Patna High Court
Nagendra Singh vs State Of Bihar on 12 December, 2017
Author: Anil Kumar Upadhyay
Bench: Chief Justice, Anil Kumar Upadhyay
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.79 of 1994
(Against the judgment of conviction and order of sentence
dated 11.02.1994 passed by Shri J.P. Paul, 5th Additional
Sessions Judge, Patna in S.T. No. 27/84/24/87, arising out of
Naubatpur P.S. Case No. 47/82)
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Nagendra Singh, son of Sant Singh, resident of village-Sawarshak, P.S.-Naubatpur,
District-Patna.
.... .... Appellant/s
Versus
State of Bihar
.... .... Respondent/s
with
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Criminal Appeal (DB) No. 160 of 1994
Arising Out of PS.Case No. -null Year- null Thana -null District- PATNA
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Deo Narayan Singh
.... .... Appellant/s
Versus
State of Bihar
.... .... Respondent/s
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Appearance :
(In CR. APP (DB) No.79 of 1994)
For the Appellant/s : Mr. Ajay Kumar Thakur, Sr. Advocate
Mr. Jagjit Roshan, Advocate
Mr. Apul, Advocate
Mr. Kumar Virendra Narayan
Mr. Rajeev Ranjan, Advocate
For the Respondent/s : Mr. Binod Bihar Singh, A.P.P.
(In CR. APP (DB) No.160 of 1994)
For the Appellant/s :
For the Respondent/s :
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
Date: 12-12-2017
Two criminal appeals (Cr. Appeal No. 79 of 1994 and
Cr. Appeal No. 160 of 1994) were filed by the two appellants against
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
the judgment of conviction and order of sentence dated passed by 5 th
Additional Sessions Judge, Patna in Sessions Trial No. 27/84/24/87
whereby the appellants were convicted for the offence under section
302/34 of the Indian Penal Code and they have been sentenced to
undergo R.I. for life and a fine of Rs. 2500/- and during the pendency
of the appeal, the sole appellant of Cr. Appeal No. 160 of 1994, Deo
Narayan Singh died and as such Cr. Appeal No. 160 of 1994 stands
abated.
1. The prosecution case, in brief, is that A.S.I., H.N.
Singh of Naubatpur P.S. camping at village-Sabarchak recorded Fard-
beyan of Raj Ballan Singh at 21.30 hours on 17.3.82. The informant
Raj Ballan Singh, in his Fard-beyan stated that on this very date at
about 9.00 P.M. he was sitting at the door of his house alongwith with
his wife. He saw in the flash of his torch light that Nagendra Singh,
Dev Narayan Singh, Chhotan Singh and other two or three persons
coming from southern side in the lane situated in front of his house.
He saw Nagendra Singh and Deo Narayan Singh armed with country
made pistols and they caused shot from their pistols which hit his
father Hanslal Singh who was coming in the house from northern side
through the lane. He and his wife began to make Hulla. The accused
persons fled away from there. On his Hulla his elder brother Mahima
Singh came out running from inner courtyard of his house. He lifted
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
his injured father and took him to the house and saw fire arm injury.
The injury on the person of his father was tied with clothes. After
some time, A.S.I. H.N. Singh with police force came to his house
where he gave his fard-beyan in respect to the occurrence. The genesis
for the occurrence is enmity between him and Nagendra Singh in
respect of wall and two days before the occurrence there had been hot
discussion between his father and the accused Nagendra Singh.
2. The police after investigation submitted charge-sheet
for offence under section 302/307/34 of the Indian Penal Code and the
case was committed to the court of sessions. On framing of charge,
the accused pleaded not guilty and claimed that they have been falsely
implicated in this case on account of land dispute. They also pleaded
that the deceased was killed by unknown at a different place and as
such on account of previous enmity they have been falsely implicated
in this case.
3. On behalf of the prosecution, five witnesses were
examined.
P.W.1 is the wife of the informant. P.W.2 is the doctor
who conducted post-mortem. P.W.3 is the informant of the case.
P.W.4 is I.O. of the case and P.W.5 is the then Officer-in-charge of
the Naubatpur Police Station.
4. The trial court on scrutiny of the evidence convicted
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
the appellants for offence 302/34 of the Indian Penal Code.
5. Mr. Ajay Kumar Thakur appearing on behalf of the
appellant has submitted that in the instant case Fard-beyan was
allegedly recorded at the place of occurrence on 17.3.82 but formal
FIR was drawn on 18.3.82 at 8:15 and it took six days time to reach
the SDJM., Danapur as only on 24.3.82 the SDJM, Danapur has seen
the FIR and on account of unexplained inordinate delay in sending the
FIR to the court.
