IN THE HIGH COURT OF JUDICATURE AT PATNA
Chandeshwar Sah & Anr.
v.
The State of Bihar
Criminal Appeal (SJ) No. 591 of 2009
25-01-2018
(Hon’ble Mr. Justice Aditya Kumar Trivedi)
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Issue for Consideration |
Whether the conviction of the appellants under Section 307 read with Section 149 of the Indian Penal Code was sustainable in law.
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Headnotes |
There happens to be no question at the end of the appellant with regard to finding of PW.7 doctor relating to sustenance of firearm injury by the PW.1, informant. Though there happens to be discrepancy over date of issuance of injury report but he (PW.7) has not been tested on that very score. The only infirmity persisting in the evidence of PW.1 in consonance with the evidence of PW.7 is, PW.1 had shown distance of firing from five yards, while doctor had found charred injury. Moreover, the manner of occurrence as suggested did not support the distance, which the PW.1, had spoken in a fluke. However, the fact remains regarding presence of firearm injury which has not been controverted but, the appellants themselves allowed to survive as PW.7 was not cross-examined. That being so, even though PW.1 was suggested that the injury report was issued one and half year after the occurrence, but due to non-cross-examination of PW.7, who happens to be maker of the document has allowed the genuineness of the document without any legal impediment. In the aforesaid facts and circumstances of the case, there could not be any kind of doubt with regard to presence of firearm injury over person of PW.1. (Para 19)
Because of the fact that there happens to be no cross-examination challenging the place of occurrence, there happens to be no cross-examination with regard to contradiction or exaggeration whatever may be, there happens to be no cross-examination with regard to other kind of activity which could have properly exposed only through cross-examination of the Investigating Officer, then in that circumstance, really the non-examination of the Investigating Officer has caused prejudice to the appellants, and the answer is no. The court has to form its opinion on the evidence adduced during course of trial in order to record finding. As stated above, there happens to be no cross-examination in order to demolish or discredit the version of the PW.1 and that being so, the non-examination of the Investigating Officer could not be found to be adverse to the interest of the prosecution as well as to have caused prejudice to the appellant. (Para 21)
Mere exoneration of an accused during course of investigation, though be a circumstance but did not dent in the prosecution case, if found otherwise duly substantiated whether his presence, subsequently been procured or not is another circumstance. Furthermore, it was not the recording of acquittal by the court regarding other co-accused, nor there happens to be any adverse finding at the end of lower court while summoning the Dasrath Rai, and in the aforesaid facts and circumstance of the case, the submission raised on behalf of appellant is found untenable. (Para 23)
This appeal sans merit and is accordingly dismissed. (Para 24)
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Case Law Cited |
Mukesh v. State (NCT of Delhi), 2017 Cr.L.J. 4365.
S.P.S. Rathore v. CBI & Anr., 2017 Cr.L.J. 537.
Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417.
Gian Chand & Ors. v. State of Haryana, 2013 (4) PLJR 7 (SC).
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List of Acts |
Indian Penal Code, 1860 -Sections 307, 149.
Code of Criminal Procedure, 1973 – Sections 313, 319.
Indian Evidence Act, 1872 – Sections 134, 145, 146.
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Case Arising From |
The judgment of conviction dated 21.07.2009 and order of sentence dated 24.07.2009 passed by the Sessions Judge, Muzaffarpur in Sessions Trial No.167 of 1998.