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TMI Blog2003 (10) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... dly suffered homicidal death at the hands of the accused persons. There was longstanding enmity between Rajendra Jha (A-6) and one Deo Chandra Jha and there were several rounds of litigations between them. Raj Kishore Jha (PW-15) was going with the deceased for a walk in their village towards the chowk. They found Bundeo Jha (A-l), Bindeshwar Jha, Rajender Jha (A-6), Arjun Jha (A-2), Lalo Jha (A-3), Daya Nand Jha (A-7), Parmanand Jha (A-15), Arjun Jha (A-14), Gopal Jha (A-4), Madnanand Jha (A-8) and others were armed with various weapons and came to the Darwaja of Deo Chandra Jha to loot his Khalihan. The deceased protested as to why they were doing so. Hearing the protestations, Daya Nand Jha (A-7) and Rajender Jha (A-6) ordered Bundeo Jha (A-l) to shoot down the deceased. Bundeo Jha (A-l) fired at once from his gun. The pellets hit deceased on the forehead, front portion of the neck and chest and he fell down unconscious. Accused-Daya Nand Jha (A-7) asked the other members of the mob to leave as a murder had been committed Raj Kishore Jha- informant with the help of Prem Chandra Jha and Kaushal Kishore Jha and others tried to take the deceased to the hospital for treatment but on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deo Jha, Arjun Jha and Parmanand Jha were sentenced to undergo RI for 3 years for commission of offence punishable under Section 148 IPC. Accused-Bishundeo Jha, Rajendra Jha, Daya Nand Jha, Arjun Jha (A-14), Lalo Jha and Madananand Jha were sentenced to undergo RI for two years each for the offence relatable to Section 147 IPC. In appeal, the primary stand of the appellant was that the prosecution had not come with clean hands. When on the night of occurrence the Investigating Officer (PW-16) had inspected the place, he did not find any blood. In the morning, however, when he visited the occurrence, he found some blood like substance, but it was so scanty that it was not possible to scrap and forensic examination was ruled out. He also stated that he had not seen any sign of looting the wheat etc. and there was no mark trampling at the spot of occurence. He further stated that in the night of occurrence, he had visited the house of Daya Nand Jha and had found brickbats there. He further stated that he found trampling marks on the road near the house of Daya Nand Jha. According to the accused, the Investigating Officer had exposed the weakness in the prosecution version and proba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Government. Learned counsel for the appellant submitted that judgment of the High Court is based on surmises and conjectures and no reason has been indicated to discard the plausible and cogent prosecution testimony. Non-examination of the investigating Officer has not caused any prejudice to the accused. Further, there is no inflexible rule that when name of any witness does not appear in the first information report his version is to be discarded. The conclusion so far as PWs. 3, 6 and 9 that they had not accompanied the informant and were not eye witnesses by referring to the first information report is on a clear misreading of the first information report. No reason has also been indicated as to why the evidence of PWs. 3, 8, 11, 12 and 15 were to do discarded. It has been mentioned that they were accused persons in the counter case. That does not make them unreliable witnesses. Since the judgment is practically non-reasoned, the same has to be upset and that of the Trial Court which is reasoned, has to be restored. In response, learned counsel for the accused persons submitted that the High Court has indicated several reasons to find prosecution version vulnera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation or where the baneful approach of the Court has resulted in vital and crucial evidence being ignored or for any such adequate reason, the Court should feel obliged to secure the ends of justice, to appease the judicial conscience, as it were. The High Court has noted that the names of witnesses do not appear in the first information report. That by itself cannot be a ground to doubt their evidence as noted by this Court in Bhagwan Singh and Ors. v. State of M.P., JT (2002) 3 SC 387, Chittar Lal v. State of Rajasthan, (2003) AIR SCW 3466 and State of Madhya Pradesh v. Man Singh and Ors., (2003) 6 Supreme 202. There is no requirement of mentioning the names of all witnesses in the first information report. No reason has also been indicated by the High Court as to why the evidence of PWs. 3, 8, 11,12 and 15 was to be obliterated merely because they were accused in the counter case. In a case of this nature, when counter case has been registered, the Court hearing the same has to scrutinize the evidence with greater detail and even in such a situation the evidence which is cogent, credible and trustworthy cannot be totally wiped out because of the only circumstance that they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icted in respect of his former statement by drawing particular attention to that portion of the former statement. This question has been recently considered in the case of Binay Kumar Singh v. State of Bihar, [1997] 1 SCC 283 and the Court has taken note of the earlier decision in Bhagwan Singh v. State of Punjab, AIR (1952) SC 214 and explained away the same with the observation that on the facts of that case there cannot be a dispute with the proposition laid down therein. But in elaborating the second limb of Section 145 of the Evidence Act it was held that if it is intended to contradict him by the writing his attention must be called to those parts of it which are to be used for the purpose of contradicting him. It has been further held that if the witness disowns to have made any statement which is inconsistent with his present stand, his testimony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of section 145 of the Evidence Act. The aforesaid position was indicated in Rajender Singh and Ors. v. State of Bihar, [2000] 4 SCC 298. Since the judgment of the High Court is practically non ..... X X X X Extracts X X X X X X X X Extracts X X X X
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