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PETITIONER: RAJENDRA MAHTON

       Vs.

RESPONDENT: STATE OF BIHAR THR. LEGALREMEMBRANCER GOVT. OF BIHAR, PATNA

DATE OF JUDGMENT:       09/12/1997

BENCH: M.M. PUNCHHI, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Srinivasan, J.      The appellant  was prosecuted  under Section 302 I.P.C. The 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. the 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. The appellant was not traceable for some time.  Later a case was registered against him. 2.   The 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. 3.   The prosecution  examined  eight  witnesses  while  the appellant examined  two witnesses  in support  of his  case. The 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. Consequently 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

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imprisonment for life.  It is the judgment of the High Court which is under challenge in this appeal. 4.   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 Bihar A.I.R. 1980 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 acquittal. 5.   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. Learned 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. 6.   Per 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. 7.   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

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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 create evidence. 8.   On 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 I.P.C. but 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. There is  also no  other acceptable  evidence regarding  the alleged dacoity.   Both  Courts are  therefore justified  in rejecting the defence version of alleged dacoity. 9.   The 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. 10.  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 palpably wrong. 11.  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 acquittal. 12.  We find no merit in the appeal.  It is dismissed.