LexSHRISHTI NARAIN JHA versus BINDESHWAR JHA AND ORS.
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A B [2009] 7 S.C.R. 442 SHRISHTI NARAIN JHA V. BINDESHWAR JHA AND ORS. Criminal Appeal Nos. 501-502 of 2003 MAY 5, 2009 (DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ.) PENAL CODE, 1860: c s. 396 - Dacoity and murder alleged to have been committed by 14-15 persons - Informant stated to have identified some of them - Conviction by trial court - Acquittal by High court - Held: High Court rightly held that accusation was not established by cogent evidence and there were 0 infirmities in prosecution version - Possibility of false implication due to long standing enmity between parties cannot be ruled out - Judgment of High Court does suffer from any infirmity. Respondents 1 to 9 faced trial for commission of 'f .. -,; E offence punishable u/s 396 IPC. The prosecution case was that on the stated night at about 12 O'clock, when the informant (PW.7) and his brothers (PWs. 4 and 6) were asleep, about 14-15 persons entered the house. On hearing the noise made by the miscreants, the ~ F complainant woke up and he identified the respondents who were armed with country made pistol, axe, 'garassa' and 'lath is'. One of the accused fired from his pistol, causing injuries to PW.6, while others assaulted PW.4. The informant ran out of the house. When he returned, he saw G the miscreants running away and found his father lying · dead. His mother is said to have told him that the accused also took away steel boxes containing clothes, jewellery ~ .. and cash. The trial court convicted the respondents of the.offence charged, but the High Court directed acquittal. H 442 SHRISHTI NARAIN JHA V. 443 BINDESHWAR JHA AND ORS. - t The only contention raised in the appeals filed by the A complainant was that the eye witness version should not have been discarded. Dismissing the appeals, the Court HELD: 1.1 The High Court has indicated in great detail B the infirmities in the prosecution version, and found it highly improbable that the witnesses could identify such :: f a large number of accused persons with the light of a lantern. The investigating officerdid not find any lantern or sign of any lantern. PW1 and PW2 who claim to have seen c injuries on the deceased, stated that the accused persons assaulted the deceased with 'Garasa' and 'Tengari'. The prosecution case further was that one of the appellant fired at PW4. The High Court, howeve·r, noted that the evidence of the doctor indicated that the injuries were not possible by 'Garasa' and 'Tengari', nor did the doctor find D '«' any firearm injury. [para 3,4 and 7] [446-G-H; 447-A, C-D; 448-A] 1.2 Though the evidence may suggest the factum of dacoity in the house of informant, but so far as manner of dacoity and participation of the accused in that dacoity is E concerned, that appears quite doubtful. The evidence of prosecution witnesses is that besides accused, there were some other dacoits also with them who could not be identified. It is significant to note that the accused are neighbours of the informant with whom his family had F long standing dispute. The possibility of false implication of appellants in the case on account of long standing .. enmity utilizing the incident of dacoity cannot be ruled out. [para 8] [449-E-F] ~ .. 1.3 Besides, two brothers of one of the accused, aged G - "' 13 and 16 years, and an old man of 74 years were also named as participants in the dacoity. It looks very unnatural that the accused would go to ~ommit dacoity in their neighbourhood taking .with them such minor and young boys and an old man when they were sufficient in H 444 SUPREME COURT REPORTS [2009] 7 S.C.R. A number and accompanied by some other persons also. [para 8] [450-A-B] 1.4 The High Court has rightly concluded that the case of the prosecution is not established by cogent evidence and, therefore, it would not be desirable to place B reliance on the prosecution evidence. The judgment of acquittal passed by the High Court does not suffer from any infirmity. [para 3 and 9f [447-A; 450-F] CRIMINALAPPELLATE JURISDICTION: Criminal Appeal c Nos.501-502 of 2003 D E F G H From the Judgement and Order dated 27.08.2002 of the Hon'ble High Court of Judicature at Patna in Criminal Appeal No. 397of1987 and 435 of 1987. Shiva Pujan Singh, for the Appellant. Sushil Kumar, Ashok Kumar Jha, Rajeev Sharma, Rajiv Kumar Jha, Aditya Kumar, Sharmila Upadhyay, Vinay Arora, Manish Kumar, Gopal Singh
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