Patna High Court
Chhote Sharma & Anr vs The State Of Bihar on 26 September, 2014
Author: V.N. Sinha
Bench: V.N. Sinha, Prabhat Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Death Reference No.12 of 2013
Arising Out of PS.Case No. -131 Year- 2007l Thana -BAKHTIYARPUR District- PATNA
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The State of Bihar
.... .... Petitioner/s
Versus
1. Krishna Nandan Sharma
2. Tinku Sharma
.... .... Respondent/s
With
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Criminal Appeal (DB) No. 997 of 2013
Arising Out of PS.Case No. -131 Year- 2007 Thana -BAKHTIYARPUR District- PATNA
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1. Krishna Nandan Sharma, S/O Late Kameshwar Sharma, Resident of Village-
Salimpur, P.S.- Bakhtiyarpur, District- Patna
2. Tinku Sharma, S/O Late Tako Sharma, Resident of Village- Salimpur, P.S.-
Bakhtiyarpur, District- Patna
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
With
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Criminal Appeal (DB) No. 1003 of 2013
Arising Out of PS.Case No. -131 Year- 2007 Thana -BAKHTIYARPUR District- PATNA
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1. Umesh Sharma, Son of Late Chandeshwar Sharma, R/O Village-Salimpur, P.S.-
Salimpur, Distt-Patna
2. Suraj Sharma @ Surajdeo Sharma @ Surya Narayan Sharma, Son of Late
Bachchu Singh, R/O Village-Salimpur, P.S.-Salimpur, Distt-Patna
3. Ramakant Sharma @ Tenni Sharma @ Teni Sharma, Son of Late Chandeshwar
Sharma, R/O Village-Salimpur, P.S.-Salimpur, Distt-Patna
4. Vijay Sharma, Son of Ram Pravesh Sharma @ Shiv Jatan Sharma, R/O Village-
Salimpur, P.S.-Salimpur, Distt-Patna
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
With
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Criminal Appeal (DB) No. 975 of 2013
Arising Out of PS.Case No. -131 Year- 2007 Thana -BAKHTIYARPUR District- PATNA
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1. Chhote Sharma, son of Late Kamo Sharma
2. Lalbabu Sharma, son of Ramanuj Sharma
Both are residents of Village Salimpur, P.S. Bakhtiyarpur, District Patna
.... .... Appellant/s
Patna High Court D. REF. No.12 of 2013 dt.26-09-2014
2
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
(In D. REF. No. 12 of 2013)
For the Petitioner/s : Mr.
For the Respondent/s : Mr.
(In CR. APP (DB) No. 997 of 2013)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Sunil Kumar, Advocate
(In CR. APP (DB) No. 1003 of 2013)
For the Appellant/s : Mr. Akhileshwar Prasad Singh, Sr. Advocate
Mr. Bimal Kumar, Advocate
Mr. Abhishek Anand, Advocate
Mr. Surya Swetabh, Advocate
(In CR. APP (DB) No. 975 of 2013)
For the Appellant/s : Mr. Vishwanath Prasad Sinha, Sr. Advocate
Mr. Rajesh Kumar, Advocate
For the State : Mr. Ashwani Kumar Sinha, A.P.P.
(In all the appeals) Mr. S.C. Mishra, A.P.P.
Ms. Shashi Bala Verma, A.P.P.
For the Informant : Mr. Ram Swarup Prasad, Advocate
(In all the appeals)
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CORAM: HONOURABLE MR. JUSTICE V.N. SINHA
and
HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE V.N. SINHA)
Date: 26-09-2014
Death reference and the three criminal appeals arise out
of judgment/ order dated 21.09.2013/ 27.09.2013, passed by Ad hoc
Additional District & Sessions Judge-I, Barh, Patna, in Sessions Trial
No. 857/2008 (C-2), whereunder the appellants have been held guilty
and convicted for the offences under Sections 147, 148, 302, 149,
342, 201/149 of the Penal Code and Section 27 of the Arms Act. Two
of the aforesaid appellants, namely, Krishna Nandan Sharma and
Patna High Court D. REF. No.12 of 2013 dt.26-09-2014
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Tinku Sharma have been awarded Capital Punishment for the offence
under Section 302/149 of the Penal code with further direction to pay
fine of Rs. 25,000/- and compensation of Rs. 50,000/- each to the
legal heirs and successor of deceased Amod Kumar and Sujeet
Kumar. They have further been directed to suffer Rigorous
Imprisonment for three years under Section 201/149, 148 of the Penal
Code and Section 27 of the Arms Act respectively. The other six
appellants have been directed to suffer Rigorous Imprisonment for
life under Section 302/149 of the Penal code, one year, three years,
six months, three years under Sections 147, 148, 342 of the Penal
Code and Section 27 of the Arms Act respectively. They have further
been directed to pay fine of Rs. 25,000/-, in default of payment of
fine, to suffer Rigorous Imprisonment for six months. They have also
been directed to pay compensation of Rs. 50,000/- each to the heirs
and successors of the deceased Amod Kumar, Sujeet Kumar.
2. Prosecution story, as set out in the written report
dated 21.05.2007 (Exhibit-1) of Jai Ram Singh (P.W. 4), addressed to
the Officer-in-Charge, Bakhtiyarpur Police Station, Patna is that P.W.
4 along with Ranjeet Kumar (P.W. 3), Pramod Singh (P.W. 1), Paras
Rai (P.W. 2), Sujeet Kumar son of Mathura Rai, Raju Kumar son of
Lakhan Yadav, Amod Kumar son of Daleshwar Yadav, all residents
of Village- Alipur, P.O.- Alipur Bihta, Police Station- Bakhtiyarpur
Patna High Court D. REF. No.12 of 2013 dt.26-09-2014
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were going to Village- Mogalpura on 20.05.2007 around 8:00 P.M. to
participate in the feast at the house of Nawal Yadav. No sooner the
informant and others reached near the house of Accused No. 1
Krishna Nandan Sharma, they were surrounded by following 10-15
men, variously armed : (1) Krishna Nandan Sharma (Accused No. 1),
(2). Bhothu Sharma @ Babloo Sharma, (3). Tinku Sharma (Accused
No. 2), (4). Teni Sharma (Accused No. 6), (5). Umesh Sharma
(Accused No. 3), (6). Bhushan Sharma, (7). Suraj Sharma (Accused
No. 5), (8). Vijay Sharma (Accused No. 8), (9). Chhote Sharma
(Accused No.4), (1). Lal Babu Sharma (Accused no. 7), all residents
of Village- Salimpur, P.S. Bakhtiyarpur, District- Patna. Accused No.
1 Krishna Nandan Sharma asked his companions to kill the members
of the prosecution party and himself first shot Amod from his rifle on
his chest. He again fired another shot on his stomach causing his
death. Tinku Sharma shot Sujeet Kumar, the projectile first hit his
hand and then deflected causing injury on his chest leading to his fall,
whereafter Bhothu Sharma also shot Sujeet Kumar from his rifle in
his belly causing his death. Bhushan Sharma shot from his rifle on
the back of Raju Yadav, who raised alarm and fell down. The other
accused persons armed with rifle, named in the written report,
surrounded the members of the prosecution party while the others
named above shot. Informant further states in the written report that
Patna High Court D. REF. No.12 of 2013 dt.26-09-2014
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somehow he and P.Ws. 1, 2, 3 managed to escape from the place of
occurrence and came to village where villagers and members of the
family were informed about the occurrence. Information about the
occurrence was also sent to the Police Station whereafter the dead
bodies were recovered. Informant asserted in the written report that
eye-witness account has been narrated in the written report with
request to take action against the assailants. Besides the informant
P.Ws. 1, 2 and 3 also put their signature on the written report
(Exhibit-1).