6. Mr. Thakur submitted that the appellant has been
falsely implicated in this case at the instance of Ramprit Yadav
against whom a case for committing murder of uncle of the appellant
Nagendra Singh was lodged and he was convicted in the said case.
7. Mr. Thakur further submitted that in the instant case
Vinay Prasad and Mahima Singh were cited as eye-witnesses in the
Fard-beyan but neither Vinay Prasad nor Mahima Singh was
examined on behalf of the prosecution and there is absolutely no
explanation for non-examination of the two FIR witnesses in the
instant case and as such he submits that non-examination of the FIR
witnesses in the instant case renders prosecution case doubtful.
8. Mr. Thakur next submitted that police was camping at
the residence of Vinay Prasad Singh and even Magistrate was posted
but surprisingly enough no effort was made by the prosecution to
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
record statement of the Magistrate who was stationed in the same
village where the occurrence took place. Mr. Thakur submitted that
there is a major contradiction in the version of the witnesses as to the
occurrence in the Fard-beyan. The informant has stated that the
occurrence took place in the night and he alongwith his wife sitting at
the door of the house have seen the occurrence in the torch light. The
appellants Nagendra Singh, Dev Narayan Singh and Chhotan Singh
equipped with Desi pistols fired from their pistols which caused injury
and on raising alarm by the informant and his wife, the accused
persons fled away. The motive behind the crime was land dispute. The
informant in his deposition in the court has stated a different story
that only Nagendra Singh and Dev Narayan Singh equipped with
pistols and Chhotan Singh was empty hand in the court he introduced
a new story that on hearing sound he flashed torch and saw 4-5
persons including the appellants Nagendra Singh and Deo Narayan
Singh and Chhotan Singh he saw his father was coming from northern
and he was shot by appellant Nagendra Singh and Deo Narayan Singh
which caused injury and the incident was seen by his uncle Mahima
Singh. He further stated before the court that his wife and Mahima
Singh took the injured to inside the house and given first aid then the
ASI alongwith police reached the place of occurrence and recorded
his Fard-beyan. This witness was confronted with the previous
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
statement before the DSP where he has stated that his father was
found dead near a tree and he has not seen anyone fleeing away after
the place of occurrence. In his cross-examination, he has admitted that
Ramprit Yadav was accused for committing murder of uncle of
appellant Nagendra Singh and he was convicted in the said case. This
witness has admitted that the place from where he has stated to have
seen the occurrence, there are two walls and place of occurrence is not
visible. This witness has admitted in paragraph 16 the previous
enmity. He has admitted that he has not met Vinay Prasad on the date
of occurrence. In paragraph-18 he has stated that there was no civil
dispute pending in the court and the dispute was resolved in the
village itself. Vinay Prasad met him at Patna junction.
9. Mr. Thakur referring to the deposition of P.W.1
submitted that this witness in her deposition admitted that Chhotan
Singh was empty hand which contradicts the statement of the
informant in the Fard-beyan. In her statement, this witness has
admitted in paragraph-11 that a dispute with Nagendra Singh is
pending for the last 7-8 years for erecting boundary. This witness has
stated that on the date of occurrence none has actually seen the crime
post-mortem report indicates some doubt as it runs contradictory to
deposition of the P.W.-1. Referring to the deposition of P.W.-1 para-5
Mr. Thakur submitted that conduct of the P.W.1 is most artificial as
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
she has stated that when deceased fell down after sustaining gun-shot
injury no blood stained came. She has also stated that she has not
disclosed to anyone about the occurrence of the assailants. She was
suggested that place of occurrence is not visible from the place of
scene where they were sitting they alleged to have seen the occurrence
due to the boundary wall. The defence has made specific suggestion
that the occurrence took place at a different place near a tree and they
(witnesses) have not seen the occurrence and appellants was falsely
implicated after due consultation with Ramprit Yadav and his son
Vinay Prasad.
10. Mr. Thakur submitted that in the instant case the
place of occurrence as suggested by the prosecution has not been
proved. Referring to the deposition of the P.W.1 and P.W.3 he
submitted that alleged place of occurrence is not visible in the night
from the place where the P.W.1 and P.W.3 claimed to have seen
sitting at door as in between place of occurrence and door there is a
wall and as such it was not possible for them for see the place of
occurrence in the dark.
