SHAMBHU NATH PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE aforesaid revision and writ petition have been heard analogous because they arise out of the same judgment dated 23rd January 1999, passed by the 1st Additional Sessions Judge, Katihar, in S. T. No. 421 of 1996. The informant Shambhu Nath Pandey of the case is the revisionist and the Investigating Officer of the case, namely, Pramod Kumar Jha is the writ - petitioner.

(2.) ON the fardbeyan of the revisionist, Shambhu Nath Pandey, a case was registered at the Dandkhora P.S. and the investigation was taken up by P. K. Jha and whereafter on submission of charge -sheet etc., the accused persons of the case, who are opposite party nos. 2 to 10. were tried and acquitted by the 1st Additional Sessions Judge, Katihar.

(3.) SO according to the fardbeyan of the informant, llyas and Razzaq were the two named accused. However, the informant 'sre -examination by the I.O., gave a twist to the prosecution case, so far the assailants were concerned and altogether different accused persons were named in his statement and the investigation proceeded on the lines of re -statement of the informant. One Jay Prakash Sharma and Raj Kumar Sharma were named as the main assailants in the re -statement of the informant. So thereafter charge -sheet was submitted against the accused opposite party and Md. Ilyas and Razzaq were not sent up for trial. All the witnesses examined by the prosecution, including P.W.10 the informant and some neighbours, including several villagers, all made statements to the I.O. implicating Jay Prakash Sharma and Raj Kumar Sharma and others. Witnesses were also examined under Section 164 Cr. P.C. and they named only Jay Prakash and Raj Kumar and others, but none of the witnesses named Razzaq and Ilyas before the I.O. The motive for the alleged occurrence, as per the fardbeyan of the informant, was that the informant 'sfather had agreed to sell certain lands to Ilyas and Razzaq and some advances were also made and the informant 'sfather insisted for payment of full consideration money which was not paid and Md. Ilyas and Razzaq, in turn, insisted for execution of the sale -deed and there was noncompliance of their request, by the informant 'sfather, for which the alleged occurrence took place. The motive as supplied in the restatement of the informant was that during the election, there was some kind of row with the informant 'sfamily and Jay Prakash and Raj Kumar and so for taking revenge, these two persons perpetrated the alleged crime along with their associates. The learned Sessions Judge, taking notice of complete somersault of the initial case and the complete departure of the same in restatement of the informant, held that the I.O., had misdirected himself by delaying the re -statement of the informant almost for 38 hours deliberately and intentionally, when he had good opportunity to take his restatement already armed with the fardbeyan of the informant in the F.I.R. So the learned trial court disbelieved the story of the alleged occurrence as developed by the informant and he also disbelieved the statements of the eye witnesses and other witnesses supporting the fresh story of assault on the informant and his family members, implicating Raj Kumar Sharma and, others completely exonerating, rather omitting, the names of Ilyas and Razzaq. The trial court also took special note of the fact that the Superintendent of Police and the I.O. both visited the P.O. village on 2nd July 1996 itself in the wee hours (3.7.1996) and had queried some witnesses who failed to give names of assailants. The trial court further noted the fact that the I.O. (P.W.12) had stated in his evidence that he had gone to the P.O. in the night of 2nd July 1996 at 1.30 A.M. {3rd July 1996) and there he learnt that all the witnesses, including the family members of the deceased had gone to the Hospital. But the statements of other witnesses were that, at least, Neelam, the informant 'ssister, and uncles of the informant were present in the village itself who were not queried or examined. Moreover, the I.O. failed to examine the eye witnesses, such as, Pushpa Pandey, Neelam and the Bahnoi of the informant, when he visited Katihar Hospital on 3rd July, 1996 at 10.30 A.M. At least, Pushpa Pandey and informant 'sbrother -in -law were very much present in the Hospital, because Pushpa Pandey was signatory to the fardbeyan and informant 'sBahnoi was another injured in the Hospital, but the I.O. failed to take statement of these witnesses, and even the informant on 3rd July 1996, when he visited the Hospital. So in the opinion of the trial court, the I.O. had deliberately delayed taking the statement of the eye witnesses, as early as possible, even though he had confronted them. The trial court, therefore, doubted the integrity of the I.O. (P. W.12) and he suspected foul play by the I.O. in taking delayed re -statement of the informant on 4th July 1996 at 4.00 P.M. just to give a deliberate Uturn to the entire prosecution case, as per the fardbeyan of the informant. It was contended before me by the revisionist 'slawyer that when the fardbeyan of the informant was recorded