Patna High Court
Prabhash Yadav vs The State Of Bihar on 28 November, 2024
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.3371 of 2019
Arising Out of PS. Case No.-103 Year-2013 Thana- KARJAIN District- Supaul
======================================================
1. Prabhash Yadav Son Of Jamun Yadav @ Jamun Prasad Yadav Resident Of
Village-Mansapur, P.S.-Karjain, District-Supaul.
2. Rupesh Yadav Son Of Bindeshwari Prasad Yadav Resident Of Village-
Mansapur, P.S.-Karjain, District-Supaul.
3. Upendra Yadav @ Upendra Narayan Yadav Son Of Late Punit Lal Yadav
Resident Of Village-Mansapur, P.S.-Karjain, District-Supaul.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. P.N. Shahi, Sr. Advocate
Mr. Mritunjay Kumar, Advocate
Mr. Anshul, Advocate
For the Respondent/s : Mr. Jharkhandi Upadhyay, APP
For the Informant : Mr. Parmeshwar Mehta, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL JUDGMENT
Date : 28-11-2024
Heard the learned senior counsel for the appellants; Shri
P.N. Shahi, learned APP for the State; Shri Jharkhandi Upadhyay
and the learned counsel for the informant; Shri Parmeshwar
Mehta.
2. This appeal is directed against the judgment and
conviction dated 20.07.2019 and order of sentence dated
22.07.2019
passed in Sessions Trial No. 110 of 2015 (arising out
of Karjain P.S. Case No. 103 of 2013) by the learned Additional
District and Sessions Judge-IV, Supaul by which the appellants
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have been convicted for offences under Sections 323, 307, 34 of
the Indian Penal Code and have been sentenced to undergo
rigorous imprisonment for 10 years and fine of Rs. 20,000/- by
each of the appellants and failure to pay the fine, have been
directed to undergo six months further simple imprisonment for
the offence under Section 307 of Indian Penal Code and further
R.I. for 6 months for the offence under Section 323 of the Indian
Penal Code.
3. As per the F.I.R. of Karjain P.S. Case No. 103 of 2013
dated 30.12.2013 lodged by Mahendra Prasad Yadav/P.W-2 (his
signature on fardbeyan having been exhibited as Ext.1), while the
informant was sitting at his darwaja at village Hariraha on
29.12.2013 at about 11.30 a.m., Prabhash Yadav/appellant No. 1,
Rupesh Yadav/appellant No. 2, Jamun Prasad Yadav, Bindeshwari
Prasad Yadav, Upendra Yadav @ Upendra Narayan
Yadav/appellant No. 3, Vikash Kumar Yadav along with 4-5
persons who were variously armed came and started abusing.
Initially they assaulted the informant (P.W.2) with fists and slaps.
On hulla being raised, the son of the informant, Vijay Kumar
Yadav/P.W.-3 and Sanjay Kumar Yadav came running to save the
informant. Prabhash Kumar Yadav/appellant No. 1 is alleged to
have tried to assault with Khanti on head but due to stopping of
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assault by hand, the right hand became injured. On the exhortation
of Jamun Yadav and Bindeshwari Yadav, Upendra Yadav/appellant
No. 3 entered into the house of the informant and took away
articles and box containing 8 aana gold and silver chain worth Rs.
4200/- and also cash of Rs. 500/-. Thereafter, the informant was
taken to Referral Hospital, Raghopur where the fardbeyan of the
informant/P.W.-2 was recorded at 7.30 p.m. of 29.12.2013.
4. The police after investigation submitted charge-sheet
vide charge-sheet No. 08 of 2014 dated 31.05.2014 for the offence
under Sections 341, 323, 324, 307, 504, 34 of Indian Penal Code
against the appellants and exonerated co-accused Jamun Prasad
Yadav, Bindeshwari Prasad Yadav and Vikash Yadav. Charges were
framed under sections 323/34, 324/34, 307/34, 341/34 and 504/34
of the Indian Penal Code on 01.09.2015 against the appellants and
as they denied the charges, they were put on trial.
5. Prosecution, in order to prove its case, examined the
following witnesses:-
(i). Agam Lal Yadav (P.W.1),
(ii). Mahendra Prasad Yadav P.W.2 (the informant).
(iii).Vijay Kumar Yadav (P.W.3).
(iv). Gunsagar Yadav (P.W.4).
(v). Uman Yadav (P.W.5).
(vi). Prem Prakash Arya (P.W.6)
(vii). Dr. Dev Narayan Yadav (P.W.7) (the doctor)
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6. The signature of informant on the fardbeyan was
marked as Ext.-1 and injury reports as Ext.-2, 2/1 and 2/2. The
defence claimed innocence and false implication. The defence
examined one witness namely Shambhu Kumar Suman as D.W.1
and exhibited F.I.R. of Karjain P.S. Case No. 102/2013 as Ext.-A,
order of D.C.L.R. in Mutation Appeal No. 61/14 as Ext.-B, Order
of D.C.L.R. in Mutation Appeal No. 62/14 as Ext.-B/1 and
certified copy of Title Suit No. 01/18 pending before Sub- Judge-1,
Birpur as Ext.-C (with objection).
7. P.W. 6/Prem Prakash Arya, the S.H.O. only submitted
charge-sheet after receiving the report of Superintendent of Police.
The police has not recorded the further statement of the informant.
The injured witness namely Sanjay Prasad Yadav, who is said to
have sustained injuries on his head, has not been examined as
witness by the prosecution and for which, prosecution has not put
forward any explanation for his non-examination. The witnesses
have materially improved their version. The FIR refers to only one
injury caused by Prabhas Yadav to either Vijay Kumar Yadav or
Sanjay Kumar Yadav on right hand. P.W. 2, in his deposition,
stated that Prabhas Yadav assaulted Sanjay Yadav on his hand and
Rupesh assaulted Vijay Yadav by Khanti. P.W. 3/Vijay Kumar
Yadav claims to have been assaulted by Khanti on left shoulder
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and right hand. His injury report shows bruise over left shoulder
and right forearm.