11. Mr. Thakur submitted that the prosecution has not
been able to explain the reason for non-examination of the two Fard-
beyan witnesses to the contrary the deposition of P.W.-3 that he has
not met Vinay Prasad makes the prosecution case mysterious. As per
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
P.W. 3 on the date of occurrence and after the occurrence he met
Vinay Prasad at Patna Junction creates serious doubt about the
prosecution case. He submits that enmity is the reason for false
implication in a case where the informant and other witnesses have
not seen the actual occurrence and in such a situation when real
miscreants who committed the crime was not known to the
prosecution, the chance of false implication is most probable and in
the instant case account of admission of the witnesses that the place of
occurrence is not visible from the place from the door of the house
where P.W.1 and P.W.3 were allegedly sitting in the night, the
admitted fact of previous enmity and non-examination of the material
witnesses renders the prosecution case under serious doubt. The
improbability of the prosecution case of not finding any blood stain at
the place of occurrence where the deceased shot at also creates serious
doubt.
12. Mr. Binod Bihari Singh, learned counsel appearing
on behalf of the State submitted that trial court has committed no error
in convicting the appellant in commission of crime as eye-witnesses
have claimed to have seen the occurrence and identified the appellants
committing the crime.
13. We have gone through the materials and the
arguments of Mr. Ajay Kumar Thakur appearing on behalf of the
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
appellant and counsel for the State. We have also gone through the
materials available on record including the deposition of the
prosecution witnesses only two witnesses are relevant for the purpose
of actual account of the occurrence and identification of the accused.
From the deposition of P.W.1 and P.W.3 who claimed to be eye-
witnesses there are contradictions firstly in the definite statement
before the police in the Fard-beyan and the statement before the court
there is variation in the manner of identifying the accused in the Fard-
beyan there was definite story that Chhotan Singh was equipped with
pistols but in the court P.W.1 and P.W.3 have admitted that he was
empty hand. They have admitted in the Fard-beyan as well as in the
court there is previous enmity. The deposition of P.W.1 creates
serious doubts about the place of occurrence as the place where the
deceased was shot and deceased fell down on account of sustaining
gun-shot injury the story of P.W.1 that blood was oozing out of the
injury nor any blood was found at the place where the deceased was
fell down is again suspicious. This account is most unrealistic. In
addition thereto, the prosecution has not explained the reason for non-
examination of the Fard-beyan witnesses namely, Vinay Prasad and
Mahima Singh. The statement of the P.W.3 in paragraph-9 that Vinay
a Fard-beyan witness has signed on the Fard-beyan at Patna junction
also falsifies the prosecution story. Thus, the cumulative effect of
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
non-examination of the Fard-beyan witnesses who could have
unfolded the true narratives of the incident goes against the
prosecution as there is no explanation for non-examination of the two
Fard-beyan witnesses. In fact, non-examination of the material
witnesses adversely affect the prosecution case as in the instant case
due to non-examination of the Fard-beyan witnesses the defence has
suffered prejudice.
14. In fact, the Apex Court has the occasion to consider
effect for non-examination of the material witnesses in the case of
Takhaji Hiraji vs Thakore Kubersing Chamansing & Ors. : (2001) 6
SCC 408, in para 19 of which it has been held as follows:-
"So is the case with the criticism levelled by
the High Court on the prosecution case finding fault
therewith for non-examination of independent
witnesses, it is true that if a material witness,
which Patna High Court CR. APP (DB) No.358 of
1994 dt.25-11-2017would unfold the genesis of the
incident or an essential part of the prosecution case,
not convincingly brought to fore otherwise, or
where there is a gap or infirmity in the prosecution
case which could have been supplied or made good
by examining a witness which though available is
not examined, the prosecution case can be termed
as suffering from a deficiency and withholding of
such a material witness would oblige the Court to
draw an adverse inference against the prosecution
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
by holding that if the witness would have been
examined it would not have supported the
prosecution case. On the other hand if already
overwhelming evidence is available and
examination of other witnesses would only be a
repetition or duplication of the evidence already
adduced, non-examination of such other witnesses
may not be material. In such a case the Court ought
to scrutinize the worth of the evidence adduced. The
court of facts must ask itself whether in the facts
and circumstances of the case, it was necessary to
examine such other witness, and if so, whether such
witness was available to be examined and yet was
being withheld from the court. If the answer be
positive then only a question of drawing an adverse
inference may arise. If the witnesses already
examined are reliable and the testimony coming
from their mouth is unimpeachable the Court can
safely act upon it uninfluenced by the factum of
non-examination of other witnesses. In the present
case we find that there are at least witnesses whose
presence at the place of the incident and whose
having seen the incident cannot be doubted at all. It
is not even suggested by the defence that they were
not present at the place of the incident and did not
participate therein. The injuries sustained by these
witnesses are not just minor and certainly not self-
inflicted. None of the witnesses had a previous
enmity with any of the accused persons and there is
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
apparently no reason why they would tell a lie. The
genesis of the incident is brought out by these
witnesses. In fact, the presence of the prosecution
party and the accused persons in the chowk of the
village is not disputed. How the vanity of Thakores
was hurt leading into a heated verbal exchange is
also not in dispute. Then followed the assault. If the
place of the incident was the chowk then it was a
sudden and not premeditated fight between the two
parties. If the accused persons had reached their
houses and the members of the prosecution party
had followed the mind opened the assault near the
house of the accused persons then it could probably
be held to be a case of
self-defence of the accused persons in which
case non- explanation of the injuries sustained by
the accused persons would have assumed
significance.
