if the 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. A single bench comprising of Justice Birendra Kumar adjudicating in the matter of Babban Singh vs. State of Bihar (CRIMINAL APPEAL (SJ) No.355 of 2018) dealt with an issue of whether to modify the sentence passed by the Trial Court or not.
In the present case, 12 accused persons faced trial before the 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. Eleven out of Twelve were acquitted of all the charges but the sole appellant was convicted under section 307 IPC and 27 of the Arms act. The appellant was sentenced to ten years of 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 of rigorous imprisonment was awarded along with a fine of rupees one thousand. In default of payment of fine, two months rigorous imprisonment was ordered.
According to the Prosecution, Gajendra Prasad Singh was going on 11.06.2006 voting for the Panchayat election in the village. 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 Dolan (outer house of the informant) and exhorted others to kill Mukhiya. On that co-accused, Dharmendra Singh fired at the informant but the informant hides 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 and all who were firing returned to their house.
The appellant contends that Gajendra Prasad Singh who is the 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 a slip of the tongue because Pawan Singh was also accused in this case. Thus two conflicting pieces of evidence are on the record. One is of the injury was caused by co-accused Pawan Singh and the rest witnesses deposed that the injury was caused by the appellant. And hence the conflicting evidence aforesaid makes the prosecution case doubtful. It was also contended that t on the very same evidence, eleven accused persons were acquitted by the same judgment without distinguishing how the case of the appellant was on a separate footing to that of acquitted accused persons. The law is well settled that if two views are possible on the same evidence, the accused’s views should be preferred. Also, it was submitted that 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. It was difficult to see whose shot had caused the injury when several persons were allegedly indulged in firing in that situation.
The public prosecutor contends that the except Gajendra Prasad Singh 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 the appellant had caused injury to Shiv Shankar Singh. If Gajendra Prasad Singh said before the court that it was Pawan Singh who had caused injury to Shiv Shankar Singh that would not make the other four trustworthy witnesses unbelievable.
The court finds no dispute that Gajendra Prasad Singh is not a hostile witness. Even after the 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. The court relied on Raja Ram V. The State of Rajasthan where it was held that if the 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.
It was also held that the” 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” and hence, a conviction of the appellant is not sustainable in law.