Shrishti Narain Jha vs Bindeshwar Jha & Ors

Shrishti Narain Jha ..Appellant

Versus

Bindeshwar Jha and Ors. ..Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in these appeals is to the judgment of a Division Bench of the Patna High

Court directing acquittal of the respondents 1 to 9 who faced trial for alleged commission of

offences punishable under Section 396 of the Indian Penal Code, 1860 (in short the `IPC').

Questioning their acquittal the complainant has filed the appeal.

2. Learned II Additional Sessions Judge, Muzaffarpur, had directed conviction of the

respondents 1 to 9 and sentenced each to undergo imprisonment for life. On appeal High Court

directed acquittal.

3. Background facts in a nutshell as project by the prosecution are as follows:

The case of the prosecution, as disclosed in the Fardbayan (Exhibit-6) of informant

Shrishti Narain Jha (PW.7), in short, is that on night between 5.7.1981 and 6.7.1981, informant was sleeping along with his two brothers in the Baithka of his house. On one bed, he was sleeping alone

and on the other bed near his bed, his younger brothers Gopal Narain Jha (PW.4) and Naresh Narain

Jha (PW.6) were sleeping. At 12 O'clock about fourteen to fifteen dacoits, came to the house of

informant, entered the Baithka and started hurling lathis and when their lathis struck against Tatti of

Baithka, the informant woke up on hearing the strikings and he stood on his bed. One of the dacoits

ordered him to remain standing otherwise he would be shot dead. Informant, among the dacoits,

identified all the appellants and Dahaur Jha (since dead). Accused Navo Nath Mishra was carrying

a country made pistol, Bindeshwar Jha was armed with Tengari (axe) and Jeev Nath Mishra was

armed with a Garassa. Rest of the accused persons were carrying lathis, ropes and torches.

Accused Navo Nath Mishra fired two shot from his country made pistol causing injuries on the

thigh and body of Naresh Narain Jha (PW. 6) and when Gopal Narain Jha (PW.4) went running out

of the Baithka, dacoits, after surrounding him, assaulted him with lathis. Informant also ran out of

the house and went to the Darwaza of one Krishna Kant Jha (not examined) and raised hulla. While

leaving Baithka, he had heard the dacoits saying that "Sala ghar mein hoga" and some dacoits

entered the house and when on hearing cry of help of informant, nobody from his locality came, he

again returned to his house and found that dacoits were running away through the backdoor of his

house towards south. Mother of the informant raised hulla from the house that dacoits had killed

father of informant and when informant went inside his house, he found his father lying dead

beneath a Chowki with injuries on his neck caused by sharp edged weapons. From his mother, the

informant came to know that accused Bindeshwar Jha with Tengari and Jeev Nath Mishra with

Garasa had inflicted injuries on the neck and body of father of informant when he had tried to hide

beneath his Chouki and at that time accused Daya Nath Mishra, Bhai Lal Jhan, Navo Nath Mishra

and three to four others had surrounded his mother and had demanded keys from to prevent the

dacoits from assaulting her husband, she was also assaulted with lathis by dacoits. The dacoits took

away steel boxes carrying clothes, ornaments of silver and gold and a cash amount of rupees seven

thousand. The dacoits also snatched an earring and a necklace from the body of mother of

informant. About his wife, informant stated that she was also assaulted by dacoits with lathis. The amount of articles, taken away in dacoity, was about rupees forty thousand. The Fardbayan

(Exhibit-6) of informant was recorded at his house on 6.7.1981at about 6.30 a.m. by Sub Inspector

Radhika Raman Singh (PW.12).

On the basis of Fardbayan (Exhibit-6) of informant, formal first information report

(Exhibit-4) was drawn against all the appellants and co-accused Dahaur Jha under Section 396, IPC.

After investigation, police submitted chargesheet under Sections 147, 148, 149, 302, 323, 324, 380,

452 and 307 IPC against all the accused persons. Taking cognizance, the case was committed to the

Court of Sessions where charge under Section 396, IPC was framed against all the appellants and

they were put on trial because they denied the charge.

After investigation police submitted charge sheet in respect of offences punishable under

Sections 147, 148, 149, 392, 323, 324, 380, 452 and 307 IPC. However, the Sessions Court framed

charges under Section 396 against the accused persons. The accused persons pleaded innocence,

therefore, the trial was held. After trial, all the accused persons were found guilty under Section 396

IPC and were accordingly convicted and sentenced to undergo imprisonment for life.

High Court directed acquittal which is questioned by the informant.

The prosecution witnesses stated that they identified the appellants by a lantern. The High Court

found it highly improbable that they could identify such a large number of accused persons with the

light of a lantern. Though the investigating officer during investigation did not find any lantern or

sign of any lantern. The High Court ultimately concluded that the case of the prosecution is not

established by cogent evidence and, therefore, it would not be desirable to place reliance on the

prosecution evidence and accordingly directed acquittal.

4. The Trial Court noted that Naresh Narain Jha (PW6) and Gopal Narain Jha (PW4) were injured witnesses. It was the prosecution case that apart from the present appellant, the informant.

Amod Devi (PW1), Veena Devi (PW2), Gopal Narain Jha (PW4) and Naresh Narain Jha (PW6)

were the eye witnesses. PW1 is the mother of the PW2. PW2 is the wife of informant and two other

are is brothers. PW1 and PW2 claim to have seen injuries on the deceased. They stated that the

accused persons assaulted with Garasa and accused Bindeshwar Jha assaulted the deceased with

Tengari. The High Court noted that the evidence of the doctor (PW8) was that there was a large

number of incised wound found on the dead body of the deceased which are caused by sharp edged

weapon. It was found that the injuries were not possible by Garasa and Tengari. Though the Trial

Court noted that the prosecution version was not acceptable as regards the weapons used, much

importance was not attached except statement that no explanation is available in evidence of PWs1

and 2 regarding such injury. There was another aspect which the High Court noted to hold that the

prosecution case was not believable. It was the prosecution case that the appellant Shrishti Narain

Jha fired at PW4. The doctor did not find any firearm injury.