3. Officer-in-Charge, Bakhtiyarpur Police Station
having received the written report (Exhibit-1) registered Bakhtiyarpur
P.S. Case No. 0131/07 dated 21.05.2007 at 8:30 A.M. for the
offences under Sections 147, 148, 149, 302, 342 of the Penal Code
and Section 27 of the Arms Act with further endorsement that he has
already taken up the investigation of the case and forwarded the First
Information Report to the court through special messenger. In this
connection reference be made to the search-cum-seizure-list (Exhibit-
8) which was drawn by the Investigating Officer on 21.05.2007 at
5:30 A.M. before submission of the written report in presence of M/S
Anjani Kumar (P.W. 7), Shyam Kishore Sharma (P.W. 6) indicating
seizure of three empty cartridges from the entrance of the house of
Accused No. 1.
Patna High Court D. REF. No.12 of 2013 dt.26-09-2014
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4. Having drawn, dispatched the First Information
Report, Investigating Officer prepared the Inquest Report of the three
deceased at Bakhtiyarpur Police Station on 21.05.2007 at 9:00, 9:30,
9:45 A.M. (Exhibits- 6/1, 6/2, 6). After drawing the Inquest Report,
Investigating Officer prepared the dead body Challan of the three
deceased on 21.05.2007 (Exhibits- 9, 9/1, 9/2) and sent the dead
bodies for post mortem to Sub-Divisional Hospital, Barh where the
post mortem was conducted by Dr. Niranjan Mishra (P.W. 5) vide
post mortem report (Exhibits- 2, 3, 4). The post mortem reports
confirm that the three deceased suffered homicidal death after
suffering fire-arm injuries. Investigating Officer having sent the dead
bodies for post mortem examination came to the place of occurrence
village for further investigation of the case and recovered two
bamboo pieces with dry blood stains from the entrance of the house
of Kamo Sharma, resident of Village- Salimpur in presence of M/S
Anjani Kumar, Shyam Kishore Sharma (P.Ws. 7, 6).
5. In the light of the statement made in the written
report, further statement of the informant and the statement of the
eye-witnesses as also materials appearing in the inquest, post mortem
report Investigating Officer submitted charge-sheet No. 151/07 dated
18.08.2007against the eight appellants and one another, namely, Bhothu Sharma @ Babloo Sharma (absconder). In the light of the Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 7 charge-sheet cognizance was taken and the case was committed to the court of Sessions for trial. Charges against eight appellants were framed under orders dated 03.09.2009 to which they pleaded not guilty and claimed to be tried.
6. In support of the charge, prosecution examined nine witnesses. P.W. 1 Pramod Kumar Singh, P.W. 2 Paras Rai, P.W. 3 Ranjeet Kumar, P.W. 4 Jai Ram Singh (informant) are the eye- witnesses of the occurrence, as they accompanied the three deceased on the fateful night of 20.05.2007 around 8:00 P.M. while the deceased and the four eye-witnesses were going to Village- Mogalpura from their own village for attending the feast in the house of Nawal Yadav and were intercepted by the appellants when the prosecution party reached near the house of Accused No. 1 Krishna Nandan Sharma and resorted to firing killing the three deceased. P.W. 5 Dr. Niranjan Mishra conducted post mortem examination on the person of the three deceased. P.W. 6 Shyam Kishore Sharma, P.W. 7 Anjani Kumar are the seizure-list witnesses in whose presence Investigating Officer seized three empty cartridges, two bamboo pieces from the entrance of the house of Accused No. 1 and Kamo Singh on 21.05.2007 at 5:00 P.M., 12:30 P.M. respectively. P.W. 8 Arvind Singh @ Fannu Singh appears to be a hearsay witness. P.W. 9 Birendra Kumar Medhavi, Officer-in-Charge, Bakhtiyarpur Police Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 8 Station is the Investigating Officer of the case.
7. Besides the aforesaid prosecution witnesses one defence witness, namely, Abhay Ranjan, Assistant Engineer of the Electricity Department has also been examined to establish that on the date/ time of occurrence there was no power supply in the village.
8. Counsel for the appellants assailed the conviction of the appellants and submitted that the four eye-witnesses of the occurrence, namely, P.Ws. 1 to 4 are not the eye-witnesses of the incident. In this connection, it was pointed out that in order to make P.Ws. 1 to 4 as the eye-witnesses of the incident, prosecution party has suppressed the earliest version of the occurrence given by the informant and the three eye-witnesses to the villagers, family members as also to the Officer-in-Charge, Bakhtiyarpur Police Station during the night of 20-21.05.2007. According to learned counsel, the necessity to suppress the earliest version arose as in the said earliest version the identity of the assailants of the three deceased was not disclosed and the appellants were included in the written report (Exhibit-1) after the intervention of Lalu Mukhiya who is scribe of the written report vide evidence of P.Ws. 1, 2, 4. In order to support the written report, prosecution party has not indicated the time of recovery of the dead bodies in two of the three inquest reports of deceased Amod Singh, Sujeet Kumar (Exhibits-6, 6/1). In the third Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 9 inquest report of deceased Raju Kumar (Exhibit- 6/2) the time of recovery of the dead body has been shown as 9:00 A.M., which is contrary to the contents of the written report, as according to the written report after information about the occurrence was given to the Police Station in the night the dead bodies were recovered in the night or in any case before submission of the written report on 21.05.2007 at 8:30 A.M. According to learned counsel, in no case, dead body of Raju Kumar could have been recovered on 21.05.2007 at 9:00 A.M. as has been shown in his inquest report (Exhibit-6/2). In the circumstances, according to learned counsel, the contents of the three inquest reports is perhaps not correct and have been drawn to suppress the earliest version of the occurrence. In this connection learned counsel further pointed out that none of the inquest witnesses has been examined to support its contents, which is further indicative of the fact that the dead bodies were perhaps recovered in the night of the occurrence itself after arrival of Officer-in-charge, Bakhtiarpur Police Station in the place of occurrence village and to suppress the said information the inquest report has been shown to have been drawn at Bakhtiyarpur Police Station around 9:00 A.M. The Officer- in-Charge, Bakhtiyarpur Police Station reached the place of occurrence village in the night of occurrence itself, remained there until early morning on 21.05.2007 when he recovered the three empty Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 10 cartridges from the entrance/ Sahan of the house of Accused No. 1. In this connection learned counsel further referred to the entries made in Column 3 of the formal First Information Report (Exhibit-11) and submitted that the information about the occurrence was received in the Police Station on 20.05.2007 at 22.30 hours and referred to the evidence of Investigating Officer (P.W. 9) Paragraph 12 where he has stated with reference to the entries made in Paragraph 2 of the case diary that P.W. 4 Jai Ram Singh (informant) had given him his written application in Village- Salimpur after Investigating Officer reached Salimpur village on receipt of telephonic information about the occurrence during the night of the occurrence. In the same paragraph P.W. 9 has, however, denied the suggestion that P.W. 4 had given him his written application on 20.05.2007 and that he had made the said application disappear. According to learned counsel it is, however, not disputed that present First Information Report has been registered on the basis of the written report (Exhibit-1) written by Lalu Mukhiya in the morning of 21.05.2007 in view of the evidence of P.W. 1 Paragraph 6, P.W. 2 Paragraph 6 and P.W. 4 Paragraph 5. In this background learned counsel raised question as to what happened to the application which the informant submitted before the Investigating officer during the night of occurrence after Investigating Officer reached the place of occurrence village on Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 11 receipt of information from Chowkidar that sound of firing shots is being heard from the vicinity of the house of Accused No. 1. In this connection it is also submitted that had the Investigating Officer not received concrete information about the occurrence during the night of 20.05.2007 he ought not to have mentioned such fact in sub- column (kha) of column (3) of the formal First Information Report (Exhibit-11). With reference to the evidence of Investigating Officer (P.W. 9) Paragraph 19 and the entries made in sub-column (gha) of Column-3 of the formal First Information Report learned counsel submitted that telephonic information about the occurrence was definitely received in the Police Station at 8:30 P.M. and was entered in the Station Diary, as has been admitted by the Investigating Officer in Paragraph 19 of his evidence, but number of the Station Diary entry was deliberately not mentioned in sub-column (gha) of Column-3 of the formal First Information Report (Exhibit-11), perhaps with a view to suppress the contents of the initial information received about the occurrence. In view of the aforesaid evidence, it is submitted that neither the initial telephonic information given by the Chowkidar, on the basis of which Investigating Officer (P.W. 9) came to the place of occurrence nor written application received from the informant during the night of occurrence disclosed the name of the appellants. Their name was introduced for the first time in the Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 12 following morning after intervention of Lalu Mukhiya the scribe of the written report of informant (P.W. 4). It is also submitted that though the written report (Exhibit-1) was scribed by Lalu Mukhiya, as is admitted by P.Ws. 1, 2 and 4 but his signature does not appear on the same perhaps for the reason that Lalu Mukhiya, who was responsible for introducing the name of these appellants and others in the written report wanted to conceal his identity as the one who scribed the written report of P.W. 4 and persuaded the prosecution party including the Investigating Officer (P.W. 9) to suppress the written application received from the informant during the night of occurrence referred to in Paragraph 2 of the case diary, may be before or after mid-night, as the Investigating Officer remained in the place of occurrence village during the night, which is evident from search- cum-seizure-list dated 21.05.2007 drawn at 5:30 A.M. (Exhibit-8) whereunder three empty cartridges were recovered from the entrance/ Sahan of Accused No. 1 in presence of P.Ws. 6, 7. Investigating Officer having remained in the village during the night of occurrence after he arrived in the village in the light of telephonic information received from the Chowkidar in the Police Station and remained in the place of occurrence village until 5:30 in the morning. Receipt of written information by him during the night, may be before or after the mid-night, shall only affect the date of the written application as Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 13 in case it is received before mid-night, the date of application shall be 20.05.2007, otherwise 21.05.2007. From perusal of Paragraph 2 of the case diary, it appears that the application was received during the night of the occurrence after Investigating Officer left the police station at 10:30 P.M. for place of occurrence village. The date of application has been inserted in the case diary by putting „^‟ as 21.05.2007.