8. The injury of Sanjay Yadav is caused by sharp object
on skull but in the FIR, there is no allegation of assault by any
sharp weapon. The allegation of assault is by Khanti which is a
hard blunt weapon. If the prosecution wanted to suggest that a
Khanti was used as a sharp-edged weapon then a clarification from
the witness was required in terms of judgment in the case of Hallu
& Ors V/s State of Madhya Pradesh, (1974) 4 SCC 300.
9. P.W. 1/Agam Lal Yadav has been examined twice by
the Police. Firstly after 13 days of the occurrence i.e. on
11.01.2014 and secondly on 21.01.2014 i.e. after 23 days of the
occurrence. P.W. 1 introduces the allegation of assault on Sanjay
by farsa given by Bindeshwari Yadav. P.W. 3/Vijay Kumar Yadav
the injured eyewitness, only talks about injury on him and none
other. P.W. 4/Gunsagar Yadav has not claimed to be an eyewitness
to the occurrence. P.W. 5/Uman Yadav has been declared hostile.
10. In view of material improvements, non- examination
of I.Os. who conducted the investigation of the case, gravely
prejudices the case of the prosecution. From the materials
available on record, it is apparent that neither there is allegation to
constitute offence under section 307 of the IPC is available nor the
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same is made out. The place of occurrence is doubtful. The charge
places the place of occurrence at village Mansapur, P.S.- Karjain
whereas the F.I.R. states the village Hariraha as place of
occurrence. P.W.1/Agam Lal Yadav is a resident of village
Mansapur and he claims the occurrence is of his village.
Informant/P.W.-2 and Vijay Kumar Yadav/P.W.-3 state about
village Hariraha as the place of occurrence.Vijay Kumar Yadav /
P.W-3 explains that Hariraha and Mansapur are two villages
which are 100 mtrs apart from each other.
11. There is an admitted land dispute between the
parties. The facts and circumstances mentioned above and material
on record of the case clearly proves the false implication of
accused due to previous enmity on account of land dispute.
12. The learned senior counsel for the appellants has
relied upon various judgments of Hon’ble Supreme Court in the
case of Anand Ramachandra Chougule V/s Sidarai Laxman
Chougala & Ors; (2019) 8 SCC 50, Takhaji Hiraji V/s Thakore
Kubersing Chamansing & Ors; (2001) 6 SCC 145 and the case of
Sharad Birdhichand Sarda V/s State of Maharashtra; (1984) 4
SCC 116.
13. Learned APP for the State and the learned counsel
for the informant have supported the prosecution case and have
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said that there may be many contradictions in the statements of the
witnesses, but the witnesses on material points have supported the
prosecution case. They have submitted that the impugned
judgment is a very reasoned order/ judgment after considering the
oral and documentary evidences including the injury report.
Therefore, the same should not be interfered with.
14. I have heard and considered the submissions of the
parties.
15. Examination of accused under Section 313
Cr.P.C:-
Although the appellants were questioned about causing
hurt to Mahendra Prasad Yadav and Vijay Kumar Yadav, but
interestingly they were not questioned anything about Sanjay
Kumar Yadav who is also said to have received injuries as per
F.I.R. and as per the evidence of the prosecution witnesses.
16. With regard to place of occurrence, as per the
charges which were framed against the appellants it was
specifically mentioned that the occurrence took place at village
Mansapur, however, in the fardbeyan of P.W.2 (Ext.1), he claims
to have been sitting at his darwaja at village Hariraha, P.S.-
Karjain, District- Supaul and the prosecution witnesses have also
deposed about the occurrence having taken place at village
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Hariraha. The non-examination of the First and Second
Investigating Officers of the case have seriously prejudiced the
defence of the appellants inasmuch as had those persons (first and
second I.Os) been examined, it could have been culled out from
their cross-examination that the place of occurrence as stated in the
FIR and in the evidence of the informant/P.W.-2 and his son
(P.W.3) is not established specially in the backdrop of the charge
having been framed stating the occurrence to have taken place in
village Mansapur. Such cross-examination would have been made
on the strength of paragraph no. 18 of the case diary wherein it has
specifically been mentioned that the place of occurrence is at
village Mansapur in the field of appellant No. 1/Prabhash Kumar
Yadav.
17. The Hon’ble Supreme Court in the case of Sharad
Birdhichand Sarda V/s State of Maharashtra; (1984) 4 SCC 116
has held as follows:-
“145. It is not necessary for us to
multiply authorities on this point as this
question now stands concluded by several
decisions of this Court. In this view of the
matter, the circumstances which were not
put to the appellant in his examination
under Section 313 of the Criminal
Procedure Code, 1973 have to be
completely excluded from consideration.”
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18. In view of the pronouncement of Hon’ble Supreme
Court when no question was put to the appellants under Section
313 of the Cr.P.C., with regard to Sanjay Kumar Yadav. The
evidence with regard to causing injury to Sanjay Kumar Yadav has
to be excluded completely.
19. As per the prosecution case and as per the charges
framed, the place of occurrence is village Mansapur. The
informant/P.W-2 in his fardbeyan (Ext. 1) claims to have been
sitting at his darwaja at village Hariraha, P.S. -Karjain, District-
Supaul. The witnesses have also deposed that the place of
occurrence is village Hariraha.
20. P.W-1/Agam Lal Yadav in his evidence has said that
he was sitting at his darwaja in his village at Karjain and the
occurrence took place at village Hariraha. The place of occurrence
cannot be seen from his home. With regard to the date of
occurrence, he has said that the occurrence took place on
29.11.2013 at about 03:00 P.M.
21. P.W-2/Mahenda Prasad Yadav has said that he was
sitting at his darwaja i.e. at village Hariraha and the occurrence
took place there only. With regard to the date of occurrence, he has
said that the occurrence took place at 11:30 A.M. two years back
when the evidence was being recorded. P.W-2 has said that there
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was no litigation going on between the prosecution side and the
defence side in the court of D.C.L.R.
22. P.W-3/Vijay Kumar Yadav has said that occurrence
took place on 24.12.2013 at 11:30 A.M. He is resident of village
Hariraha and he said that the occurrence took place at his
darwaja. P.W-2 has also said that they had won the dispute
pending in the court of D.C.L.R. He says that the appellant no.
