Mahton Vs. State of Bihar  INSC 917 (9 December 1997)
PUNCHHI, M. SRINIVASAN
appellant was prosecuted under Section 302 I.P.C.
case of the prosecution was briefly as follows: On April 21, 1981 at about 7.00 P.M. the
appellant went to the shop belonging to the deceased Arjun Sao near his
residence and demanded a packet of cigarette from PW 4 the daughter of the
deceased. At that time PW 6, the wife of the deceased, PW 7.
wife of the brother of PW.6 PW 5, the son of the deceased and Pw 3, a resident
of nearby house were also present. When the appellant demanded a packet of
cigarette, PW 4 and PW 6 informed him that there was no cigarette in the shop.
The appellant used abusive language and made certain derisive remarks. The
deceased protected against the same. Immediately the appellant took our a
pistol and shot the deceased who fell down and died at the spot. PW 8, the
Investigation Officer came to the village at about 2.00 a.m. in connection with investigation, of another case on a
complaint lodged by the grand father of the appellant that there was dacoity in
the village by certain persons. At that time he was informed about the killing
of the deceased by Pw 7 whose statement was recorded by him.
appellant was not traceable for some time. Later a case was registered against
appellant denied the occurrence and claim that he was falsely implicated.
According to the appellant there was an attempt by certain persons to commit dacoity
in the house of his grand father and when there was a hue and cry, the dacoits
fired shots from there shot hit the deceased and was the cause of his death.
prosecution examined eight witnesses while the appellant examined two witnesses
in support of his case.
court of sessions at Nalanda opined that the charge against the appellant was
not proved beyond all reasonable doubts and he was therefore entitled to
benefit of doubt.
he was acquitted. On appeal by the State, the High Court at Patna reversed the judgment of the sessions
court and held that the appellant was guilty of committing an offence under
Section 302 I.P.C. The appellant was therefore convicted and sentenced to
undergo rigorous imprisonment for life. It is the judgment of the High Court
which is under challenge in this appeal.
Learned counsel for the appellant contends that the High Court should not have interferred
with the order of acquittal passed by the trial court in a much as the view
taken by the sessions judge was quite reasonable on the evidence on record. Our
attention is drawn to the judgment of this court in Dina Nath Singh v. State of
S.C. 1199 wherein this court held that where the view taken by the trial court
in acquitting the accussed is reasonably possible, even if the High Court could
have taken a different view, that is no ground for reversing the order of
Learned counsel for the appellant has taken us through the depositions of the
witnesses and in particular that of PW 1. The said witness claims to the
engaged in doctor's profession. According to him, he was called by PW 5, who
was accompanied by PW 3 and PW 7 to come and examine the deceased who had
received a bullet injury. According to the witness when he saw the deceased,
the latter was alive and told him that dacoits had fired at him. The argument
of learned counsel for the appellant is that the deceased was alive for quite
some time after he was injured by the gun shot and he died on the way to the
hospital. It is contended by learned counsel that DW 1 is an independent
witness and his version should be accepted. it is also submitted that the
member's of the family of the deceased had not made any complaint to the police
till 2.00 a.m. when PW 8 came to the village for
investigating another case on the basis of the report given by the grand father
of the appellant with reference to the dacoity in the village.
counsel has also placed reliance on the reasoning of the sessions judge and
submitted that there are material discrepencies and inconsistences in the
statements of the witnesses which made them totally unreliable.
contra, learned counsel for the respondent has submitted that the judgment of
the trial court is based on a palpable illegality in as much as the trial judge
has chosen to dis-believe the witnesses entirely on the basis of the contents
of the FIR which was recorded on the statement of PW 7 only. He has placed
reliance on the judgment of Betal Singh V. State of M.P. (1996) 8 SCC 205. The
court has held in that case that evidence of a witness cannot be impeached with
reference to the statements of other witnesses recorded under Section 161. It
has also been held in that case that the High Court's power in deposing of
appeals from conviction or acquittal are essentially the same and the appellate
court is free to come to any conclusion as to the credibility of the evidence
except when it depends upon the demeanour of the witnesses. It has also been
pointed out that if the view taken by the trial court is palpably wrong the
order of acquittal can be reversed.
Learned counsel for the respondent has pointed out that the sessions judge has
chosen to dis-believe all the prosecution witnesses on the only ground that the
facts stated by such witnesses were not set out n the Fard-beyan (Ext. 4) of
the informant (PW 7). The trial court has also made much of small and
immaterial discrepencies relating to the existence of lantern in the shop at
the time of occurrence and proceeded to hold that the appellant could not have
been identified by the witnesses in the absence of sufficient light. It is
submitted that according to the evidence of the witnesses the appellant was
standing very near them when he fired the pistol and that the appellant was
known to them for quite a long time as he was resident of a nearby house.
Learned counsel for the respondent has submitted that there is no error
whatever in the judgment of the High Court in accepting the evidence of the
five eye witnesses one of them being an independent witness. It is also pointed
out by him that DW 1 is a quack in the village and even a perusal of his
evidence shows that he is not speaking the truth. it is further pointed out
that there is absolutely no material to support the version put forward by the defence
regarding the alleged dacoity in the village on the date of occurrence.
According to learned counsel the complaint lodged by the grand father of the
appellant regarding the alleged decoity was deliberately made in order to
a perusal of the entire record we are inclined to accepted the view taken by
the High Court. It is quite evident that the version put forward by the defence
regarding the alleged dacoity is not proved in any manner by any acceptable
evidence. Significantly, the complaint lodged by the grand father of the
appellant was registered as CR Case No: 298 of 1981 under section 399 and 402
the complaint relating to the occurrence in this case is registered as CR Case
No. 297 of 1981 though it was lodged later according to PW 8. There is no
explanation for the same. The FIR in the CR Case No. 298 of 1981 has not been
proved before the court. A perusal of the depositions of DW 1 and DW 2 shows
that neither of them is speaking the truth.
is also no other acceptable evidence regarding the alleged dacoity. Both Courts
are therefore justified in rejecting the defence version of alleged dacoity.
time of occurrence was about 7.00 P.M. In
the second half of April, there would be sufficient light and it will not be so
dark as to prevent people from recognizing others who are already well known to
them. It is also common knowledge that generally in this country, people will
switch on the lights or light lamps in the absence of electric lights. The evidence
adduced by the prosecution that there was lantern in the shop of the deceased
was quite natural. The absence of reference to the same in the fardbayan of PW
7 does not have any significance. She might not have mentioned it as it is a
part of the daily routine and not an unusual feature. The trial court was in
error in making much of the omission of reference to burring of lamp in the
shop in the FIR and disbelieving the witness who spoke about it. The trial
court was certainly not entitled to use the FIR against witnesses who wee not
responsible for it.
The trial court had also overlooked the fact that the appellant was not a
stranger to the witnesses. He was living in practically the next house and the PWs
knew him for long. They would have had no difficulty in recognizing him at
twilight. As rightly pointed out by learned counsel for the respondent, the
trial court had chosen to disbelieve every eye witness on the ground that there
was no reference to a burning lamp in the FIR and Investigating Officer did not
find a lamp or lantern in the shop. There is no doubt that trial court was
The High Court has discussed in detail the evidence of every witness and
appreciated the same in the proper prospective. The High Court is fully justified
in reversing the conclusion of the trial court and setting aside the order of
find no merit in the appeal. It is dismissed.