9. Learned counsel for the appellants further submitted that according to the prosecution case formal First Information Report (Exhibit-11) was drawn on 21.05.2007 at 8:30 A.M. The three inquest reports (Exhibits-6/1, 6/2, 6) were drawn on 21.05.2007 at 9:00, 9:30, 9:45 A.M. yet case number of the present case is not mentioned in Column No. 1 of the three inquest reports, which is indicative of the fact that perhaps the formal First Information Report was not drawn until 21.05.2007 at 8:30 A.M. In this connection learned counsel also referred to the post mortem report of the three deceased (Exhibits- 3, 4 5) and submitted that the dead bodies were received at Bakhtiyarpur Sadar Hospital at 9:00, 9:30, 9:45 A.M. on 21.05.2007 along with dead body Challan of the three deceased (Exhibits- 9, 9/1, 9/2), perusal whereof indicates that the same did contain Bakhtiyarpur P.S. Case No. 131/07 dated 21.05.2007, yet neither the inquest report nor the post mortem report contain the said Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 14 Police Station case number, which is indicative of the fact that the formal First Information Report of the instant case was not drawn at 8:30 A.M. on 21.05.2007 but sometimes after the post mortem which was conducted at 4:00, 4:30, 5:00 P.M. In the aforesaid background, it is further pointed out that the formal First Information Report of the present case after being drawn on 21.05.2007 at 8:30 A.M. was dispatched through special messenger yet reached the court of A.C.J.M., Barh on 22.05.2007, which is hardly at a distance of few kilometres from the Police Station and situate on National Highway. Investigating Officer and the prosecution witnesses have not given any explanation for the delay in receipt of the First Information Report in court, which is also suggestive of the fact that the formal First Information Report was drawn much after the time indicated on the First Information Report.
10. Learned counsel for the appellants next contended that from the evidence of P.W. 1 Paragraph 1, P.W. 2 Paragraph 2, P.W. 3 Paragraph 2, P.W. 4 Paragraph 2, it is quite evident that when the prosecution party reached near the house of Accused No. 1, Accused No. 1 called the members of the prosecution party and made enquiry. While the prosecution party were answering the query occurrence took place and the accused persons were identified in the vapour light fixed in the electric pole near the house of Accused No. Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 15
1. From the contents of the First Information Report as also the evidence of the informant (P.W. 4) in Paragraph 24 it is further evident that three deceased fell at the same place where they were shot i.e. in Sahan/ vacant cemented land of Accused No. 1 or on the road abutting the Sahan of Accused No. 1. In this connection learned counsel has also referred to the evidence of Investigating Officer (P.W. 9) in Paragraph 6 that the place of occurrence is the vacant Sahan, Pacca land of Accused No. 1. Having referred to the aforesaid evidence learned counsel for the appellants with reference to the inquest report of the three deceased submitted that the dead body of the three deceased was not recovered from the place of occurrence, rather recovered from the two different places. The dead body of Sujeet Kumar and Raju Kumar was recovered from the futoosh field of Arun Sharma, son of Brij Nandan Sharma of Village Salimpur. The dead body of Amod Singh was recovered from boring siphon near Madhuban Asthan. Learned counsel further pointed out that the two different places from where the three dead bodies were recovered are not abutting or contiguous to each other, there is considerable distance between the two places. In this connection he also referred to the evidence of Investigating Officer (P.W. 9) in Paragraphs 7, 8 that there is distance of 600-700 yards between Sahan/ vacant cemented land of Accused No. 1 and the futoosh field of Arun Sharma Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 16 wherefrom two dead bodies were recovered. The boring siphon near Madhuban Asthan is at a distance of 300 yards from the field of Arun Sharma wherefrom third dead body was recovered and submitted that the eye-witnesses and the Investigating Officer have not explained either in the fardbeyan or in the evidence as to why the inquest report of the deceased was prepared at the police station in the morning between 9:00-9:45 A.M. though the dead bodies were recovered from the place of occurrence village. In this connection learned counsel also referred to the evidence of P.W. 2 Paragraphs 6, 20, 21, P.W. 3 Paragraphs 14, 15, 17, P.W. 4 Paragraph 20. Learned counsel further doubted the prosecution story about recovery of the three dead bodies in the morning between 7:30-7:45 A.M. in presence of the inquest witnesses, namely, Laxmi Prasad Ex-Pramukh of Bakhtiyarpur Block, resident of Village Naya Tola Bariyarpur, Karu Ram, resident of Village Teka Bigha both within Bakhtiyarpur Police Station, the two witness over inquest report (Exhibits-6/1, 6/2) and Kameshwar Singh, Rakesh Singh, both residents of Village Alipur witness over inquest report (Exhibit-6) as per the evidence of P.W. 3 Paragraph 17 that dead bodies were recovered by the Investigating Officer (P.W. 9) on 21.05.2007 between 7:30-7:45 A.M. in presence of P.Ws. 1, 2, 4 and other 10-15 villagers of P.W. 3 on the ground that none of the aforesaid inquest witnesses have been examined to corroborate the Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 17 evidence of P.W. 3 Paragraph 17. In this connection learned counsel further referred to the evidence of P.W. 3 in Paragraph 16 that he does not know either Laxmi Prasad or Karu Ram and then referred to the evidence of the informant (P.W. 4) in Paragraph 19 where he has deposed that the dead bodies were not recovered either in his presence or any of the eye-witnesses of the incident or any of his co- villagers.
11. Learned counsel for the appellants with reference to the dead body challan of the three deceased (Exhibit- 9 series) submitted that close perusal of the same would indicate that police station case number has been incorporated in the three dead body challan, although the same is not incorporated in the three inquest report. He further submitted that from close perusal of dead body challan, it would appear that dead bodies were sent for post mortem to Sub-Divisional Hospital, Barh directly from the place of occurrence village Salimpur and not from Bakhtiyarpur Police Station. He also pointed out that the doctor who received the dead bodies for post mortem identified the dead bodies on instructions from constable Deokant Jha, Chaukidar Nagina Paswan and Dashrath Paswan, which was received at Barh Sub-Divisional Hospital at 9:00 A.M. but in the column of case number in the post mortem report the same was not mentioned though the dead body challan contain Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 18 Bakhtiyarpur Police Station case number and with reference to the omission of the doctor to incorporate the police station case number in the post mortem report submission is made that not only the inquest report but also the dead body challan has been prepared afterwards and while preparing these documents the prosecution party has omitted to mention the police station case number in the inquest report as also in the post mortem report.