2/Rupesh Yadav had assaulted him with Khanti, Prabhash
Yadav/appellant no. 1 assaulted Sanjay Kumar with farsa.
23. P.W-4/Gun Sagar Yadav is hearsay witness. He has
said that the occurrence took place in the morning at about 8-9
A.M. He has also said that Vijay, Sanjay, Rupesh Yadav/appellant
no. 2, Prabhash Yadav/appellant no. 1, Mehndra were injured in
the occurrence, but he has not seen the occurrence.
24. P.W-5/Uman Yadav has not supported the
prosecution case.
25. P.W-6/Prem Prakash Arya is one of the Investigating
Officers who has filed the charge-sheet. P.W-7 is the doctor who
has examined the injured and has given the injury report.
The injury report reads as follows:-
(1) On Vijay Kumar P.W.-3 (i) Bruise over right fore arm 3″X
3″ front
(ii) Bruise over left shoulder joint 3″ X 3″ front.
(iii) Complain of pain whole body.
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All the above injuries are simple in nature caused by hard
and blunt weapon.
Age within 12 hours.2) Injuries on Mahendra Prasad Yadav
(informant) (P.W.2) Ext.-2/1): (i) A swelling over left shoulder bruise 4″ X
3″ front,
Simple in nature caused by hard and blunt weapon. Age
within 12 hours.
(3) Injury on Sanjay Kumar Yadav (not examined) (Ext. 2/2):
(i) left side scalp back below occipital region. Incised wound
4″ X 1/2″ X bone deep.
(ii) pain back left side with bruise 4″ X 3″ mid position
back.
Injury No. 1 is caused by sharp cutting weapon and nature
of injury is simple.
Injury No. (ii) simple and caused by hard and blunt weapon.
26. Though the charges have been framed saying that the
occurrence took place at village at Mansapur, but the witnesses
have said that the occurrence took place at Hariraha.
27. The submissions of the learned senior counsel for the
appellants is that if the I.Os. would have been examined, then they
would have brought on record the statement of the I.Os. with
regard to the place of occurrence as the place of occurrence as per
the I.Os. in para-18 of the case diary is village Mansapur in the
field of appellant no. 01/Prabhash Kumar Yadav.
28. The Hon’ble Supreme Court in the case of State of
Bihar V/s Munna Pandey, 2023 SCC OnLine Pat 7619 has held
as follows:-
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53. Whenever a Court of Sessions passes
a sentence of death, the proceedings are to be
compulsorily submitted to the High Court and the
sentence of death is not to be executed unless it is
confirmed by the High Court. Section 367 Cr. P.C.
clothes the High Court with the power to direct further
inquiry to be made or additional evidence to be taken,
if while dealing with the Reference, the High Court is
of the view that further inquiry ought to be made into
or additional evidence taken upon any point bearing
on the guilt or innocence of the convicted person. It
must then make such inquiry or take such evidence
itself or direct it to be made or taken by the Court of
Sessions. It is within the powers of the High Court to
either confirm the sentence or annul the conviction
and acquit the accused person.
54. This power has to be exercised
diligently. There cannot be any question about the
width of this power.
55. The entire case record was before the
High Court as an appeal is a continuation of the Trial
of the accused on the same set of evidence.
Precisely for this reason, the High Courts have been
given powers to take fresh evidence, if so desired.
The High Court while dealing with the Reference has
to satisfy itself as to whether a case beyond
reasonable doubt has been made out against the
accused persons for the infliction of the penalty of
death. The proceedings before the High Court, in
Reference, therefore, are in the nature of reappraisal
and re-assessment of the entire facts and law so that
the High Court is satisfied on the materials about the
guilt or innocence of the accused persons.
56. This duty being cast upon the Court in
dealing with Reference under Section 366 Cr. P.C., it
would only be a travesty of justice if the High Court
does not consider the proceedings in all its aspects
and arrives to a conclusion on the materials,
independently of the view expressed by the Sessions
Judge. While doing so, the High Court would only be
assisted by the opinion expressed by the learned
Sessions Judge, but under the provisions of the law
referred to above, it is for the High Court to come to
an independent conclusion of its own. [Refer to
Jumman v. State of Punjab (AIR 1957 SC 469);
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Rama Shankar Singh @ Ram Shankar Roy v. State
of West Bengal (AIR 1962 SC 1239) and Bhupendra
Singh v. State of Punjab (AIR 1968 SC 1438)].
57. The Trial Court had made no efforts to
ensure that adequate questions were put to the
witnesses to elicit the truth.
58. The High Court, in Appeal and in
Reference, fell in the same error.
59. When the attention of P.Ws. 2 and 3
were drawn to a particular aspect of the matter,
namely, the appellant having called the deceased to
his house and having been seen locking his door on
the next day and which suggestion was denied; the
same questions ought to have been put to the
Investigator for proving the contradiction. The Trial
Court should have woken up from the slumber. The
Trial Court was definitely not awake.
60. The impact was an unfair Trial to the
appellant.
61. In an adversarial system of Trial, the
Presiding Officer of a Criminal Court is not to remain
a mere spectator or a recording machine. He has to
be an active participant in the Trial by evincing
intelligence and active interest by putting questions to
witnesses in order to ascertain the truth. after all, a
good umpire also decides whether the parties are
playing foul. Reticence of a Judge may not always be
a virtue to be extolled, more so, when under his nose,
injustice occurs or there could be a possibility of Trial
not being conducted in a fair manner.
62. The role of a Judge, especially in
Criminal Courts, has been debated enough and many
similes have been suggested. Is he to assume the
role of a referee in a football match or of an umpire in
a cricket match? Is he required to drop the mantle of
a Judge and assume the robe of an Advocate? Can
he put on his gloves and go against a witness whom
he suspects to be making wrong statement?
63. All these doubts have now been
cleared.
64. Robust judging is the response to the
cry of justice. The time honoured presumption of
innocence of persons accused of heinous offences
cannot be relaxed, yet at the same time, the principle
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cannot be used as a “convenient shibboleth” to
subvert the true course of justice.
65. A Judge in a Criminal Court, is not for
nothing, provided with all the tools. It is but
lamentable that those tools are not used.
