus reus. In the

present case, though the actus reus, i.e. death is apparent and an

undisputed fact, however, there is no material on the record to

establish the causative link. Accordingly, it cannot be said with

certainty that it is the appellants only that have caused the death of

the deceased. In absence of such live causative link, taking any

contrary view in the backdrop of the facts of this case will be

against the principles of fairness and justice. The court cannot take

a view against the established principles of criminal jurisprudence

that derive their authenticity from the grundnorm, the

Constitution.

Patna High Court CR. APP (DB) No.670 of 2015 dt.13-02-2023

Accordingly, the issue no. (II) and (III) are decided in the

affirmative.

12. With reference to issue no. (IV), upon perusal of the

case record and minute examination of the deposition of the

witnesses, it is apparent that the PW2, who is the sister of the

deceased, went to the alleged place of occurrence on hearing

gunshot sound whereupon she saw that her brother (deceased) had

fallen down and that people around were saying that Mithilesh

Singh (appellant) had shot upon him. PW3, who is also the sister

of the deceased, states in paragraph no. 1 of her deposition that

she heard people raising hulla and saying that appellant Mithilesh

Singh had shot upon the deceased. The rule of evidence as

stipulated in section 60 of the Indian Evidence Act, 1872 is :

"oral evidence must, in all cases, whatever, be direct; that is to say- if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it."

Accordingly, PW 2 and PW 3 cannot be considered to be

eye witnesses to the alleged occurrence for the reason that the

statements made by them do not find origin from what they had

actually witnessed from their ocular senses. Rather, their

statements stem from what they heard from others. As such, PW2

and PW3 are hearsay witnesses and their testimonies cannot be Patna High Court CR. APP (DB) No.670 of 2015 dt.13-02-2023

relied upon for the reason that hearsay evidence is not admissible

in the eyes of law.

The other witnesses viz. PW5 and PW6 have been declared

hostile during the course of trial. The PW5, who is the son-in-law

of the informant of this case, says that he has no information about

the incident and he has not given any statement before the police.

On the date of the occurrence, he had already left the in-laws'

house at about 08:00 am, whereas the time of occurrence has been

alleged to be 01:00 pm. The PW6 who is also the son-in-law of

the informant, deposes that on the date of the occurrence, he had

returned back to his house in the morning and he received

information at his house that his brother-in-law namely Rakesh

Kumar @ Pannu had been shot. He further mentions that he has

no knowledge as to who had shot upon the deceased. Accordingly,

there is no concrete evidence to suggest the presence of the

appellants at the place of occurrence at the time of the alleged

incident.

13. Every trial is a voyage of discovery in which truth is the

ultimate quest. In a case where no direct evidence is available, the

onus lies on the prosecution to prove its case by establishing that

the chain of circumstantial evidences is so connected together that

they lead to only one inference, i.e. the guilt of the accused. Any Patna High Court CR. APP (DB) No.670 of 2015 dt.13-02-2023

hiatus in the connecting chain of circumstances will prove to be

fatal for the prosecution.

In the case of Hanumant versus State of Madhya Pradesh

(AIR 1952 SC 343), three judge bench of the Hon'ble Supreme

Court observed :

"It is well to remember that in cases where the evidence in of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

The Division Bench of the Hon'ble Supreme Court, in the

case of Subramanya versus State of Karnataka, (Criminal

appeal no. 242 of 2022), in para no. 49, has made following

observation:

"In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference Patna High Court CR. APP (DB) No.670 of 2015 dt.13-02-2023

with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused."

Accordingly, in view of the discussions made above, the

issue no. (IV) is decided in the negative.

14. In light of the above-mentioned legal position and on

the basis of the findings arrived at on the issues formulated above,

we are of the considered opinion that the conviction of the

appellants in both the appeals is not sustainable in the eyes of law

and the prosecution has failed to prove its case beyond all

reasonable doubts.

15. Therefore, both the appeals stand allowed and the

judgment of conviction dated 06.06.2015 and the order of sentence

dated 09.06.2015 passed by the learned Additional Sessions Judge

II, Danapur, Patna in Sessions Trial No.230 of 2010 arising out of

Naubatpur P.S. case No.98 of 2008 corresponding to G.R. No.871

of 2008 are set aside.

15. Since the appellant Mithilesh Singh of Criminal Appeal

(DB) No. 670 of 2015 is in custody, he be released from the jail Patna High Court CR. APP (DB) No.670 of 2015 dt.13-02-2023

custody forthwith, if not wanted in any other case. The appellant

Dhanesh Singh of Criminal Appeal (DB) No.538 of 2015 is on

bail, therefore, he is discharged from the liabilities of his bail

bonds.

(Sudhir Singh, J)

(Dr. Anshuman, J)

Pankaj/-

AFR/NAFR                NAFR
CAV DATE
Uploading Date          15.02.2023
Transmission Date       15.02.2023