by a Police Officer of Katihar P.S. the informant was not in proper senses being an injured person himself, and he gave his fard beyan by beckoning (signs) and, therefore, his fardbeyan was not an exhaustive piece of statement and giving a full and correct account of the alleged version of the occurrence. In this connection, the evidence of P. W.6 was relevant. This witness had said that after the alleged occurrence, the informant took this witness and drove the motor -cycle himself, went to village Pathara and brought a tractor to carry the deceased and the injured to the hospital. So if the informant was in such an injured condition, it was not understandable as to how he will ride a Motor -cycle to go to another village for taking a tractor. It is also surprising that the informant would make his statement before a Police Officer just by signs and name the assailants by. signs and give also the motive of the occurrence just by signs. It was suggested to me by the revisionist 'slawyer that the Police Officer recording the fardbeyan had put certain questions to the informant and had got the answer and recorded the fard beyan. But this situation is also off the point because the Police Officer, according to the fardbeyan, cannot on imagination supply the names of assailants as also the motive to get the affirmative reply from the informant and subsequent recording of fardbeyan. So it is apparent that the informant was in his full senses and in perfect state of his mental condition to narrate the entire occurrence. If at all, the informant was not in a position to give his fard beyan, there was another injured in the Hospital, the Bahnoi of the informant and Pushpa Pandey, his own sister. So the fardbeyan of these persons could have been recorded to form the basis of the initial case and actually Pushpa Pandey had signed on the fardbeyan of the informant. So the departure from the initial case was, of course, of mysterious circumstance in the case and the learned trial court, therefore, genuinely and candidly doubted the veracity of the case that developed on the restatement of the informant allegedly recorded by the I.O. of the case. So in the opinion of the trial court, all the witnesses, including the injured and his family members, who figured as eye witnesses, had committed perjury and they had implicated innocent persons in the case. The trial court, accordingly, acquitted the accused and directed further investigation, rather, fresh investigation, by a Police Officer of the rank of Inspector. So it is to be seen whether the order of acquittal recorded by the trial court is visited by any legal flaw in recording its finding. The above discussion has shown that the trial court disbelieved the evidence of P.Ws. and doubted their veracity and in this behalf, I do not think he committed any illegality or misapplied the procedural law. The trial court is fully within its jurisdiction to place doubt in the veracity of the prosecution evidence and it is also free to record a judgment of acquittal, if it is not convinced with the truthfulness of the case of the prosecution and testimony of witnesses supporting the same. There is no error of record also committed by the trial court in coming to its findings on the basis of evidence adduced. It was pointed out by the revisionist 'slawyer that the witnesses had all along been supporting the prosecution case as it turned out to be according to the re -statement of the informant, and all the witnesses were examined under Section 164 Cr. P.C. as welt where also they had supported the same version of the alleged occurrence which the informant stated in his further examination (re -statement). Besides the same, one of the accused who faced trial had made a confessional statement before the Block Development Officer of the area in which he had referred to a Motor -cycle which was used in the alleged occurrence and which was recovered from the house of one of the accused facing trial. So the trial court had no business to ignore the confessional statement of the co -accused. In this connection, it is to be noted that the alleged confessional statement was made before the B.D.O. who came to the Police Station at the request, rather bidding of the I.O. and recorded the socalled confessional statement when the accused was in Police custody. The B.D.O. was not a Magistrate, ''Judicial or Executive, and so, if at all, any of the accused was prepared to make his confessional statement, the I.O. should have produced him before a Judicial Magistrate to record his statement instead of engaging the B.D.O. So the learned trial court disbelieved this confessional statement and I am of the opinion that he rightly did so. It is also surprising that the B.D.O. acted at the behest of the I.O. and went just to oblige the I.O. to do an act which, under the law, he was not at all authorised to do. There was, therefore, no alternative but to reject this confessional statement and not to rely on the same. The trial court here also did not commit any "faux pas". This court cannot interfere in revision simply because a different view of the evidence on the record can be taken by this Court.