66. In the preset case, those tools have not
been used at all.
67. Out of the several powers available
with the Trial Court, one is Section 165 of the Indian
Evidence Act, 1872.
68. Section 165 of the Indian Evidence Act,
1872 is extracted hereinbelow for ready reference:–
“165. Judge’s power to put
questions or order production.– The Judge
may, in order to discover or to obtain proper
proof of relevant facts, ask any question he
pleases, in any form, at any time, of any
witness, or of the parties, about any fact
relevant or irrelevant; and may order the
production of any document or thing; and
neither the parties nor their agents shall be
entitled to make any objection to any such
question or order, nor, without the leave of the
Court, to cross-examine any witness upon any
answer given in reply to any such question :
Provided that the Judgment must be based
upon facts declared by this Act to be relevant,
and duly proved : Provided also that this
section shall not authorize any Judge to
compel any witness to answer any question, or
to produce any document which such witness
would be entitled to refuse to answer or
produce under sections 121 to 131, both
inclusive, if the questions were asked or the
documents were called for by the adverse
party; nor shall the Judge ask any question
which it would be improper for any other
person to ask under section 148 or 149; nor
shall he dispense with primary evidence of any
document, except in the cases hereinbefore
excepted.”
69. The whole purpose of producing
evidence in Court is : (a) to find out the truth of what
actually occurred and (b) a Trial is not a game or
contest to be won or lost by the number of witnesses
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called but they are to be assessed for their quality
and credibility. And if the Trial Court sees it not
happening, he must use his powers under Section
165 of the Indian Evidence Act, 1872.
70. The powers of Section 165, as can be
noted, is very vast and unrestricted in putting any
question he pleases, in any form, at any time, to any
witness or to parties, about any fact, relevant or
irrelevant, in order to discover the relevant facts.
Even if any question by the Court under Section 165
of the Indian Evidence Act, 1872 crosses in the realm
of irrelevancy, it would not transgress beyond the
contours of powers of the Court. No questions could
be raised about the impact of the question put to a
witness by the Court under Section 165 of the Indian
Evidence Act, 1872. [Refer to State of Rajasthan v.
Ani @ Hanif, (1997) 6 SCC 162].
71. In fact, in the present case, we have
noticed that the cross-examination of P.W. 2 had to
be postponed because she broke down a number of
times while answering the questions. This should
have prompted the Trial Court to have suavely put
such questions to her which would have brought out
the truth.
72. The offence which the Trial Court was
trying, no doubt, diabolical. However, it would be
equally distressing if an innocent person is convicted
only because of the moral compass that a 10 year old
girl has been raped and killed, showing utmost
depravity and suspicion against the appellant.
Suspicion after all, as has rightly been explained by a
jurist, is a sea without a shore and anybody who
takes a voyage in that sea is rendered rudderless and
without a compass.
73. This, perhaps, struck the Supreme
Court and, therefore, the police papers were referred
to.
74. A question now arises whether any
adverse interference against prosecution can be
drawn on the basis of the statement of the witnesses
before the police during the course of investigation,
as doing so would be to qualify such statements
before the police to be put in the class of “evidence”
as defined under Section 3 of the Indian Evidence
Act, 1872.
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75. This aspects has to be seen from a
different angle altogether.
76. We have already noted that when there
was no positive reaction of the Trial Court as also the
High Court while dealing with the Reference even
when a denial was obtained by the defense from
P.Ws. 1 and 3 about a crucial fact which could have
proved to be pivotal for deciding the innocence or
guilt of the accused and when no such question was
put to the Investigator for duly proving such
contradiction, that the Supreme Court became
doubtful whether the records have been perused by
the Trial Court or even the High Court.
77. There is no difficulty in looking at the
police papers in order to clear the doubts. The only
difficulty is whether such statement could be used as
an evidence for drawing any adverse inference
against a witness or for contradicting them.
78. Even though the issue has been dealt
with in a number of cases with the position of law
having been explained without any doubt, we would
refer to the provisions contained in Sections 161 and
162 of the Cr. P.C. alongside the provisions contained
in Section 145 of the Indian Evidence Act, 1872.
79. Section 161 of the Cr. P.C. gives the
power to a police Officer making an investigation to
examine orally any person who is acquainted with the
facts and circumstances of the case that is under
investigation and such person is bound to answer
truly all questions relating to such case put to him
other than the questions, the answer to which would
incriminate him. The answer so given by the person
may be reduced into writing and could also be
recorded by audio-video electronic means.
80. There are certain checks, especially
with respect to the statement of a woman against
whom the offences under Sections 354, 354-A to D,
376-A to E or Section 509 of the I.P.C. is alleged to
have been committed, in which case, the statement
shall be recorded only by a woman police Officer or
any other woman Officer. How such statements
recorded under Section 161 are to be be used in a
Trial, if at all it is used? There is a complete embargo
of such statements before the police to be signed by
the maker. It is for this reason that it has been
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ordained under Section 162 Cr. P.C. that no such
statement made before the police during the course
of investigation would be used for any other purpose
except as provided in that section, at any enquiry or
Trial. If a prosecution witness is called in a Trial, any
part of his statement could be used by an accused for
contradicting him, but it could be done only in the
manner provided by Section 145 of the Indian
Evidence Act, 1872. If any part of such statement is
so used, the attention of the maker has to be drawn
to that statement.
81. Section 145 of the Indian Evidence Act,
1872 reads as follows:–
“145. Cross-examination as to
previous statements in writing.- A witness
may be cross-examined as to previous
statements made by him in writing or reduced
into writing, and relevant to matters in question,
without such writing being shown to him, or
being proved; but, if it is intended to contradict
him by the writing, his attention must, before
the writing can be proved, be called to those
parts of it which are to be used for the purpose
of contradicting him.”
82. Thus, without such statement of the
witness being shown to him and the same having
been proved, it cannot be used for contradicting him.
83. In the present case, the Supreme
Court has looked into the police papers to find out the
earlier version of the prosecution witnesses. This was
only when the Supreme Court found that a fair Trial
has not been handed over to the appellant because
of inadequate cross-examination in view of specific
statement made by the witnesses during
investigation. For this reason, the case has been
remanded for a reappraisal.
