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PETITIONER: RAMESH PRASAD THAKUR & ANR. STATE OF BIHAR ETC.

       Vs.

RESPONDENT: RAMCHANDRA SINGH , BISHWANATH RAI & ORS. ETC.

DATE OF JUDGMENT:       03/09/1997

BENCH: G. T. NANAVATI, S. P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT: Present:              Hon’ble Mr. justice G.T. Nanavati              Hon’ble Mr. Justice S.P. Kurdukar A.K. Jha,  Pankaj Kalra,  S.K. Singh,  B.K. Sharma and Vijay Kumar, advs. for the appellants R.K. Jain,  K.D. Prasad,  A.N. Bardiyar  and M.P. Jha, Advs. with him for the respondents.                       J U D G M E N T The following Judgment of the Court was delivered. State of Bihar V. Bishwanath Rai & Ors.                             WITH               CRIMINAL APPEAL NO. 393 OF 1986 NANAVATI, J.      These three  appeals, first  two by  the State of Bihar and the  other by  injured witness  Ramesh Prasad Thakur and Shanti Devi  widow of  deceased, Bacha  Thakur, are directed against there  judgement and  order of  acquittal dated  4th September, 1985  passed by  the Patna High Court in Criminal Appeal Nos. 506 and 569 of 1981.      As many  as 16  accused were  tried for  the murder  of Bacha Thakur  and for  causing injuries to Ram Prasad Thakur and Chandra  Mohan Thakur. The trial Court acquitted accused Nos. 13  to 16. It held that the other accused had formed an unlawful assembly and in prosecution of their common object, caused the  death of Bacha Thakur. Ram Chandra Singh, one of the respondents in these appeals was convicted under Section 302 IPC  and others  were convicted  under Section  302 read with Section 149 IPC. They were also convicted under Section 323  read   with  Section  149  IPC.  Accused  Nos.2  to  12 challenged  their  conviction  and  sentence  by  preferring criminal Appeal No. 506 of 1981 and Ram Chandra Singh did so by preferring  a separate  appeal, viz., Criminal Appeal No. 569 of  1981 in  the Patna High Court. Both the appeals were heard together  and disposed  of by  a common  judgment. The High Court  allowed  both  the  appeals  and  acquitted  the accuse.      The State  feeling aggrieved  applied for special leave of this  Court to appeal against all the 12 accused who were

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convicted by  the trial  Court but  acquitted  by  the  High Court. This  Court, however,  Injured witness, Ramesh Prasad Thakur and  Shanti Devi, widow of deceased Bacha Thakur have filed Criminal  Appeal No.  393 of  1986, with leave of this Court against  the acquittal  of accused  No. 1, Ram Chandra Singh only.      In  order  to  prove  its  case,  the  prosecution  had examined  8   eye-witnesses.  The  trial  Court  found  them reliable  but  though  their  evidence  was  consistent,  on reappreciation  of  the  entire  evidence,  the  High  Court considered it  unsafe to  rely upon  their evidence. It held that (i)  their evidence  is not consistent with the medical evidence regarding  the injury  caused to the deceased: (ii) all eye-witnesses  belong to  village Patahi  which is  at a distance of  3 kms. from Muzaffarpur town where the incident took place and their explanation for their presence near the place of  occurrence is not convincing; (iii) the fard-bayan though stated  to have  been  recorded  at  11.30  p.m.  was possibly not  recorded till  2.00 p.m.  on the next day; and (iv) the  eye-witness have  suppressed the  real  manner  in which the incident took place as they have failed to explain how a serious injury was received by one of the accused, Ram Nath prasad  Gupta. The  learned counsel  for the appellants challenged the  finding recorded  by the High Court that the fard-bayan of  injured witness,  Ramesh Prasad Singh was not recorded till  2.00 P.m.  on the  Next day. as incorrect. On scrutiny of  the evidence  of Ram  Jiwan Singh (PW-13), Sub- Inspector of  police who  had recorded  the fard-bayan,  the Deputy   Superintendent    of   police   (PW-16)   and   the Superintendent  of   Police  (DW-1)   and  also  the  Injury Certificate (Exh.4)  of Ramesh  Prasad Thakur  and the fard- bayan (Exh.A)  of accused,  Ram Nath  Gupta @  Mohan  Prasad Gupta, we  find that  the  fard-bayan  of  injured  witness, Ramesh Prasad Thakur was really recorded at about 11.30 p.m. on 24.5.1977.  The fard-bayan  of  injured  witness,  Ramesh Prasad Thakur  was really  recorded at  about 11.30  p.m. on 24.5.1977. The  fard-bayan   which was recorded between 8.00 a.m. and  2.00 P.M.  on recorded  by the  High Court is thus clearly wrong.  However, we  find no  substance in the other contentions  raised   by  the   learned  counsel   for   the appellants. It  was submitted  that  the  evidence  of  eye- witness being consistent, ought to have been accepted by the high Court.  What the  High Court  has pointed  out is  that though  the  evidence  of  the  eye-witness  appears  to  be consistent inter-se,  is not consistent with the real manner in which  the incident had taken place. Even though the eye- witnesses have  deposed that two shots were fired by accused Ram Chandra  Singh and  both  had  caused  injuries  to  the deceased, the  evidence of  the doctor  is  that  they  were possibly caused  by only on shot. All the eye-witnesses have stated that  accused Ram  Chandra Singh  had fired two shots from his  revolver from a distance of about 6 to 9 feet. The medical evidence  shows that there was blackening around the wounds. This Circumstance indicates that in all probability, the injuries  were caused  to the  deceased with a different type of  weapon. As  regards the  injuries of  PW-4  Chandra Mohan, the  eye-witnesses have  stated that they were caused by three  of the  accused with  pharsas and  lathis but  the medical evidence discloses that he had not received a single injury which  could have  been caused by a pharsa. Realising this inconsistency, all the witnesses have made an identical improvement  in  their  evidence  by  stating  that  he  was assaulted by  accused Chandresh Rai with back portion of his pharsa. Thus  they have  made a deliberate attempt to change their  version  to  make  it  consistent  with  the  medical

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evidence. Moreover,  as rightly  observed by the High Court, all the  eye-witnesses are  residents of  village Patahi and they belong  to the  rival  political  party.  so  also,  as rightly  submitted  by  the  learned  counsel  for  the  had attacked the  deceased and the persons with him, then others could not have escaped unhurt and the two injured would have received more  injuries. The  two injured had received three injuries each but they were minor injuries. None of them was caused by a weapon with a sharp edge.      The High  Court after  taking  into  consideration  all these aspects  found it  unsafe to rely upon the evidence of eye-witnesses. Once  it found that the eye-witnesses had not given the  correct  account  of  the  manner  in  which  the incident had  taken place,  the High  Court was justified in discarding their  evidence  even  though  it  was  otherwise consistent. The learned counsel for the appellants could not point out  any infirmity  in the  other findings recorded by the high Court.      We, therefore,  see no  reason to  interfere  with  the order of  acquittal passed by the High Court and accordingly dismiss  these   appeals.  Bail  bonds  are  ordered  to  be cancelled.