22 Yrs On, Patna High Court Overturns Attempt To Murder Conviction In House Trespass Case Citing 'Shaky' Evidence

Noting several laches and inconsistencies in the statements of the informant (PW2) and informant's wife (PW1)— who claimed that they were attacked by the appellant, Justice Alok Kumar Pandey observed,

“It is the cardinal principle of criminal justice system that prosecution has to prove the case beyond the shadow reasonable doubt. In the present case, the investigating officer has not been examined which clearly reflects that the place of occurrence has not been specifically proved and the appellant has been prejudiced thereby. On the point of identification, both witnesses has admitted that the investigating officer has not taken any help for identifying the appellant during the course of investigation. How the story of prosecution is jumped upon the conclusion that appellant is the perpetrator among others who has committed the alleged occurrence. There was no any physical features pointed out by any of the witnesses either in the FIR or in the deposition of P.W.s that the appellant is the person who is perpetrator of the alleged crime, as pointed out in the story of prosecution.”

Facts:

Initially, in May 2003, 3-4 persons entered the house of PW1, allegedly to steal pigs. When attempts were made by PW1 and PW2 to identify the miscreants using a torch, shots were fired at both of them where the first bullet hit PW2's chest and the second hit her left arm. PW1 was also allegedly hit.

The trial court convicted the appellant against which he approached the High Court.

It was the case of the appellant that the examination of the Investigating Officer (IO), which was vital in the present case, had not taken place and as such, the place of occurrence could not be established. The appellant also raised the question of uncertain identification and submitted that neither PW1 nor PW2 had not pointed out the physical features of the appellant in the FIR, despite PW2 using a torch to identify the victim. It was further contended that while there were 3-4 persons who entered the house, no explanation was provided regarding the non-identification of anyone except the appellant.

On the contrary, the State supported the conviction and contended that the conviction was handed down on the basis of the available material on record and PW1 and PW2— who were victims, supported the manner of occurrence even though IO was not examined.

Findings:

The Court highlighted several laches and inconsistencies in the prosecution case. At the outset, it noted that the name and physical features of the appellant had not been reflected, yet it was alleged that PW2 identified the appellant in light of a torch and concluded that he was the perpetrator of the crime. The Court also noted that PW1, who claimed to identify the appellant, had never visited the resident village of the appellant.

Thus, with respect to the issue of identification, the Court observed that it is “beyond the stretch of imagination of prudent person” that, without knowing the physical features of the accused, PW1 and PW2 identified the person only as the younger son of late Naga Yadav, though, physical features of the any of the sons of Late Naga Yadav were not known by them. Thus, the Court concluded,

“From the perusal of evidence of P.W. 2 it is crystal clear that the evidence of P.W. 2 is quite shaky with regard to the identification of appellant. P.W. 2 has not whispered about the source from where he came to know about the name of appellant. During the course of investigation how the name of appellant came to fore and it further put question mark as to what is the source of identifying the appellant except the name of father of appellant who is having five sons.”

The Court further observed,

“The identification of P.W.1 is totally based on identification of P.W. 2. P.W.1 has not pointed out anything as to how she linked the identification of appellant segregating the identification of other four sons of late Naga Yadav. There are four accused persons who made intrusion into the house of informant, then, why their identifications have not been revealed during the course of investigation."

As even the appellant's name was not declared, and he was only referred to as the younger son of late Naga Yadav, the Court declared,

“The question arises that if the name of appellant has not been revealed in the FIR, then, how the name of appellant came to fore during the course of investigation and how it is determined that appellant is the person who is the perpetrator of the said crime though FIR denotes the intrusion of four persons and informant is claiming to identify the accused/appellant in the light of torch. Omission of denoting the physical features of any of the accused persons who are the perpetrators of crime clearly indicates that there was no light and on the said point whether light was available or not?, torch was seized or not?, the examination of Investigating Officer has not taken place.”

The Court further highlighted that though PW2 claimed to be injured, no injury report was made available on record. Even the non-examination of the IO casted a doubt upon the prosecution's story.

Overturning the conviction, the Court held,

“…prosecution case suffers from several infirmities, as noticed above, and it was not a fit case where conviction could have been recorded. The learned trial court fell in error of law as well as appreciation of facts of the case in view of settled criminal jurisprudence. Hence, the judgment of conviction dated 29.03.2023 and order of sentence dated 05.04.2023 are hereby set aside and this appeal stands allowed.”

Case Number: CRIMINAL APPEAL (SJ) No.2304 of 2023

Case Title: Haresh Yadav v. The State of Bihar

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