84. Under such circumstances, can we suo
motu look into such statements and use it against the
witnesses for the purposes of contradicting them?
85. With the bar under Section 162 of the
Cr. P.C. and the procedure prescribed under Section
145 of the Indian Evidence Act, 1872, it would be
difficult to do so.
86. Even if the Trial Court would have put
questions to the witnesses with reference to their
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
18/33
earlier statement before the police by employing the
provisions contained in Section 165 of the Evidence
Act, then also, compulsorily, the attention of the
witnesses to such previous statements had to be
drawn.
87. In Tara Singh v. The State, 1951 SCC
903, an issue was raised whether the evidence
recorded by the Committal Magistrate under the 1898
Code could have been used by the Trial Court for
drawing any adverse inference, solely on the basis of
such recorded statement by the Committal
Magistrate, where no opportunity was given to the
accused to cross-examine the witnesses. Justice
Vivian Bose authoring the judgment pointed out the
difference of judicial opinion regarding the issue.
88. Section 288 of the 1898 Code provided
that the evidence recorded by the Committing
Magistrate in the presence of an accused could be
treated as an evidence for all purposes, but subject to
the provisions of the Indian Evidence Act, 1872.
There was one line of reasoning prevalent that time
that Section 145 of the Indian Evidence Act, 1872
was not attracted because that section only related to
previous statements and writing which are to be used
for the purpose of contradiction alone. The other line
of reasoning, which was approved by Justice Bose,
was that there could not be any exception to any
provision in the Evidence Act and the application of
Section 145 of the Evidence Act, 1872, therefore,
could not be excluded, even it be with respect to an
evidence recorded by the Committal Magistrate under
the Code. Thus, in that case, since reliance was
placed on an evidence which did not pass the
procedural test of Section 145 of the Indian Evidence
Act, 1872, the same was not approved and a re-trial
de novo was ordered.
89. In Raghunandan v. State of U.P.,
(1974) 4 SCC 186, the Supreme Court has referred to
a judgment in Emperor v. Lal Miya, AIR 1943 Cal 521
and has held that any statement of a witness
recorded by the police during investigation cannot be
used for any purpose other than one mentioned in
Section 162 of the Cr. P.C.; but this prohibition applies
only to the parties to the proceedings and does not
operate against the powers of the Court, when it
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
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considers the testimony of a witness to be necessary.
The Supreme Court went on to explain that the ban
imposed by Section 162 Cr. P.C. against the use of
statement of a witness recorded by the police during
investigation, though may be sweeping and wide but
at the same time, it would not curtail the powers of a
Court under Section 165 of the Evidence Act, 1872 to
put any question to a witness in order to discover or
obtain proper proof of relevant facts. The first and
second proviso to Section 165 of Evidence Act, 1872
make it very clear that it would not be tramelled by
the ban of Section 162 of Cr. P.C. or else, it would
have been stated so by the Legislature under Section
162 of the Cr. P.C. Section 162 of Cr. P.C. was
enacted much after Section 165 of the Indian
Evidence Act, 1872. But then also, unless the
attention of the witness is not drawn to his/her earlier
statement, the same cannot be used for any purpose.
[Also refer to Dandu Lakshmi Reddy v. State of A.P.,
(1999) 7 SCC 69.]
90. In V.K. Mishra v. State of Uttarakhand,
(2015) 9 SCC 588, the Supreme Court has fully
explained the interplay of Sections 161 and 162 of the
Cr. P.C. and Section 145 of the Indian Evidence Act,
1872. The relevant paragraphs from the judgment are
being quoted of for the sake of completeness:
15. Section 161 CrPC titled
“Examination of witnesses by police” provides
for oral examination of a person by any
investigating Officer when such person is
supposed to be acquainted with the facts and
circumstances of the case. The purpose for
and the manner in which the police statement
recorded under Section 161 CrPC can be used
at any trial are indicated in Section 162 CrPC.
Section 162 CrPC reads as under:
“162. Statements to police not to
be signed : Use of statements in evidence.
–(1) No statement made by any person to a
police Officer in the course of an investigation
under this Chapter, shall, if reduced to writing,
be signed by the person making it; nor shall
any such statement or any record thereof,
whether in a police diary or otherwise, or any
part of such statement or record, be used for
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
20/33any purpose, save as hereinafter provided, at
any inquiry or trial in respect of any offence
under investigation at the time when such
statement was made:
Provided that when any witness is
called for the prosecution in such inquiry or trial
whose statement has been reduced into writing
as aforesaid, any part of his statement, if duly
proved, may be used by the accused, and with
the permission of the court, by the prosecution,
to contradict such witness in the manner
provided by Section 145 of the Indian Evidence
Act, 1872 (1 of 1872); and when any part of
such statement is so used, any part thereof
may also be used in the re-examination of such
witness, but for the purpose only of explaining
any matter referred to in his cross-examination.
(2) Nothing in this section shall be
deemed to apply to any statement fa ling within
the provisions of clause (1) of Section 32 of the
Indian Evidence Act, 1872 (1 of 1872), or to
affect the provisions of Section 27 of that Act.
Explanation.–An omission to state
a fact or circumstance in the statement referred
to in sub-section (1) may amount to
contradiction if the same appears to be
significant and otherwise relevant having
regard to the context in which such omission
occurs and whether any omission amounts to a
contradiction in the particular context shall be a
question of fact.”
16. Section 162 CrPC bars use of
statement of witnesses recorded by the police
except for the limited purpose of contradiction
of such witnesses as indicated there. The
statement made by a witness before the police
under Section 161(1) CrPC can be used only
for the purpose of contradicting such witness
on what he has stated at the trial as laid down
in the proviso to Section 162(1) CrPC. The
statements under Section 161 CrPC recorded
during the investigation are not substantive
pieces of evidence but can be used primarily
for the limited purpose : (i) of contradicting
such witness by an accused under Section 145
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
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of the Evidence Act; (i) the contradiction of
such witness also by the prosecution but with
the leave of the Court; and (ii) the re-
examination of the witness if necessary.