12. Learned counsel next assailed the prosecution story on the ground that as per the prosecution case, evidence the three deceased and the four eye-witnesses on the date, time of occurrence were on way to village Mogalpura from their village Alipur to attend Sradh feast in the house of Nawal Yadav at Mogalpura. The occurrence took place while the prosecution party reached near the house of Accused No. 1 in village Salimpur and submitted that during night or otherwise the shortest route for going from village Alipur to village Mogalpura is via Bihta railway crossing by path way by the side of railway track. In this connection he referred to the evidence of P.W. 1 Paragraphs 17 to 20 and submitted that for going to Mogalpura there is straight road which goes from the house of P.W. 1 in village Alipur and for going to Mogalpura one has to come to village Bihta where there is Devi Mandir on the northern side. Further north of Devi Mandir is the railway track. By the side of Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 19 railway track there is footpath which goes to village Mogalpura and between Alipur and Mogalpura there is no other village except Bihta. In this connection learned counsel referred to the evidence of informant (P.W. 4) in Paragraph 41 where he has stated that the path which he has taken for going to Mogalpura through Salimpur is unmetaled road measuring quarter kilometer through the lands meant for cultivation. In the light of the aforesaid prosecution evidence, learned counsel for the appellants submitted that for going to Mogalpura after Bihta Railway crossing one is required to come to south from Devi Mandir and thereafter he has to take turn towards east for going to Mogalpura, which is at a distance of one kilometer from Devi Mandir but if he comes to village Salimpur by moving south and then goes to village Mogalpura then the distance shall be more than two kilometers and further submitted that during night any person coming from village Alipur and going to Mogalpura may not take a longer route and on this account also the prosecution story is perhaps not correct and doubtful.
13. Learned counsel for the appellants further submitted that seizure of three empty cartridges of 9 MM 22KF of 03 or 02 size from the entrance of the house of Accused No. 1 on 21.05.2007 at 5:30 A.M. is indicative of the fact that the prosecution party, in order to support the prosecution case, created evidence which is contrary Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 20 not only to the ocular evidence but also to the objective finding of the Investigating Officer as deposed in Paragraph 6 of his evidence that the place of occurrence of the instant case is the Sahan/ vacant cemented land of Accused No. 1 which is bounded on the north by the soling road on which the three deceased and the four eye- witnesses were coming from village Alipur and going to village Mogalpura. South, east, west boundary of place of occurrence is the Baithka, residence and vacant land of Accused No. 1. The shots were fired from the Sahan/ vacant cemented land of Accused No. 1 and if such assertion is correct then there was no occasion for the cartridges to have been found, recovered from the front of the house, Baithka of Accused No. 1 as it is not even the case of the prosecution that the shots were fired from the house, Baithka of Accused No. 1. Learned counsel further submitted that seizure of the cartridges have been made violating the provisions of Sections 100, 102 of the Code of Criminal Procedure as copy of the seizure list was neither given to Accused No. 1 nor to any male, female member of his house nor sent to the Court soon after the same was made. Learned counsel submitted that attention of Investigating Officer (P.W. 9) was drawn in Paragraph 8 of his evidence to Paragraph 2 of the case diary where he has subsequently inserted the sentence that in course of search three empty cartridges of 9 MM were seized from the entrance Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 21 (Darwaja) of Accused No. 1, which was denied by P.W. 9. In view of the aforesaid Paragraph 2 of the case diary it is submitted that denial made by P.W. 9 in Paragraph 8 of his evidence is contrary to the actual record, Paragraph 2 of the case diary and it is for the Court to satisfy itself about the insertion made in the case diary about the recovery of the three cartridges from Darwaja of Accused No. 1. In this connection he also submitted that the seizure-list of cartridges though said to have been drawn on 21.05.2007 at 5:30 A.M. but information about the seizure of three empty cartridges was not given in column 9 of the formal First Information Report, which was also drawn on the same day at 8:30 A.M. and perhaps also not sent to the Court of A.C.J.M., Barh on 18.08.2007 along with the charge-sheet as column 10 of the charge-sheet is blank and does not contain any description about seizure of empty cartridges made on 21.05.2007. With reference to the aforesaid facts, it is submitted that the seizure of three empty cartridges from the entrance of Accused No. 1, according to learned counsel, is highly doubtful.
14. Learned counsel further submitted that the Investigating Officer has stated for the first time in Court that he found blood stains in the Sahan/ vacant cemented land of Accused No. 1 but no seizure of the blood stains was made from the place of occurrence, which is indicative of the fact that the Investigating Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 22 Officer was not fair and was under pressure to create/ manufacture evidence, document to implicate the appellants. Learned counsel further submitted that Investigating Officer (P.W. 9) in Paragraph 12 of his evidence has stated that seizure-list indicating seizure of two bamboo pieces from the field of Kamo Sharma on 21.05.2007 at 12.30 P.M. was forwarded to the Court of A.C.J.M., Barh on 14.08.2007 which is perhaps mistake as there is no order-sheet about receipt of the seizure-list in Court before receipt of the charge-sheet on 18.08.2007. There is one order passed by A.C.J.M., Barh after 06.08.2007 and before 18.08.2007, date whereof is not legible, which is torn in course of time, whereunder learned Magistrate directed for forwarding the material exhibits seized in the case to be sent to Forensic Science Laboratory for chemical examination.
15. Learned counsel further submitted that in the First Information Report no motive has been assigned for the alleged occurrence but during trial P.W. 1 in Paragraph 7 has deposed that occurrence took place due to old enmity between the villagers of Alipur and Salimpur. In cross-examination P.W. 1 Paragraph 31, however, admitted that after he became conscious till date of incident no case was instituted between the villagers of his village and that of Salimpur and he cannot file any document in this regard. In Paragraph 32 he further admitted that those who were going to Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 23 village Mogalpura for attending the feast had no enmity or dispute with the villagers of Salimpur. P.W. 2 has not asserted in his evidence about motive behind the occurrence. P.W. 3 in Paragraph 5 of his evidence deposed that occurrence took place due to old enmity between the villagers of Alipur and Salimpur but in the same paragraph has also admitted that he acquired consciousness at the age of 8 years and since then there has been no quarrel between the residents of two villages until the present occurrence. He further said in the same paragraph that while he was 18-20 years of age a litigation was instituted between the residents of the two villages but he is neither aware about the parties nor the subject matter of the litigation. He further said in the same paragraph that there is no document available of any litigation between the residents of the two villages. In Paragraphs 10, 11 P.W. 3 further stated that right from his childhood residents of Alipur were on visiting terms with the villagers of Salimpur and vice-versa and never there had been any assault between the residents of the two villages. He also stated in his evidence that in Salimpur there is middle, high school in which children of his village are also admitted. Salimpur Railway Halt is also used by the villagers of Alipur for boarding train. P.W. 4 in Paragraph 4 has stated that the occurrence took place due to caste, old enmity. In Paragraph 31 P.W. 4 admitted that all the witnesses of the Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 24 present case are of Yadav community and the accused persons are either Brahmin or Bhumihar. In Paragraph 30 P.W. 4 further admitted that during his lifetime (consciousness) there has been no litigation between the villagers of Salimpur and Alipur. Investigating Officer (P.W. 9) has also stated in Paragraph 11 of his evidence that while he remained posted as Officer-in-Charge of Bakhtiyarpur Police Station there was neither dispute between the villagers of Salimpur and Alipur nor there was dispute between the Bhumihars and Yadavas and to his knowledge First Information Report named accused persons and the deceased or their family members had also no dispute between them. P.W. 9 in Paragraph 12 stated that in village Salimpur there is old high school and boys of Alipur are also students in the said school. In the light of the aforesaid evidence of the eye- witnesses, P.Ws. 1 to 4 and the Investigating Officer (P.W. 9) learned counsel for the appellants submitted that prosecution has failed to substantiate the so called motive disclosed during recording of evidence and submitted that the present appellants including Accused No. 1, Ex-Mukhiya of village Salimpur have been falsely implicated in the morning of the occurrence at the instance of Lalu Mukhiya, the scribe of the written report and Pramukh Laxmi Prasad contrary to the assertions made in the written report submitted by the informant to the Investigating Officer of the case during night of the occurrence Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 25 at village Salimpur referred to in Paragraph 2 of the case diary as at the relevant time wife of Accused No. 1 was Mukhiya of Salimpur Gram Panchayat and she did not support Lalu Mukhiya, Laxmi Prasad in the election of Pramukh.