5. It is to be noted that the State has not questioned the acquittal and the informant has filed

the present appeal. The only stand taken by the appellant is that the eye witnesses version should

not have been discarded.

6. Learned counsel for respondent, on the other hand, supported the judgment of acquittal

submitting that the false case has been foisted because of previous enmity. It is further submitted

that the judgment of the High Court does not suffer from any perversity to warrant any interference.

7. The High Court has indicated in great detail the infirmities in the prosecution version

and has concluded that the prosecution version is not credible and cogent.

8. The evidence of Investigating Officer that he found a plank of door broken and fallen on the floor which is also against the evidence of PW.1 who has clearly said that the appellants had

made a hole in the plank of door of her room by Tengari and by inserting hand to that hole, opened

the latch of the door. This also does not support the case of prosecution regarding the manner in

which door of her room was opened. The Investigating Officer (PW12) in his evidence has stated

that he recorded the statements of PWs.1 and 2 on 7.7.1981 because on 6.7.1981 when he met them,

they were not in a position to give their statements because they were engaged in weeping. PW.2

has admitted that the police came on the next day of dacoity but on that day, her statement was not

recorded because she was weeping on that day and on the next day her statement and statement of

her mother-in-law were recorded. This has also created a very strong doubt to accept the evidence

of PWs.1 and 2 that they are eye witnesses to the occurrence. When PW.1 was in a position to give

the details of the occurrence to her son who is informant immediately after the occurrence, there

was no reason for her not to give her statement on the next day of occurrence when police had come

to her house. PWs. 1 and 2, said to be eyewitnesses to the occurrence, in their evidence, have stated

that they were also assaulted by dacoits and had received injuries but there is nothing on record that

like other injured persons, they were also examined by any doctor. The Investigating Officer

(PW12) does not say that on the next day in the morning when he visited the place of occurrence, he

found any injury on PWs. 1 and 2. Although he has said that he prepared injury certificate but has

not made it clear for whom such certificates were prepared by him. He, in his cross-examination,

has said that by the time, he reached the place of occurrence, injured Gopal Narain Jha (PW4) and

Naresh Narain Jha (PW6) had already been sent to hospital and he, after going to hospital, saw

injuries on their persons. The injuries certificates, prepared by him, may be for these two injured

persons and no definite opinion about the injury certificate, said to be prepared by him, can be given

in absence of naming the injured by him or in absence or bringing these injury certificates on

record. Amod Devi (PW1) has said that later one Bahuran Devi gave her a sum of Rs.320/-saying

that she found the money thrown on the bank of a river and on the next day, one Ram Master

informed that some boxes were lying in katai area which were brought by Budhan Sahni and others.

None of the persons, named above, were examined. The prosecution witnesses have claimed that they identified the appellants in the light of lantern but the investigating officer, during

investigation, did not find any latern or sign of lighting the lantern which usually appear in the

surrounding areas. Accused Bharat Lal Jha was not identified by PWs.1 and 2, accused Binod Jha

by PW.2 and accused Umesh Jha by PW6. Besides this, PWs.4 and 6 have added names of Ashok

Jha, Somendra Jha and Ram Ballabh Jha who are not among the accused persons. The medical

evidence showing that the death of deceased was homicidal and the evidence of investigating

officer who found blood-stains at the place of occurrence and some marks of violence on a wooden

box kept at the place of occurrence may suggest the factum of dacoity in the house of informant but

so far manner of dacoity and participation of accused in that dacoity is concerned, that appears quite

doubtful. The evidence of prosecution witnesses is that besides accused, there were some other

dacoits also with them who could not be identified. The possibility of false implication of appellants

in this case on account of long standing enmity utilizing the incident of docity cannot be relied out.

In this case, accused Vijay Jha and Binod Jha were examined under Section 313, Code of Criminal

Procedure on 31.3.1987 and 20.4.1987 respectively when their ages were estimated by the Court

below about nineteen years and twenty two years respectively. The occurrence is said to have taken

place in the night between 5th and 6th July, 1981. It means that at the time of occurrence the age of

accused Vijay Jha was about thirteen years, three months and age of appellant Binod Jha was about

sixteen years, two months. They both are brothers and accused Bindeshwar Jha is their another

brother. It looks very unnatural that the accused would go to commit dacoity in their neighbourhood

taking with them such minor and young boys as Vijay Jha and Binod Jha when they were sufficient

in number and accompanied by some other persons also. Besides this, age of accused Bhai Lal Jha

was estimated by Court on 31.3.1987 when he was examined under Section 313, Code of Criminal

Procedure as eighty years. The defence has brought on record a Voters' List (Exhibit-A) showing

that in this Voters' List which was received in the year, 1983, age of co-accused Dahaur Jha (since

dead) is recorded as seventy two years, since Dahaur Jha dead now so this document does not help

the case of any now but then accused Bhai Lal Jha, admittedly at the time of occurrence was aged

about seventy four years. So, we find that the accused include an old man aged about seventy four years as well as a boy aged about thirteen years and, as stated above, the accused are neighbours of

informant with whom the family of informant had long standing dispute.

9. The judgment of the High Court does not suffer from any infirmity. The appeal fail and are dismissed. ............

.........................J. (Dr. ARIJIT PASAYAT)

....................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, May 05, 2009