17. The court cannot suo motu
make use of statements to police not proved
and ask questions with reference to them
which are inconsistent with the testimony of the
witness in the court. The words in Section 162
CrPC “if duly proved” clearly show that the
record of the statement of witnesses cannot be
admitted in evidence straightaway nor can be
looked into but they must be duly proved for
the purpose of contradiction by eliciting
admission from the witness during cross-
examination and also during the cross-
examination of the investigating Officer. The
statement before the investigating Officer can
be used for contradiction but only after strict
compliance with Section 145 of the Evidence
Act that is by drawing attention to the parts
intended for contradiction.
18. Section 145 of the Evidence Act
reads as under : (It has already been extracted
before).
19. Under Section 145 of the
Evidence Act when it is intended to contradict
the witness by his previous statement reduced
into writing, the attention of such witness must
be called to those parts of it which are to be
used for the purpose of contradicting him,
before the writing can be used. While recording
the deposition of a witness, it becomes the
duty of the trial court to ensure that the part of
the police statement with which it is intended to
contradict the witness is brought to the notice
of the witness in his cross-examination. The
attention of witness is drawn to that part and
this must refect in his cross-examination by
reproducing it. If the witness admits the part
intended to contradict him, it stands proved
and there is no need to further proof of
contradiction and it will be read while
appreciating the evidence. If he denies having
made that part of the statement, his attention
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
22/33
must be drawn to that statement and must be
mentioned in the deposition. By this process
the contradiction is merely brought on record,
but it is yet to be proved. Thereafter when
investigating Officer is examined in the court,
his attention should be drawn to the passage
marked for the purpose of contradiction, it will
then be proved in the deposition of the
investigating Officer who again by referring to
the police statement will depose about the
witness having made that statement. The
process again involves referring to the police
statement and culling out that part with which
the maker of the statement was intended to be
contradicted. If the witness was not confronted
with that part of the statement with which the
defence wanted to contradict him, then the
court cannot suo motu make use of statements
to police not proved in compliance with Section
145 of the Evidence Act that is, by drawing
attention to the parts intended for
contradiction.”
91. But then, what happens when such
power has not been exercised by the Trial Court and
even in Reference, the High Court has not used its
power under Section 367 of the Cr. P.C.?
92. Can the previous statement of the
witnesses be now looked into?
93. This, thus, has put us in a quandary.
94. Do we remand the case to the Trial
Court for again examining the witnesses or would it
be more appropriate, keeping in mind that a lot of
time has elapsed, that we exercise the powers under
Section 367 of the Cr. P.C. and ourselves take
additional evidence upon the issues bearing upon the
guilt or innocence of the appellant?
95. The statement made by the witnesses
before the Investigator has been extracted by the
Supreme Court under its exceptional and wide
reservoir of powers.
96. The witnesses would, either in the
event of re-examination by the Trial Court, admit it or
deny it. In case they admit, then they stand
contradicted, which contradiction would be proved by
putting the same question to the Investigator. In the
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
23/33
event of their accepting to have made such
statement, such contradiction would stand proved. In
no case would any other situation arise even if the
matter is remanded to the Trial Court.
97. Though in a diferent context, but which
would be very apt to the fact situation of this case, it
has been held by the Supreme Court in State of M.P.
v. Bhooraji, (2001) 7 SCC 679 that normally “a de
novo Trial” should be the last resort and that too only
when such a recourse becomes so desperately
indispensable that it would be necessary to order for
it. It should be limited to the extreme exigency to
avert a “failure of justice” which, otherwise, would not
be achieved. “Any omission or illegality in the
procedure which does not afect the core of the case
may not be a ground for ordering a de novo Trial. In
cases of de novo Trials, there is always a possibility
of serious impact on the roster of the Trial Courts
which are otherwise crammed with dockets and
hardship of many persons who would have taken all
the troubles at their disposal to reach out to the Court
in the frst instance and having deposed their version
in that case. To them and the members of the public,
the re-enactment of the whole labour might give the
impression that law is more pedantic than pragmatic.
after all, law is not an instrument to be used for
inflicting sufferings on the people but for the process
of justice dispensation.”
98. This occurrence is of the year 2015. In
case of remand, the mother and the sister of the
victim would be required to be called to the witness
stand again. They would suffer the same travails
which they had earlier. The might be subjected to
ridicule or perhaps ostracization. The sister of victim
at that time was 16 years old. She may have been
married with a family of her own. Such harrowing
experience once again, in our estimation, would do
more harm than gain.
99. In Rahul v. State of Delhi, Ministry of
Home Affairs, (2023) 1 SCC 83, the Supreme Court,
after having quoted the observations of Chinnappa
Reddy, J. in Ram Chander v. State of Haryana,
(1981) 3 SCC 191, that for a criminal Court to be an
efective instrument in dispensing justice, the
presiding Judge must put questions to the witnesses
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
24/33
in order to ascertain the truth, and then having found
in the facts of the case that the material prosecution
witnesses were not adequately examined and cross-
examined and the Trial Court behaved like a passive
umpire, came to the conclusion that the
appellant/accused was deprived of his right to have a
fair trial, apart from the fact that truth also could not
be elicited by the Trial Court, and thus acquitted the
accused.
100. We also have noted that there are,
even without looking into the earlier statements of the
witnesses, several glaring lapses in the appreciation
of already existing evidence. The prosecution
witnesses, through their own deposition, have
rendered themselves unworthy of complete reliance.
29. In view of the aforesaid judgment, this Court can
look into the case diary for the aforesaid limited purpose. From the
aforesaid discussions, it appears that the place of occurrence has
not been proved by the prosecution beyond reasonable doubt.
30. Discrepancy in the manner of occurrence:- While
the informant (P.W.2) in his fardbeyan (Ext.1) has claimed that
while he was sitting at his darwaja on 29.12.2013 at about 11.30
A.M., the accused persons including the appellants came and
assaulted the informant. However, the informant (P.W.2) in
paragraph No. 1 of his examination-in-chief has stated differently
that while he was sitting at his darwaja, the Harwaha came and
told him that the accused persons were not letting his field being
ploughed. In other words, the place of occurrence appears not the
darwaja of the informant but the so-called field of the informant
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
25/33
which is disputed in view of the order of D.C.L.R. (Ext.-B) in
mutation proceeding being in favour of the appellants.