16. Learned counsel for the appellants further submitted that eye-witnesses, P.W. 1 to 4 and the three deceased were going to attend a feast on the occasion of Sradh in the house of Nawal Yadav of village Mogalpura who was examined by the Investigating Officer (P.W.9) and the Investigating Officer has stated in Paragraph 11 of his evidence that Nawal Yadav informed him that Sradh feast in his house was to be held on 21.05.2007, as such, according to learned counsel, the three deceased and the four eye-witnesses on the date, time of occurrence were not on way to the house of Nawal Yadav in village Mogalpura to participate in the Sradh feast. In this connection, it is also pointed out that generally Sradh feast is held during day time and there was no occasion for the members of the prosecution party to come for Sradh feast at 8:00 P.M. In this connection he also referred to Paragraph 2 of the case diary where Investigating Officer (P.W. 9) has written that the firing shots were heard by the Chaukidar around 22.30 hours. In this regard counsel for the appellants also referred to the evidence of P.W. 2 in Paragraph 14 where he deposed that the barber brought the printed invitation card over which name of Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 26 his village inviting the villagers at large to participate in Sradh feast in the house of Nawal Yadav of village Mogalpura. In Paragraph 41 P.W. 2 stated that he kept the card in the box but the same was neither produced during investigation nor during trial. In Paragraph 42 P.W. 2 was given suggestion that there was no Sradh feast in village Mogalapura at the house of Nawal Yadav on 20.05.2007, which was denied by P.W. 2. In this connection learned counsel also referred to the evidence of P.W. 3 Paragraph 26 where he was given suggestion that there was no Sradh feast in the house of Nawal Yadav on 20.05.2007 but the said suggestion was also denied by him.
17. Learned counsel for the appellants further submitted that as per the prosecution case occurrence took place at 8:00 P.M. on 20.05.2007 when the prosecution party, the residents of village Alipur were on their way to village Mogalpura to attend the Sradh feast, by which time darkness had already set in, members of the prosecution party and the accused persons being the residents of two different villages were not on regular visiting terms, as such, it may have been difficult for the members of the prosecution party to identify the assailants from their gait without there being any source of identification available at the place of occurrence. In the instant case, written report did not disclose any source of identification. During trial prosecution has developed the story of identification by Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 27 means of torch or through vapour light fixed in the electric pole. In this connection attention of P.Ws. 1 to 4 has been drawn in Paragraphs 29, 23, 27, 34 and 35 of their respective evidence that they have not informed the Investigating Officer about the source of identification. Investigating Officer (P.W. 9) in Paragraphs 14, 15, 18 has confirmed that P.Ws. 1 to 4 did not inform him about the source of identification by which they identified the assailants of the three deceased. In the light of the aforesaid evidence of the prosecution witnesses and the Investigating Officer that for the first time during trial the prosecution witnesses have asserted that they identified the accused persons in vapour, torch light but no such assertion was made by them before the Investigating Officer nor any torch was produced at the relevant time. Learned counsel further referred to the evidence of Investigating Officer (P.W. 9) in Paragraph 6 that at the place of occurrence he found electric, telephone pole fixed but did not confirm that vapour light was fixed to the electric pole. In this connection learned counsel also referred to the evidence of Abhay Ranjan (D.W. 1) Assistant Engineer, Bihar State Electricity Board who produced log book in the court below (Exhibits A/1, A/2) stating that he is custodian of the log book and with reference to the entries made in the log book submitted that there was no supply of electricity in village Salimpur on 20.05.2007 between 7:15 till 9:15 P.M. and Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 28 9:38 P.M. to 9:45 P.M.
18. Learned counsel for the appellants also assailed the conduct of the so called eye-witnesses. In this connection it is pointed out that the eye-witnesses, P.Ws. 1 to 4 are none-else but the own brothers of the three deceased as P.W. 1 is the brother of deceased Amod, P.Ws. 2, 3 are the brothers of deceased Sujeet and P.W. 4 is the brother of deceased Raju. Prosecution witnesses claim that within 15-20 minutes of the occurrence they left the place of occurrence village and reached their own village, which is dominated by their own community men so is the demographic status of the adjoining village Bihta, yet members of the prosecution party strangely enough did not take any steps to inform Bakhtiyarpur Police Station about the occurrence, although Bakhtiyarpur Police Station is their market place and for coming to Bakhtiyarpur from Alipur they are not required to come to village Salimpur. In this connection learned counsel for the appellants referred to the evidence of P.W. 1 Paragraphs 12, 41 P.W. 2 Paragraphs 6, 15, 30, 39, P.W. 3 Paragraph 20 and with reference to the said evidence submitted that it is quite evident that even though the brothers of four prosecution witnesses were killed, they did not make any effort to inform Bakhtiyarpur Police Station and the villagers about the occurrence during night. In this connection learned counsel also referred to the evidence of P.W. Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 29 4 in Paragraph 5 where he stated that in the night all the prosecution witnesses went to their respective houses and came to the police station next morning between 7:00-7:30 A.M. According to learned counsel aforesaid conduct of the so called eye-witnesses P.Ws. 1 to 4 is indicative of the fact that they were not the eye-witnesses of the alleged occurrence otherwise the four eye-witnesses ought to have transmitted information about the incident through telephone, mobile but also visited the police station during night of occurrence itself. As the prosecution witnesses have not taken any steps to inform Bakhtiyarpur Police Station about the occurrence during night, their conduct is indicative of the fact that they were perhaps not aware about the identity of the assailants and did not take any steps to inform Bakhtiyarpur Police Station during the night of occurrence.
19. Learned counsel for the appellants also doubted the manner of occurrence as disclosed in the First Information Report and the evidence of the prosecution witnesses. With reference to the evidence of P.W. 1 in Paragraphs 2, 27, 33, 34, 37 to 40, 42, 45, P.W. 2 in Paragraphs 4, 6, 15, 17, 25, 26, P.W. 3 in Paragraphs 20 to 23, 25, 26 and P.W. 4 in Paragraphs 2, 22, 23, 24, 26, 28, 29 learned counsel submitted that the three deceased and the four eye-witnesses were surrounded by the 10 named accused persons of the fardbeyan in a close radius and all those who surrounded the prosecution party Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 30 resorted to firing but it is strange that only three deceased sustained injury and the witnesses P.Ws. 1 to 4 were allowed to escape even without suffering any injury or scratch. According to learned counsel it is also strange that prosecution witnesses having escaped injury came to their house where others also came but neither the prosecution witnesses nor the villagers took any steps to inform Bakhtiyarpur Police Station about the occurrence during night though telephone etc. is available in the village and there was no impediment for the villagers to come to Bakhtiyarpur, which is their market place for informing Bakhtiyarpur Police Station about the occurrence as village Salimpur does not come in the way of the residents of Alipur to come to Bakhtiyarpur. It is submitted that the fact that the four eye-witnesses have not suffered any injury, having reached their village within half an hour of the occurrence yet not taking any steps to inform Bakhtiyarpur Police Station about the occurrence during night, is indicative of the fact that the prosecution witnesses were perhaps not aware about the identity of the assailants.
