Kallu Khan & Anr. vs The State Of Bihar

Heard learned counsel for the appellants and learned Additional Public Prosecutor appearing on behalf of the State.

Since both the appeals arise out of the same judgment of conviction and order of sentence and involve common questions of fact and law, they have been taken up together and are being disposed of by this common judgment.

Both these appeals have been preferred against the judgment of conviction and order of sentence dated 21.04.2018 passed by the learned Additional Sessions Judge-VI, Ara, Bhojpur in Sessions Trial No. 656 of 2015 arising out of Jagdishpur P.S. Case No. 358 of 2014, whereby the appellants have been convicted for the offences punishable under Sections 147, 148, 323/149 and 447/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for two years under Section 147 of the Indian Penal Code, rigorous imprisonment for two years under Section 148/149 of the Indian Penal Code, rigorous imprisonment for six months under Section 323/149 of the Indian Penal Code and simple imprisonment for one month under Section 447/149 of the Indian Penal Code. All the sentences have been directed to run concurrently.

The prosecution case, in brief, is that on 12.12.2014 at about 10.00 A.M., the informant, namely Saroj Kumar, was standing at his door and was proceeding along with his father, namely Vikrama Singh, for purchasing a cow. At that time, these appellants, along with others, allegedly came armed with lathi, iron rod and hockey sticks and started assaulting the informant and his family members. It is alleged that when the informant's father and his younger brother, namely Dilip Kumar, came to save him, they were also assaulted. It is further alleged that the appellants assaulted the informant and his family members with the aforesaid weapons and that a gold chain worn by the informant and cash amount were also taken away.

On the basis of the fard beyan, Jagdishpur P.S. Case No. 358 of 2014 was instituted. During investigation, the police examined the witnesses, inspected the place of occurrence and obtained the injury reports of the injured persons. Upon completion of investigation, charge-sheet was submitted against the appellants for the offences under Sections 147, 148, 149, 323, 341, 447 and 379 of the Indian Penal Code. The learned trial court, after framing of charge and upon conclusion of trial, convicted the appellants for the offences punishable under Sections 147, 148, 323/149 and 447/149 of the Indian Penal Code.

In this case, in order to establish the charges, the prosecution examined eight witnesses. P.W. 1, namely Mukul Kumar, and P.W. 3, namely Surendra Singh @ Surendra Yadav, were examined as witnesses to the occurrence; however, both these witnesses did not support the prosecution case in material particulars and were declared hostile. P.W. 2, namely Sona Lal Yadav, is also a witness to the occurrence who stated about the assault having taken place between the two sides, but his evidence does not fully support the prosecution version regarding the participation of all the appellants. P.W. 4, namely Saroj Kumar, is the informant as well as an injured witness, who supported the prosecution case and narrated the manner in which the occurrence took place and the assault allegedly made upon him and his family members. P.W. 5, namely Maheshwar Prasad Singh, is the Investigating Officer, who deposed regarding the institution and investigation of the case, inspection of the place of occurrence, examination of the witnesses and submission of charge-sheet. P.W. 6, namely Dr. Janardan Sharma, is the doctor who examined the injured persons and proved their respective injury reports. P.W. 7, namely Vikrama Singh, and P.W. 8, namely Dilip Kumar, are also injured witnesses, who supported the prosecution version regarding the occurrence and the assault upon them.

Learned counsel for the appellants submits that the learned trial court has committed serious error in appreciating the evidence on record. It is submitted that the prosecution witnesses have made material improvements and contradictions regarding the manner of occurrence and the specific role attributed to the appellants. It is further submitted that the independent witnesses have not supported the prosecution case and that the medical evidence merely establishes that the injured persons had sustained simple injuries caused by hard and blunt substance, but does not establish the identity of the assailants. It is also submitted that the prosecution has failed to establish the ingredients of the offences beyond reasonable doubt and that the appellants are entitled to acquittal.

Learned Additional Public Prosecutor, on the other hand, has supported the judgment of conviction and submitted that the evidence of the injured witnesses is sufficient to establish the occurrence and the participation of the appellants. It is submitted that minor discrepancies in the evidence of the witnesses ought not to affect the otherwise consistent prosecution case.

