Non-Examination Of Injured Victim Deprives Accused Of Opportunity To Cross-Examine: Patna High Court Orders Acquittal In Attempted Murder Case

"In the present case, from perusal of initial version of story of prosecution neither informant is victim nor eye witness of the alleged occurrence as discussed in foregoing paragraphs and victim is the star witness whose presence at the place of occurrence cannot be doubted and whose evidence is essential to the unfolding of the narrative but she has not been produced before the court by the prosecution with the reason best known to prosecution. In this way, the appellants have been deprived of opportunity to cross-examine her which is fatal to the prosecution,” Justice Pandey added.

According to the factual details of the case, during the morning of a day in February 2015, the appellants along with others arrived at the informant's residence. Allegedly, they engaged in abusive threats, insisting on resolving a certain matter under dispute. These threats were accompanied by warnings that the appellants and their associates would resort to violence up to the point of causing harm or death.

The mother of the informant raised objections to the verbal abuse, allegedly resulting in the appellants and their companions physically assaulting her. They were armed with items such as sticks, clubs, and a pointed tool known as "khanti." The assault led to the informant's mother being struck on the head, causing her to fall, prosecution argued.

Upon hearing the commotion, the informant rushed to the scene and intervened to protect his mother, and claimed that the threats for resolution of the dispute or risk of harm continued to be made repeatedly by the appellants and their associates.

On the basis of a written report, a case was registered and charge sheet was filed. The trial court then framed charges against the appellants under Sections 307/34 and 325/34 of the IPC. The central question raised during the appeal was whether the conviction of the appellants could be upheld.

The Court meticulously examined the witness testimony presented before the trial court in the context of the alleged offence and observed that the contention of the counsel for the appellants found force that determinative facts to decide nature of offence are intention or knowledge to commit the crime and in the instant case, facts and circumstances speak for themselves that appellants had no such intention or requisite knowledge as alleged in the initial version of the story of prosecution. Court said even if whole prosecution story is found to be correct in given facts and circumstances of the case, then also, no offence under Section 307 read with 34 of the IPC is made out against the present appellants keeping in view the nature of injury, which as opined by the doctor, could be sustained by falling on any hard substance.

The Court noted, “In the present appeal, from perusal of initial version of FIR, it is crystal clear that even the informant is not eye witness of the alleged occurrence as he arrived at the place of occurrence after hearing noise and he is not victim of the present case. The victim, who is mother of the informant, sustained injury but she has not been produced before the court for adducing evidence.”

“In the present case, from perusal of initial version of story of prosecution neither informant is victim nor eye witness of the alleged occurrence as discussed in foregoing paragraphs and victim is the star witness whose presence at the place of occurrence cannot be doubted and whose evidence is essential to the unfolding of the narrative but she has not been produced before the court by the prosecution with the reason best known to prosecution. In this way, the appellants have been deprived of opportunity to cross-examine her which is fatal to the prosecution,” the Court further noted.

The court proceeded to elaborate on Section 307 of the IPC, noting that two key elements must be present: the intention or knowledge to commit murder and the corresponding act towards that intention. It emphasized that for the purpose of Section 307 IPC, what truly matters is the intention or knowledge, not the actual consequences of the act carried out in pursuit of that intention.

The court underscored that Section 307 contemplates an act executed with the intention of causing death, which fails to achieve its intended outcome due to intervening circumstances. The requisite intention or knowledge must be sufficient to constitute a murder, and without such intention or knowledge, an offense of attempted murder cannot be established, the court noted.

In the present case, the court pointed out that the initial version of the prosecution's story attributed the incident to an altercation that escalated into the assault on the informant's mother. However, the informant's deposition did not include this critical detail, casting doubt on the veracity of the prosecution's narrative.

The court also highlighted the doubtful presence of key prosecution witnesses at the scene of the incident. Despite claiming to be eyewitnesses, their reliability was undermined by contradictions and inconsistencies regarding the location, manner, and boundaries of the occurrence.

Considering all these factors, the court determined that the trial court had failed to adequately assess the prosecution witnesses' evidence and the available record materials. The conviction under Section 307 read with 34 IPC could not be established, especially as the victim had not been examined and other prosecution witnesses did not confirm the presence of others at the scene, Court said.

Given the discrepancies and infirmities in the testimonies of factual witnesses, the court concluded that the prosecution's case had not been proven beyond reasonable doubt. It emphasized the fundamental principle that the prosecution bears the burden of proving its case beyond reasonable doubt and that this principle had not been met in this instance.

“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, impugned judgment of conviction and order of sentence are hereby set aside and this appeal stands allowed. The appellants are in custody. Let them be released forthwith, if they are not warranted in any other case,” the court concluded.