20. Learned counsel for the appellants in support of the submission that earliest version given by the informant (P.W. 4) during night of occurrence i.e. 20-21.05.2007 to the Officer-in- Charge by way of written report referred to in Paragraph 2 of the case diary but suppressed/ replaced by another written report of P.W. 4 Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 31 scribed by Lalu Mukhiya on 21.05.2007 at 8:30 A.M. duly signed by P.Ws. 1, 2, 3 (Exhibit-1) the basis of the First Information Report of the present case and such suppression/ replacement is fatal for the prosecution case as there is hardly any explanation to justify the suppression/ replacement of the earlier written report by Exhibit-1, placed reliance on the judgment of the Supreme Court in the case of Mohan Lal and others Vs. State of Rajasthan 2000 CRI.L.J. 2982 and submitted that replacement of the earlier written report by Exhibit 1 is only for the purpose of introducing the names of the appellants as the assailants of the three deceased at the instance of Lalu Mukhiya, resident of Village Teka Bigha and Laxmi Prasad, resident of Village Naya Tola Bariyarpur, the two local politician of Bakhtiyarpur Block. It is submitted that in the earlier written report submitted by P.W. 4 during night of occurrence to the Investigating Officer in the place of occurrence village P.W. 4 had not named the appellants as assailants, as such, to introduce the appellants as assailants of the three deceased in Exhibit 1 the earlier report had to be suppressed at the instance of Lalu Mukhiya, scribe of Exhibit-1, otherwise it would have been difficult for the prosecution to reconcile the two contradictory reports. In the case of Mohan Lal (supra) also the earlier written report was suppressed at the instance of scribe of the subsequent report Radhe Shyam Lohar. Placing reliance on the Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 32 case of Mohal Lal (supra) it is further submitted that there is hardly any explanation for not preparing the inquest report of the three deceased at the place from where the three dead bodies were recovered in the place of occurrence village Salimpur on 21.05.2007 between 7:30-7:45 A.M. as the dead bodies were sent to Bakhtiyarpur Police Station for preparing the inquest report in presence of Lalu Mukhiya, resident of Village Teka Bigha, Laxmi Prasad, resident of Village Naya Tola Bariyarpur, both within Bakhtiyarpur Police Station and two others i.e. Kameshwar Singh, Rakesh Singh of village Alipur without furnishing any explanation as to why the dead bodies were sent to Bakhtiyarpur Police Station and inquest report of the three deceased was not prepared at the place from where the three dead bodies were recovered. Failure to furnish such explanation also strikes a fatal blow on the prosecution case, more so, when the two strangers Lalu Mukhiya, the scribe of the written report, Laxmi Prasad and the two villagers of Alipur i.e. Kameshwar Singh and Rakesh Singh were not examined in support of recovery of the dead bodies on 21.05.2007 between 7:30-7:45 A.M. from the place of occurrence village.
21. Learned counsel for the appellants next relied on the judgment of the Supreme Court in the case of Prakash Vs. State of Karnataka 2014(3) Supreme 460 Paragraph 70 and submitted that Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 33 defect in investigation by not explaining the circumstances in which the three dead bodies were transported to the police station for preparing their inquest report not only creates doubt about the time, place of recovery of the dead bodies but also bring the prosecution case of assault by these appellants on the three deceased in the category of not proved and doubtful.
22. Learned counsel for the appellants next referred to the judgment of the this Court in the case of Ajodhya Singh and others Vs. State of Bihar 1988(1) Crimes 749 and submitted that in a case of murder if motive is introduced prosecution must prove the same otherwise adverse inference may be drawn against the prosecution.
23. Learned counsel for the appellants next referred to the judgment of the Supreme Court in the case of Syed Ibrahim Vs. State of Andhra Pradesh 2006 CRI.L.J. 4087 Paragraphs 10, 11 and submitted that Latin Maxim " falsus in uno falsus in omnibus"
(false in one thing, false in everything) may not be wholly applicable for appreciation of the evidence of the witnesses in a criminal case nonetheless it is the duty of the Court while appreciating evidence to separate the grain from the chaff. Even if, major portion of evidence is found to be deficient in case residue is sufficient to prove the guilt of the accused the conviction can be maintained on the residue Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 34 available in the evidence of a particular witness. Aforesaid doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances. In the present case, according to learned counsel, evidence of eye-witnesses (P.Ws. 1 to
4) is required to be thrown out for their failure to suppress the earliest version by Exhibit-1 and further for the reason that P.W. 1 stated in Paragraphs 41, 42 that after the occurrence he and other eye-
witnesses came to their village home and informed only the family members about the occurrence and not to the other villagers as also to the police station. It is submitted that had P.W. 1 been aware about the names of the assailants he must have disclosed the same not only to his family members but also to the villagers. Learned counsel next referred to the evidence of P.W. 2 in paragraphs 6, 30, 39 and submitted that he also did not inform any of the villagers about the occurrence, name of the assailants in the night of occurrence nor went to the police station during night nor interacted with the family members of other deceased and then referred to his evidence in Paragraph 15, which is quoted hereinbelow for ready reference :
15- ?kVukLFky ij tc eSa nl feuV rd jgk A bl nl feuV ds chp esa b/kj ls m/kj gksrk jgk FkkA eSa nl ianzg Msx ds vanj esa b/kj&m/kj gks jgk FkkA eSa dHkh iwjc dHkh if'pe dHkh mRrj dHkh nf{k.k Hkkxrk FkkA and suggested that P.W. 2 in view of his aforesaid evidence was perhaps not Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 35 available at the time, place of occurrence and his evidence is fit to be rejected. Learned counsel next referred to the evidence of P.W. 3 Paragraph 20 and submitted that he has stated in the said paragraph that he and other 10-15 villagers assembled at his house and discussed the matter about lodging the First Information Report by visiting police station during night itself but thereafter decided not to visit the police station during night and to take rest. It is submitted that P.W. 3 and others having discussed the desirability of lodging the information in the police station during night itself perhaps gave up the idea as they were not sure about the names of the assailants. In this regard learned counsel also referred to the evidence of informant (P.W. 4) in Paragraphs, 5, 12 and submitted that P.W. 4 also admitted in the said paragraph that he and other three eye-witnesses after the occurrence came to their village and went to their respective residences and met the Officer-in-Charge the next day in the morning between 7:00-7:30 A.M., who heard him for more than one hour.
24. Learned counsel for the appellants next referred to the judgment of the Supreme Court in the case of Shanker Vs. State of U.P. AIR 1975 Supreme Court 757 Paragraph 11 and submitted that First Information Report of a case can ordinarily be used only for the purpose of corroborating, contradicting or discrediting its author if examined and not otherwise. In the instant case, learned counsel Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 36 submitted that contents of written report (Exhibit-1), which is the basis of the First Information Report of the instant case, having been signed by not only the informant (P.W. 4) but also by other three eye- witnesses (P.Ws. 1 to 3) the said written report can very well be used for corroborating, contradicting or discrediting not only P.W. 4 but also P.Ws. 1 to 3.
25. Learned counsel next referred to the judgment of the Supreme Court in the case of Ram Kumar Pande Vs. The State of Madhya Pradesh AIR 1975 Supreme Court 1026 Paragraph 9 and submitted that no doubt First Information Report is a previous statement which can only be used to corroborate or contradict the maker of it but omission of important facts affecting the probabilities of the case are relevant under Section 11 of the Evidence Act. In the reported case the names of the eye-witnesses were not mentioned in the First Information Report which lead the courts to doubt their evidence and submitted that in the case in hand written report (Exhibit 1) which has been submitted after about 12 hours of the occurrence, that too after receiving expert advice from Lalu Mukhiya, the scribe of the written report and Laxmi Prasad Ex-Pramukh, witness of inquest report (Exhibits 6/1, 6/2) but not examined, yet did not indicate the source of identification i.e. vapour light fixed in the electric pole and the torch, the omission to indicate source of Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 37 identification in the written report is fatal for the prosecution case and for not indicating the source of identification in the earliest version prosecution case is fit to be disbelieved.