31. While P.W. 1/Agam Lal Yadav claimed that he went
to the field situated east to the house of Mahendra Yadav
(informant) where there was hulla, Bindeshwari Yadav snatched
farsa and committed assault. Since the aforesaid P.W. 1 happens to
be Samdhi of the informant, specific suggestion was put to him
regarding giving of false evidence on account of being relative of
the informant which he denied. The other witnesses have given
different version of the occurrence and assault. P.W. 2 has stated
that Prabhash assaulted Sanjay Yadav on his forehead but caused
injury on his hand while Vijay Yadav was assaulted by Rupesh
(appellant No. 2) by Khanti. On the other hand, P.W. 3/Vijay
Kumar Yadav has stated that all the accused persons started
assaulting his father whereafter Rupesh (appellant No. 2) assaulted
him on hand and shoulder. Appellant No. 1/Prabhash Yadav
according to him, assaulted Sanjay Yadav with farsa on his head.
Interestingly, P.W. 3/Vijay Kumar Yadav in paragraph No. 5 of his
cross-examination has admitted that when there was fight going on
between his father and others, he was in the courtyard of his house
and reached the house after 5-10 minutes.
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
26/33
32. The informant and one of his son who is injured i.e.
P.W. 2 and P.W. 3 have not explained the injury sustained by the
accused persons including the appellants. It is only one witness i.e.
P.W. 4/Gun Sagar Yadav who stated that at about 8-9 A.M., while
he was having his meal and came out on hearing hulla and found
altercation having taken place wherein Vijay/P.W. 3, Sanjay (not
examined), Rupesh/appellant No. 2, Prabhash/appellant No. 1 and
Mahendra/P.W. 2 received injuries and all of them were taken to
Simrahi hospital for treatment. However, in cross-examination, the
said witness said that he has not seen said occurrence with his
eyes.
33. Non-examination of material witnesses i.e. 1st and 2nd
Imvestigating Officers of the case and the alleged injured Sanjay
Kumar Yadav, (injury report Ext. 2/2) have caused serious
prejudice to the case of the appellants.
34. A bare perusal of the evidence led on behalf of the
prosecution and the defence clearly demonstrates that neither the
place of occurrence is properly proved meaning thereby as to
whether the occurrence took place at village Hariraha at the
darwaja of the informant (P.W.2) or at village Mansapur in respect
to which charge was framed and in the case diary, particularly in
paragraph No. 18 thereof, it is clearly mentioned that occurrence
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
27/33
took place in the field belonging to the appellant No. 1/Prabhash
Kumar Yadav at village Mansapur.
35. Similarly, the manner of occurrence creates doubt
about the veracity of the prosecution case and there is no
explanation as to why Sanjay Kumar Yadav (one of the sons of the
informant) who is alleged to have received injuries was not
examined as prosecution witnesses causing serious prejudice to the
appellants.
36. There is also dispute with regard to time of
occurrence inasmuch as P.W. 1/Agam Lal Yadav has stated that the
occurrence is of 29.11.2013 at 3 P.M., P.W. 2 and P.W. 3 have
stated that the occurrence took place on 29.12.2013 at about 11.30
A.M., while P.W 4 while not disclosing the date of occurrence has
stated that the occurrence took place at about 8-9 A.M., and that
too about one year prior to his deposition (which was recorded on
9.3.2016).
37. All the injuries on the informant and his sons were
found to be simple in nature and in any case from the allegation,
no case under Section 307 I.P.C. is made out.
38. The prosecution side having failed to explain the
injury sustained by the appellants. The prosecution by their
conduct shown that they have not given the correct version of the
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
28/33
occurrence and furthermore, they having not taken any steps with
regard to co-accused Jamun Prasad Yadav, Bindeshwari Prasad
Singh and Vikash Yadav for sending up for trial clearly
demonstrates the falsity of the prosecution case and as such, no
case under Section 323/34 is made out against the appellants.
39. Though from the evidence of P.W-4, it appears that
some of the appellants had sustained injuries. The prosecution has
not explained the injuries sustained by the accused persons.
40. The Hon’ble Supreme Court in the case of Mohar
Rai & Anr V/s State of Bihar, 1968 SCC OnLine SC 49 has held
as follows:-
6. The trial court as well as the High Court
wholly ignored the significance of the injuries found on the
appellants. Mohar Rai had sustained as many as 13
injuries and Bharath Rai 14. We get it from the evidence of
PW 15 that he noticed injuries on the person of Mohar Rai
when he was produced before him immediately after the
occurrence. Therefore the version of the appellants that
they sustained injuries at the time of the occurrence is
highly probablised. Under these circumstances the
prosecution had a duty to explain those injuries. The
evidence of Dr Bishun Prasad Sinha (PW 18) clearly
shows that those injuries could not have been self-inflicted
and further, according to him, it was most unlikely that they
would have been caused at the instance of the appellants
themselves. Under these circumstances we are unable to
agree with the High Court that the prosecution had no duty
to offer any explanation as regards those injuries. In our
judgment the failure of the prosecution to offer any
explanation in that regard shows that evidence of the
prosecution witnesses relating to the incident is not true or
at any rate not wholly true. Further those injuries
probablise the plea taken by the appellants.
