Shrishti Narain Jha Vs.
Bindeshwar Jha & Ors.  INSC 904 (5 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.501-502 OF 2003
Shrishti Narain Jha ..Appellant Versus Bindeshwar Jha and Ors. ..Respondent
Dr. ARIJIT PASAYAT,
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').
acquittal the complainant has filed the appeal.
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.
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.
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.
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.
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.
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,
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.
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.
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.
High Court has indicated in great detail the infirmities in the prosecution
version and has concluded that the prosecution version is not credible and
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.
The judgment of the High Court does not suffer from any infirmity. The appeal
fail and are dismissed.
.........................J. (Dr. ARIJIT PASAYAT)