26. Learned counsel for the appellants next referred to the judgment of the Supreme Court in the case of State of Punjab Vs. Mohri Ram and others 1994 Supp. (1) Supreme Court Cases 632 Paragraphs 4, 5 and submitted that no doubt First Information Report is not substantive evidence but when the author of the report consistently speaks with a version given in the First Information Report then the Court can look into the evidence as well, as the earlier version is not for the purpose of mere scrutiny of the evidence but to examine whether the very version given by the witness could be accepted and if the Court finds the earliest version given is suspicious and if the witness completely falls in line with such a version then such evidence also becomes suspicious. In the instant case, learned counsel submitted that the First Information Report describes part played by each of the three assailants who fired shots from their fire-arms and the manner in which injuries were caused and the three victims fell down on the ground. Existence of vapour, torch light having not been mentioned in the First Information Report and introduced for the first time during recording of evidence in Court itself cast doubt about the availability of the source of Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 38 identification at the place of occurrence and in such view of the matter to indicate the manner in which repeated shots were fired by the three assailants as disclosed in the written report, according to learned counsel, does not appear convincing and can be termed as recording of evidence in a parrot like manner which creates suspicion about the veracity of the evidence.
27. Learned counsel for the appellants next referred to the judgment of the Supreme Court in the case of Sevi and another Vs. State of Tamil Nadu and another AIR 1981 Supreme Court 1230 and submitted that where the entire evidence is of partisan character impartial investigation can lend assurance to the Court to enable it to accept such partisan evidence. But where in a murder case the investigation itself is found to be tainted in the sense that the original First Information Report was suppressed by the police it becomes difficult for the Court to sift the evidence and the evidence of partisan eye-witnesses cannot be accepted.
28. Learned counsel for the appellants finally referred to the judgment of the Supreme Court in the case of Balaka Singh and others Vs. The State of Punjab AIR 1975 Supreme Court 1962. Perusal whereof indicates that Supreme Court having considered the evidence of the informant and the contents of the inquest, First Information Report concluded that First Information Report was Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 39 drawn not only after preparation of inquest report but also after the time indicated in the First Information Report and there was subsequent attempt to include the name of the accused persons in the inquest report, as is required by Punjab Police Manual and in appreciation of such fact held that the case of the prosecution becomes extremely doubtful and then acquitted even those who were convicted by the High Court.
29. Learned counsel for the appellants of Criminal Appeal (DB) No. 1003 of 2013 referred to the judgment of the Supreme Court in the case of Ajayab Singh and others Vs. State of Rajasthan 1986 CRI.L.J. 1495 Paragraphs 21, 22 and Nagesar Vs. State of Chhattisgarh (2014) 6 Supreme Court Cases 672 Paragraphs 3, 6, 10 to 14 and submitted that mere presence of the appellants with arms along with the assailants of the three deceased will not constitute offence under Sections 302/149 of the Penal Code unless there is further evidence to indicate that these appellants also had knowledge of the common object of the assembly of which the assailants were the member and committed the offence. In this connection he also submitted that there has been no recovery of any arms from these appellants. On merit of the evidence learned counsel pointed out that from the evidence of the prosecution witnesses, it is quite established that the deceased having suffered gun shot fell down Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 40 at the place where they suffered injury but the recovery of the dead body from the two different places far away from the place where shots were fired is indicative of the fact that prosecution has not been able to prove the place of occurrence in the present case.
30. Counsel for the State submitted that after P.Ws. 1 to 4 escaped the shoot out, came to their village, informed their family members about the occurrence and the name of assailants. They also discussed lodging of the case in the night itself by going to Bakhtiyarpur Police Station but perhaps did not come to police station as it was late night and came to the police station in the morning where written report of the informant (P.W. 4) was scribed by Lalu Mukhiya, on the basis of which First Information Report was registered against the appellants at 8:30 A.M. After registration of the First Information Report inquest of the three deceased was made at Bakhtiyarpur Police Station between 9:00-9:45 A.M. and then for dispatch of the dead bodies for post mortem three challans were prepared and the three dead bodies were sent to Barh Sub-Divisional Hospital for post mortem with the challan. Post mortem report(s), however, indicate that the three dead bodies were received in the hospital at 9:00, 9.30, 9.45 A.M. In this connection learned counsel for the State submitted that there may have been some discrepancy in indicating the time of drawal of inquest report and receipt of the dead Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 41 body mentioned in the three post mortem reports, but such discrepancy may not have any bearing on the consistent evidence of the four prosecution eye-witnesses of the occurrence (P.Ws. 1 to 4) and in the light of the testimony of P.Ws. 1 to 4 this Court should not only maintain the conviction of the appellants but also confirm the sentence, answer the death reference in affirmative and dismiss the appeal(s).
31. In view of the rival submissions, we first proceed to examine the submission as to whether written report of the informant (P.W. 4) dated 21.05.2007 (Exhibit-1) is the earliest version of the occurrence or there was any other written report of the informant handed over to the Officer-in-Charge, Bakhtiyarpur Police Station in the night of occurrence itself when he reached place of occurrence village after receipt of telephonic information about sound of firing being heard from near the house of Accused No. 1 from Chaukidar Nagina Paswan. In this connection, we refer to Column-3 (ka), (kha) of the formal First Information Report (Exhibit-11), whereunder date and time of occurrence, time of receipt of information about the occurrence in the police station is indicated as 20.05.2007, 8:00, 22:30 hours respectively. Besides in the body portion of the written report (Exhibit-1) there is clear assertion that in the night of occurrence itself information about the occurrence was given to the Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 42 police station, whereafter Officer-in-Charge, Bakhtiyarpur Police Station recovered the dead bodies. In this connection, further reference is to be made to Paragraph 2 of the case diary where Investigating Officer (P.W. 9) has written that telephonic information was given to the police station by Chaukidar Nagina Paswan at 22:30 hours that sound of firing shots is heard from near the house of Accused No. 1 and having received such information Investigating Officer (P.W. 9) proceeded for place of occurrence village at 22:30 hours where he received written report from the informant after he reached the place of occurrence village. The date of written report, however, has been inserted as 21.05.2007 in the case diary by putting „^‟ which is indicative of the fact that date of written report has been inserted later. P.W. 9 having received telephonic information from Chaukidar Nagina Paswan on 20.05.2007 at 22.30 hours came to place of occurrence village and received written report from the informant in the night, perhaps after midnight, and inserted in Paragraph 2 of the case diary the date of its receipt as 21.05.2007 after putting „^‟. Reference in this connection be also made to the evidence of the Investigating Officer (P.W. 9) in repeat Paragraph 12 at Page 154 of the paper book where he admits that in case diary Paragraph 2 he has written that informant (P.W. 4) gave him his written report in Salimpur village after he received telephonic Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 43 information about the occurrence and reached the village. In the said paragraph P.W. 9, however, has denied that he received the written report on 20.05.2007. Aforesaid denial is perhaps for the reason that the written report was received after midnight. Report referred to in Paragraph 2 of the case diary is not the basis on which First Information Report (Exhibit-11) has been drawn, as it is admitted by the prosecution party that First Information Report (Exhibit-11) has been drawn on the basis of written report (Exhibit-1) scribed by Lalu Mukhiya on 21.05.2007 at 8:30 A.M. in the premises of Bakhtiyarpur Police Station. In the circumstances, there is hardly any difficulty in concluding that the written report of the informant referred to in Paragraph 2 of the case diary and received by P.W. 9 at the place of occurrence village in the night of occurrence, may be before or after midnight, has been withheld by the prosecution, though in the same Paragraph 12 Investigating Officer (P.W. 9) has denied that he received any report on 20.05.2007 and suppressed the same. Mere bald denial by P.W. 9 in Paragraph 12 of his evidence that he did not receive any written report from the informant in the place of occurrence village during the night of occurrence is required to be considered in the light of his own admission in the same Paragraph 12 that in case diary Paragraph 2 he has written that informant (P.W.