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
29/33
41. The Hon’ble Supreme Court in the case of Takhaji
Hiraji V/s Thakore Kubersing Chamansing & Ors; (2001) 6
SCC 145 has held as follows:-
19. So is the case with the criticism levelled by the
High Court on the prosecution case finding fault therewith for
non-examination of independent witnesses. It is true that if a
material witness, who would unfold the genesis of the incident
or an essential part of the prosecution case, not convincingly
brought to fore otherwise, or where there is a gap or infirmity
in the prosecution case which could have been supplied or
made good by examining a witness who though available is
not examined, the prosecution case can be termed as
suffering from a deficiency and withholding of such a material
witness would oblige the court to draw an adverse inference
against the prosecution by holding that if the witness would
have been examined it would not have supported the
prosecution case. On the other hand if already overwhelming
evidence is available and examination of other witnesses
would only be a repetition or duplication of the evidence
already adduced, non-examination of such other witnesses
may not be material. In such a case the court ought to
scrutinise the worth of the evidence adduced. The court of
facts must ask itself — whether in the facts and
circumstances of the case, it was necessary to examine such
other witness, and if so, whether such witness was available
to be examined and yet was being withheld from the court. If
the answer be positive then only a question of drawing an
adverse inference may arise. If the witnesses already
examined are reliable and the testimony coming from their
mouth is unimpeachable the court can safely act upon it,
uninfluenced by the factum of non-examination of other
witnesses. In the present case we find that there are at least
5 witnesses whose presence at the place of the incident and
whose having seen the incident cannot be doubted at all. It is
not even suggested by the defence that they were not present
at the place of the incident and did not participate therein. The
injuries sustained by these witnesses are not just minor and
certainly not self-inflicted. None of the witnesses had a
previous enmity with any of the accused persons and there is
apparently no reason why they would tell a lie. The genesis of
the incident is brought out by these witnesses. In fact, the
presence of the prosecution party and the accused persons in
the chowk of the village is not disputed. How the vanity of the
Thakores was hurt leading to a heated verbal exchange is
also not in dispute. Then followed the assault. If the place of
the incident was the chowk then it was a sudden and not
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
30/33premeditated fight between the two parties. If the accused
persons had reached their houses and the members of the
prosecution party had followed them and opened the assault
near the house of the accused persons then it could probably
be held to be a case of self-defence of the accused persons
in which case non-explanation of the injuries sustained by the
accused persons would have assumed significance. The
learned Sessions Judge has on appreciation of oral and
circumstantial evidence inferred that the place of the incident
was the chowk and not a place near the houses of the
accused persons. Nothing more could have been revealed by
other village people or the party of tightrope dance
performers. The evidence available on record shows and that
appears to be very natural, that as soon as the melee ensued
all the village people and tightrope dance performers took to
their heels. They could not have seen the entire incident. The
learned Sessions Judge has minutely scrutinised the
statements of all the eyewitnesses and found them consistent
and reliable. The High Court made no effort at scrutinising
and analysing the ocular testimony so as to doubt, if at all, the
correctness of the several findings arrived at by the Sessions
Court. With the assistance of the learned counsel for the
parties we have gone through the evidence adduced and on
our independent appreciation we find the eyewitnesses
consistent and reliable in their narration of the incident. In our
opinion non-examination of other witnesses does not cast any
infirmity in the prosecution case.
42. The Hon’ble Supreme Court in the case of Anand
Ramachandra Chougule V/s Sidarai Laxman Chougala & Ors;
(2019) 8 SCC 50 has held as follows:-
12. The fact that an FIR was lodged by the
accused with regard to the same occurrence, the failure of
the police to explain why it was not investigated, coupled
with the admitted fact that the accused were also admitted
in the hospital for treatment with regard to injuries
sustained in the same occurrence, but the injury report
was not brought on record and suppressed by the
prosecution, creates sufficient doubts which the
prosecution has been unable to answer.
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
31/33
43. No reasons have been assigned for non-examination
and withholding one Sanjay Kumar Yadav and injured persons.
44. In the present case, Sanjay Kumar Yadav injured has
been withheld and, therefore, an adverse inference against the
prosecution has to be drawn that if Sanjay Kumar Yadav had been
examined, he would not have supported the prosecution case.
45. The prosecution case is that some of the accused had
used Khanti but none of the injured person (the injury of Sanjay
Kumar Yadav having been excluded as discussed above) but none
of the injured i.e. Mahendra Kumar Yadav and Vijay Kumar Yadav
have sustained injuries by sharp-edged weapon and they have
suffered the injuries of hard blunt substance.
46. The Hon’ble Supreme Court in the case of Hallu &
Ors V/s State of Madhya Pradesh, (1974) 4 SCC 300 has held as
follows:-
11. The post-mortem report prepared by
Dr N. Jain shows that on the body of Jagdeo were
found three bruises and a haematoma. On the body
of Padum were found four lacerated wounds and
two bruises. According to the eyewitnesses the two
men were attacked with lathis, spears and axes but
that clearly stands falsified by the medical
evidence. Not one of the injuries found on the
person of Jagdeo and Padum could be caused by a
spear or an axe. The High Court however refused
to attach any importance to this aspect of the
matter by saying that the witnesses had not stated
that “the miscreants dealt axe blows from the
sharp-side or used the spear as a piercing
weapon”. According to the High Court axes and
spears may have been used from the blunt side
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
32/33and therefore the evidence of the eyewitnesses
could safely be accepted. We should have thought
that normally, when the witness says that an axe or
a spear is used there is no warrant for supposing
that what the witness means is that the blunt side of
the weapon was used. If that be the implication it is
the duty of the prosecution to obtain a clarification
from the witness as to whether a sharp-edged or a
piercing instrument was used as a blunt weapon.
47. From the evidence of the witnesses, it appears that
the prosecution has not been able to prove the manner of
occurrence, time of occurrence and the injuries sustained by the
defence. The prosecution has withheld the injured witness Sanjay
Kumar Yadav and withholding him also damages the prosecution
case as discussed above. The hard blunt injuries sustained by the
two injured also does not support the prosecution case as the
prosecution has alleged that Khanti a sharp-edged weapon was
used.
48. Considering the aforesaid circumstances, I am of the
view that the prosecution has not been able to prove the case
beyond reasonable doubt, and, therefore this appeal is allowed.
49. The impugned judgment and conviction dated
20.07.2019 and order of sentence dated 22.07.2019 passed in
Sessions Trial No. 110 of 2015 (arising out of Karjain P.S. Case
No. 103 of 2013) by the learned Additional District and Sessions
Judge-IV, Supaul is hereby set aside.
Patna High Court CR. APP (SJ) No.3371 of 2019 dt.28-11-2024
33/33
50. Since the appellants are on bail, they are discharged
from the liabilities of the bail bonds.
51. The records of the case be returned to the Trial Court
forthwith.
52. Interlocutory application/s, if any, also stand
disposed off accordingly.
(Sandeep Kumar, J)
Shishir/-
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