Having considered the rival submissions and carefully perused the evidence available on record, this Court finds that the occurrence is alleged to have taken place on 12.12.2014 at about 10.00 A.M. The prosecution has relied principally upon the evidence of the informant Saroj Kumar (PW-4), his father Vikrama Singh (PW-7) and Dilip Kumar (PW-8). All three are admittedly injured persons. Their evidence, therefore, requires careful scrutiny, particularly because the prosecution has attributed participation to six appellants. PW-4 Saroj Kumar, in his examination-in-chief, has narrated the occurrence and has attributed assault to the appellants. However, during cross-examination, material aspects of the prosecution case have been brought on record. The witness has also admitted the existence of a counter-case arising out of the incident. The evidence further discloses that a separate case concerning the death of Sayad Khan had been instituted in connection with the same occurrence and that the parties were litigating against each other. PW-7 Vikrama Singh and PW-8 Dilip Kumar have also supported the prosecution case in their examination-in-chief. However, their evidence, when considered in its entirety, does not furnish a consistent and unimpeachable account regarding the individual participation of each of the six appellants. The evidence of these witnesses contains discrepancies regarding the weapons used, the sequence of assault and the particular appellant responsible for causing the respective injuries.

It is significant that PW-1 Mukul Kumar and PW-3 Surendra Singh @ Surendra Yadav, who were examined by the prosecution as witnesses to the occurrence, did not support the prosecution case in material particulars and were declared hostile. The evidence of the independent witnesses, therefore, does not provide the necessary corroboration to the testimony of the injured witnesses. The medical evidence also does not advance the prosecution case to the extent required for recording a conviction. PW-6 Dr. Janardan Sharma examined Dilip Kumar, Saroj Yadav and Vikrama Singh on 12.12.2014. The injuries found on all the three persons were simple in nature and were caused by hard and blunt weapons. The doctor has not identified any particular assailant. The medical evidence, thus, establishes only the fact that the three persons had sustained injuries; it does not establish that such injuries were caused by any particular appellant. More importantly, the prosecution has sought to fasten liability upon all the six appellants with the aid of Section 149 of the Indian Penal Code. In order to sustain such conviction, the prosecution was required to establish beyond reasonable doubt that the appellants constituted an unlawful assembly having a common object and that the acts complained of were committed in prosecution of such common object. Mere presence of the accused at the place of occurrence, particularly when their individual participation is not established by cogent and consistent evidence, would not by itself be sufficient to sustain the conviction.

On a careful appreciation of the evidence, this Court finds that there are material inconsistencies in the testimony of the prosecution witnesses. Though the fact that some occurrence had taken place and that the informant and two others had sustained injuries cannot be completely ruled out, the more important question is whether the prosecution has been able to establish beyond reasonable doubt that the present six appellants were the persons who, in furtherance of their common object, committed the offences alleged against them. The answer to the said question has to be in the negative. The independent witnesses have not supported the prosecution case. The injured witnesses are interested witnesses and their testimony, particularly with regard to the individual role of the appellants, suffers from material discrepancies. The medical evidence does not connect any particular appellant with the injuries. The existence of a counter-case arising out of the same occurrence also assumes significance while appreciating the evidence of the witnesses who are admittedly inimical to the appellants.

It is a settled principle of criminal jurisprudence that suspicion, however strong, cannot take the place of proof. The prosecution is required to establish its case beyond reasonable doubt and the burden never shifts upon the accused. Where two views are reasonably possible on the evidence, the one favourable to the accused has to be adopted.

In the present case, the evidence available on record does not inspire such confidence as would justify sustaining the conviction of all the six appellants. The learned trial court, in the considered opinion of this Court, has placed undue reliance upon the statements of the injured witnesses without adequately appreciating the material contradictions and the absence of independent corroboration.

Consequently, the prosecution has failed to prove beyond reasonable doubt the charges against the appellants.

Accordingly, the judgment of conviction and the order of sentence dated 21.04.2018 of the learned Additional Sessions Judge-VI, Ara, Bhojpur passed in Sessions Trial No. 656 of 2015 arising out of Jagdishpur P.S. Case No. 358 of 2014 are hereby set aside.

The appellants, above named, are acquitted of the charges by extending to them the benefit of doubt and are discharged from the liabilities of their respective bail bonds in connection with Jagdishpur P.S. Case No. 358 of 2014.

Both the appeals are, accordingly, allowed.

Pending interlocutory application(s), if any, shall stand disposed of.