4) gave him his written report in Salimpur village after he received Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 44 telephonic information about the occurrence and reached the village in the night. It is, thus, quite obvious that the bald denial by P.W. 9 that he did not receive any written report from the informant in the place of occurrence village during the night of occurrence is at the instance of the scribe of the written report (Exhibit-1) Lalu Mukhiya and Laxmi Prasad, the two local politicians who came to Bakhtiyarpur Police Station in the morning and became instrumental in drafting the written report (Exhibit-1) naming the appellants as assailant of the three deceased. It is also not understandable as to why the written report was scribed by Lalu Mukhiya at the police station when there is clear evidence of the prosecution witnesses (P.Ws. 1 to
4) that the prosecution witnesses and other villagers of Alipur came to Bakhtiyarpur Police Station in the following morning i.e. on 21.05.2007 between 7:00-7:30 A.M. and made their police statement before the Officer-in-Charge in the office room of the police station. Reference in this connection be made to the evidence of P.W. 1 Paragraph 26, P.W. 2 Paragraph 6, P.W. 3 Paragraphs 12, 13, 14 and P.W. 4 Paragraphs 5, 8 to 11, 17.
32. From the evidence of the prosecution witnesses, it is quite evident that the three deceased were shot either in the front area or on the road abutting the front area of the house of Accused No. 1 and they also fell down at the same place where they suffered gun Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 45 shot but the dead bodies, as per the inquest reports of the three deceased, have been recovered from the two different places, namely, futush field of Arun Sharma and siphon boring near Madhuban Asthan in village Salimpur vide Exhibits 6/1, 6/2, 6 without indicating the time of recovery of the dead body in Exhibits 6, 6/1 and having shown 9:00 A.M. as the time of recovery of the dead body in Exhibit-6/2. There is distance of 600-700 yards between Sahan of Accused No. 1 and the futush field of Arun Sharma wherefrom two dead bodies were recovered. Boring siphon near Madhuban Asthan is at a distance of 300 yards from the field of Arun Sharma wherefrom third dead body was recovered. It appears from the contents of the written report that dead bodies were recovered in the night of occurrence. From the evidence of the prosecution witnesses; it appears the dead bodies reached the police station before arrival of the prosecution witnesses at the police station between 7:00-7:30 A.M. In view of the aforesaid contents of the written report, prosecution evidence, it was for the prosecution to have explained as to why the inquest reports of the three deceased were drawn at Bakhtiyarpur Police Station without indicating the time of recovery of the dead body in two of the inquest reports (Exhibits 6, 6/1) and indicating 9:00 A.M. as the time of recovery of the third dead body in Exhibit 6/2. It was also for the prosecution to have Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 46 explained as to why inquest of the three dead bodies was not performed at the place from where the dead bodies were recovered at 9:00 A.M. as shown in Exhibit-6/2. Failure, to mention time of recovery of the dead body in two of the inquest reports (Exhibits 6, 6/1), to explain why the inquest proceedings were conducted at Bakhtiyarpur Police Station and not at the place of recovery of the dead bodies is suggestive of the fact that dead bodies were recovered, dispatched to the police station in the night of occurrence, as stated in the written report perhaps in absence of the inquest witnesses and that is why the inquest witnesses have chosen not to support the inquest proceedings by examining themselves as witness to support the prosecution. Inquest of the three deceased was conducted at Bakhtiyarpur Police Station on 21.05.2007 at 9:00, 9:30, 9:45 A.M. whereafter the dead bodies were sent to Barh Sub-Divisional Hospital for post mortem, which is at a distance of 20-25 Kilometers, yet the three dead bodies reached Barh Sub-Divisional Hospital at 9:00, 9:30, 9:45 A.M. Inquest having been performed at 9:00, 9:30, 9:45 A.M. none of the three dead bodies could have reached Barh Sub- Divisional Hospital at 9:00 A.M. In the circumstances, there is no difficulty in concluding that either the time of performing the inquest, as shown in the inquest reports, or the time of receipt of the dead body, as shown in the post mortem reports, is not correct and Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 47 mentioned only to complete the formalities raising doubt about the fairness of the investigation and the complicity of the appellants in the incident.
33. P.Ws. 1 to 4 and the three deceased on the date, time of occurrence were on way from their village Alipur to attend Sradh feast in the house of Nawal Yadav in village Mogalpura. Alleged occurrence is said to have taken place when the prosecution party reached near the house of Accused No. 1, which according to the prosecution party, is the shortest route for going to village Mogalpura from village Alipur. Learned counsel for the appellants with reference to the sketch map as also the revenue map of the area endeavoured to submit that the route taken by the prosecution party for coming to village Mogalpura is perhaps not the shortest route as the shortest route is via Bihta Railway Crossing and the path way by the side of the railway track. In this connection, reference was made to the evidence of P.W. 1 Paragraphs 17 to 20, P.W. 4 Paragraph 41. The route taken by the members of the prosecution party for coming to village Mogalpura, may or may not be the shortest route, but we are required to consider the intrinsic value of the prosecution evidence that the three deceased were shot by these appellants and the appellants were identified by P.Ws. 1 to 4 in the night of occurrence by the prosecution witnesses in the vapour light affixed in Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 48 the electric pole, torch light and the prosecution witnesses informed the Investigating Officer (P.W. 9) about the source of identification i.e. torch, vapour light fixed in the electric pole near the house of Accused No. 1. In this connection, attention of P.Ws. 1 to 4 was drawn in Paragraphs 29, 23, 27, 34 and 35 of their respective evidence that they did not inform the Investigating Officer (P.W. 9) about the source of identification. Investigating Officer (P.W. 9) in Paragraphs 14, 15, 18 of his evidence also confirmed that P.Ws. 1 to 4 did not inform him about any source of identification by which they identified the assailants of the deceased in the night of occurrence. It is, therefore, evident that P.Ws. 1 to 4, for the first time, deposed in Court that they identified the appellants as the assailants of the three deceased in vapour, torch light and such evidence cannot be accepted.
34. In the aforesaid background, we have no option but to doubt the manner of occurrence as disclosed by the prosecution in the written report (Exhibit-1) and the evidence of P.W. 1 Paragraphs 2, 27, 33, 34, 37 to 40, 42, 45, P.W. 2 Paragraphs 4, 6, 15, 17, 25, 26, P.W. 3 Paragraphs 20 to 23, 25, 26 and P.W. 4 Paragraphs 2, 22, 23, 24, 26, 28, 29 that three deceased and the four eye-witnesses were surrounded by ten named accused in the written report in a close radius and those who surrounded the members of the prosecution party resorted to firing as it is surprising that only the three deceased Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 49 sustained injury and P.Ws. 1 to 4 escaped without suffering any injury or scratch. In this connection, special reference is required to be made to the evidence of P.W. 2 Paragraph 15, which is already quoted in Paragraph 23 above.
35. The conduct of the prosecution witnesses (P.Ws. 1 to 4), the brothers of the three deceased also does not appear to be satisfactory and inspire confidence in their testimony in view of their own claim that they reached home in village Alipur within 15-20 minutes of the occurrence but did not take any steps to inform either the villagers or Bakhtiyarpur Police Station, which is their market place and for coming to Bakhtiyarpur they are not required to come through village Salimpur, which is evident from the evidence of P.W. 1 Paragraph 41, P.W. 2 Paragraphs 6, 15, 30, 39, P.W. 3 Paragraph 20 and P.W. 4 Paragraph 5 and came to Bakhtiyarpur police station next morning between 7:00-7:30 A.M. Aforesaid conduct is indicative of the fact that perhaps P.Ws. 1 to 4 had not identified the assailants otherwise they must have taken steps to inform the villagers and the police about the name of the assailants in the night itself.
36. In view of the rival submissions of the parties noted in Paragraphs 8 to 30 above and our appraisal of the prosecution evidence, both documentary and ocular, in Paragraphs 31 to 35 Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 50 above, we have no option but to answer the reference in negative and to grant benefit of doubt to the appellants. Appeals are allowed. Judgment/order dated 21.09.2013/27.09.2013 is set aside. Appellants are in jail custody. They are directed to be released forthwith, if not wanted in any other case.
(V.N. Sinha, J.) I agree Prabhat Kumar Jha, J :
(Prabhat Kumar Jha, J.) N.A.F.R./Rajesh/ P.K.P./Arjun U T Patna High Court D. REF. No.12 of 2013 dt.26-09-2014 51