DHARNIDHAR JHA AND AKHILESH CHANDRA, JJ.
(1.) The present Government Appeal questions the order of acquittal passed by the learned Sessions Judge, Gopalganj, in Sessions Trial no. 159 of 1986 on 11th March, 1988 by which two respondents were acquitted of the charges under Sections 302, 324 and 201 of the Indian Penal Code.
(2.) Prosecution case was that respondent Kedar Gosain had a very bad relationship with his father, Tileshwar Gosain, and as a result of that respondent Kedar Gosain was living separately from the deceased with his wife. It was alleged that all of a sudden Kedar Gosain stabbed his father. The mother of respondent Kedar Gosain, namely, Pashpati Devi (P.W.2) and her daughter raised hulla thereupon the informant, Rabindra Giri (P.W.5) rushed there and saw respondent Kedar Gosain stabbing his father repeatedly. The protest by Rabindra Giri (P.W.5) was of no avail. P.W.5 went ahead to intervene so as to save the deceased but he was also given blows with knife which hit on his left thigh. The informant and his brother, Jogendra Kumar Giri (P.W.3) together came to Hathwa and was examined by Doctor in his private clinic, namely, Dr. Hira Lal.
(3.) It is further alleged that Kedar Gosain, the respondent, so as to creating a defence for himself, took up the dead body of his father and brought it to the Darwaza of one Bigan Sah and left it there. The other respondent, Kunti Devi, also washed away the blood from the ground of the place of occurrence.
(4.) The Sub-Inspector of Police, Nagendra Singh (P.W.9) picked up some rumour about the incident and started for the spot and he met the informant in Hathwa Hospital where he recorded the statement of P.W.5 and investigated the case.
(5.) During the course of trial as many as ten witnesses were examined. The learned Judge, after appreciating the evidence of witnesses, acquitted the respondent.
(6.) Sushri Shashi Bala Verma, who has argued the present Government Appeal, has been very fair in submitting that the most material witnesses like Yogendra Giri does not appear supporting the fact that his brother, (P.W.2) had told him as to how respondent Kedar Gosain had stabbed his father . As regards P.W.5, Rabindra Giri, his evidence also appears disbelieved by the learned trial Judge. Sushri Verma submitted that the discrepancy pointed out by the learned trial Judge does not appear without any basis.
(7.) We have appointed Sri Aaruni Singh amicus curiea to assist us inasmuch as Sri Ashok Kumar Singh No.4, whose name appeared in todays list, appeared before us before recess to inform that he did not have any instructions. Sri Singh has submitted that the learned trial Judge has highlighted the very material fact that what was the motive for committing the murder of his father, does not appear coming out of the evidence. It was further contended that material witnesses, who were the persons whose houses were situated around the place of occurrence, were also not examined and some of the most material witnesses like P.Ws.1 and 2 did not support the prosecution case. It was contended that the witnesses, who were declared hostile, that is, P.Ws. 1 and 2, were not cross-examined even to their earlier statements made by them before the Judicial Magistrate. It was contended that the impugned judgment does not appear perverse and as such the Government Appeal is fit to be dismissed.
(8.) We have considered the contention in the light of the evidence and we find that the learned trial Judge appreciated the evidence of the witnesses in their right perspective irrespective of the fact that the witnesses, who had been examined, did not inspire confidence of the learned trial Judge. Other important circumstance, which weighed very heavily upon the learned trial Judge, was that the Police had constructed a story of respondent Kedar Gosain making confession before it and that confession led to recovery of a banyan and an underwear which allegedly belonged to the deceased. Discussion of that part of the evidence appears in paragraph 13 of the judgment and the learned trial Judge has recorded that the prosecution has alleged that the two garments were blood soaked. However, the evidence of P.W.9, the Investigating Officer of the case, indicated that none of the garments was blood soaked rather they were clearly washed, having no stain of blood or any stain over them. The learned trial Judge has recorded that the two garments were sent to Forensic Science Laboratory for examination but the report has also not been placed before the Court.
(9.) P.W.5, Rabindra Giri, was disbelieved because his conduct was not found consistent with that of an ordinary human being as he, inspite of having traveled with his brother, P.W.3, appeared to the learned trial Judge not telling P.W.3 about the incident which was the evidence of P.W.3. The learned trial Judge thereafter went on to consider the other important circumstance of the case that the absence of a very strong motive to a son for committing the murder of his father. Besides the non-examination of Began Sah, at whose residence the dead body was allegedly kept by respondent Kedar Sah, also appears to us materially affecting t
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he merits of the charges. (10.) We find that on the above grounds the order of acquittal was passed and that view was also possible from the evidence available to the learned Trial Judge. (11.) In the result, we do not find any merit in the present Government Appeal which is dismissed. (12.) Sri Aaruni Singh, who has appeared before us as Amicus Curiea, is entitled to a fee which shall be paid to him by the Patna High Court Legal Services Authority. Let a copy of the first and last page of the present judgment is made over to him for necessary work.