1. Altogether twelve accused persons faced trial in Sessions Trial No. 531 of 2008 corresponding to Harnaut P.S. Case No. 97 of 2006 before the
learned Fast Track Court No. 1, Nalanda for offences under Sections 147, 148, 447/149, 307/149 and 307 I.P.C. as well as under Section 27 of the
Arms Act. The eleven were acquitted of all the charges on the very same evidence and the sole appellant was convicted under Section 307 I.P.C.
and 27 of the Arms Act by the impugned judgment of conviction dated 04.12.2017. By order of sentence dated 06.12.2017 the appellant was awarded
ten years rigorous imprisonment and a fine of rupees fifty thousand for offence under Section 307 I.P.C. In default of payment of fine, one year
rigorous imprisonment was ordered. For offence under Section 27 of the Arms Act, three years rigorous imprisonment was awarded along with fine
of rupees one thousand. In default of payment of fine, two months rigorous imprisonment was ordered.
2. The prosecution case as disclosed in the written report submitted by PW-4 Gajendra Prasad Singh is that on 11.06.2006 voting for Panchayat
election was going on in village Laluadih P.S. (Telmar O.P.) Harnaut District Nalanda. The informant was sitting at his Dalan along with Shiv Shankar
Singh (PW-2), Sudhir Singh (PW-5), Murli Manohar Singh (PW-1) and other villagers. At about 11:30 A.M., Mukhiya candidate Deshraj Singh
Chauhan @ Dharmendra Singh along with his supporters (the twelve accused persons who faced trial) variously armed came to the Dalan (outer
house of the informant) and exhorted others to kill Mukhiya i.e. PW-4. On that co-accused Dharmendra Singh fired at the informant but the informant
hide himself behind a pillar. Others who were sitting there started fleeing. Then the appellant Babban Singh @ Daddan Singh, carrying a pistol, fired
causing injury at the left eye of Shiv Shankar Singh (PW-2). Shiv Shankar Singh fell down and all who were firing returned to their house.
3. After investigation, the police submitted charge sheet and accordingly, the appellant and others were put on trial.
4. PW-1 Murli Manohar Singh, PW-2 Shiv Shankar Singh, PW-3 Nand Kishore Singh, PW-4 Gajendra Prasad Singh and PW-5 Sudhir Singh have
supported, in their respective depositions, about the date of occurrence, the manner of occurrence, the place of occurrence and the perpetrators of the
crime as disclosed in the FIR. Save and except that Gajendra Prasad Singh (PW-4) deposed that it was co-accused Pawan Singh (since acquitted)
who had caused injury to Shiv Shankar Singh at the left eye.
5. PW-6 Dharmendra Kumar is a formal witness who has proved the formal FIR.
6. PW-7 Dr. Parmanand Prasad Pal had treated the firearm injury on Shiv Shankar Prasad Singh. The injury report was proved by PW-7 and marked
as Exhibit-7.
7. PW-8 Rajesh Ranjan and PW-9 Arjun Prasad were investigating officer of the case. They have supported the investigation done by them.
8. Mr. Krishna Prasad Singh, learned senior counsel for the appellant contends that PW-4 Gajendra Prasad Singh who is informant of this case is not
a hostile witness. He has deposed that it was co-accused Pawan Singh who had caused firearm injury at the left eye of Shiv Shankar Singh. His
statement cannot be taken as slip of tongue because Pawan Singh was also an accused in this case. Thus two conflicting evidence is on the record.
One is of PW-4 that the injury was caused by co-accused Pawan Singh and rest witnesses deposed that the injury was caused by the appellant. The
conflicting evidence aforesaid makes the prosecution case doubtful.
Learned senior counsel further contends that on the very same evidence, eleven accused persons were acquitted by the same judgment without
distinguishing how the case of the appellant was on separate footing to that of acquitted accused persons. The law is well settled that if two views are
possible on the same evidence, the views in favour of the accused should be preferred. Learned senior counsel has drawn attention of the court to the
statement of PW-2 Shiv Shankar Singh, the injured witness who deposed that when the firing started, they all started fleeing. There is no evidence that
they were fleeing facing the firing and normal conduct would be that the people would flee away from the firing. In that situation, it was difficult to see
as to whose shot had caused the injury when several persons were allegedly indulged in firing.
9. Mr. Binod Bihari Singh, learned A.P.P. and Mr. Rajesh Kumar Singh learned counsel appearing for the injured contends that except PW-4, other
prosecution witnesses are consistent that the appellant had caused injury at the left eye of Shiv Shankar Singh. Gajendra Prasad Singh had also stated
in the FIR that appellant had caused injury to Shiv Shankar Singh. If Gajendra Prasad Singh said before the court as PW-4 that it was Pawan Singh
who had caused injury to Shiv Shankar Singh that would not make other four trustworthy witnesses unbelievable.
Finding;
10. There is no dispute that PW-4 Gajendra Prasad Singh is not a hostile witness. Even after conclusion of the prosecution evidence, Gajendra Prasad
Singh did not file any application that his statement was a slip of tongue and in fact the appellant had caused injury to Shiv Shankar Singh.
In Raja Ram V. The State of Rajasthan reported in (2005) 5 SCC 272, the Hon’ble Supreme Court said that if a witness is not declared hostile by
the prosecution, the defence can rely upon the evidence of such witness and it would be binding on the prosecution. The aforesaid view was reiterated
in Mukhtiar Ahmed Ansari V. The State (NCT of Delhi) reported in (2005) 5 SCC 258 in following terms :-
“29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from
Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW 1. He, however, did not support the
prosecution. The prosecution never declared PW 1 “hostileâ€. His evidence did not support the prosecution. Instead, it supported the defence. The
accused hence can rely on that evidence.
30. A similar question came up for consideration before this Court in Raja Ram V. State of Rajasthan (supra). In that case, the evidence of the doctor
who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she
might have to face prosecution. The doctor was not declared “hostileâ€. The High Court, however, convicted the accused. This Court held that it
was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution.
31. In the present case, evidence of PW 1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to the police in
which the police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, the accused can rely on that
evidence.â€
11. Thus there is serious doubt on the identity of the assailant of Shiv Shankar Singh. Moreover, on the very same evidence, eleven persons have been
acquitted and in absence of any material to substantiate or reason disclosed in the impugned judgment that case of the appellant stood on different and
graver footing, the conviction of the appellant is not sustainable. The learned trial Judge failed to consider that witness Shiv Shankar Singh has deposed
that he sustained injury while fleeing and there was no definite evidence from any prosecution witnesses of the occurrence that the witnesses
including Shiv Shankar Singh were fleeing facing the firing. Hence, it is doubtful that any one would have seen the real person who had caused
firearm injury.
In view of the aforesaid infirmities, in my view, conviction of the appellant is not sustainable in law. Accordingly, the impugned judgment of conviction
and order of sentence are, hereby, set aside. The appellant is acquitted and this appeal is allowed. Let the appellant be set free at once.