The learned Sessions Judge has on
appreciation of oral and circumstantial evidence
inferred that the place of the incident was the
chowk and not a place near the houses of the
accused persons. Nothing more could have been
revealed by other village people or the party of tight
rope dance performers.
The evidence available on record shows and
that appears to be very natural, that as soon as the
melee ensued all the village people and tight rope
danceperformers took to their heels. They could not
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
have seen the entire incident. The learned Sessions
Judge has minutely scrutinized the statements of all
the eye-witnesses and found them consistent and
reliable. The High Court made no effort at
scrutinizing and analyzing the ocular testimony so
as to doubt, if at all, the correctness of the several
findings arrived at by the Sessions Court. With the
assistance of the learned counsel for the parties we
have gone through the evidence adduced and on our
independent appreciation we find the eye-witnesses
consistent and reliable in their narration of the
incident. In our opinion non-examination of other
witnesses does not cast any infirmity in the
prosecution case."
15. In the instant case there is unexplained inordinate delay of
six days in sending the formal FIR to the court.
16. The delay in sending the FIR in the instant case is very
crucial. In fact, the Apex Court has the occasion to consider the effect
of delay in sending the FIR.
17. A reference in this connection may be made to the case of
State of Punjab vs. Tarlok Singh reported in (1972) 3 SCC 869
reads as follows:-
First, the High Court noticed the suspicion
created by the circumstance that the copy of the
First Information Report purported to have been
lodged at 3.45 p.m. did not reach the Magistrate at
Dasuya till 8 a.m. the next date even though it was
sent through a special messenger. The distance
between the scene of occurrence and Dasuya was
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
only 15 or 16 miles. The inference sought to be
drawn is that, in fact, the report was not lodged at
3.45 p.m., but at a much later hour, after the police
had arrived at the scene of occurrence and there
were consultations to decide what version should be
put forward and who should be implicated for the
murder. The prosecution, in fact, made no attempt
to explain this delay. Such delay, thus, casts doubt
on the prosecution version that the report was
lodged at 3.45 p.m. without lapse of unnecessary
time.
18. The Apex Court has reiterated the same principle in AIR 1976
SC 2423 para-5 and 9 which reads as follows:-
Mr. Frank Anthony appearing for
appellant Ishwar Singh submitted that in affirming
the Judgment of the trial Court, the High Court also
overlooked certain important aspects of the case that
the Sessions Judge had failed to consider. He pointed
out that the F.I.R. which is stated to have been
lodged at 9.05 A. M. on February 14, 1973 was sent
out from the police station the next day, February
15; the time when it was despatched is not stated, but
it appears from the record that the Magistrate
received it on the morning of February 16. The
Court of the Magistrate was nearby, which makes it
difficult to understand why the report was sent to
him about two days after its stated hour of receipt at
the police station. Section 157 of the CrPC, 1898 as
well as of 1973 both require the first information
report to be sent "forthwith" to the Magistrate
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
competent to take cognizance of the offence. No
explanation is offered for this extraordinary delay in
sending the report to the Magistrate. This is a
circumstance which provides a legitimate basis for
suspecting, as Mr. Anthony suggested, that the first
information report was recorded much later than the
stated date and hour affording sufficient time to the
prosecution to introduce improvements and
embellishments and set up a distorted version of the
occurrence. In this case the suspicion hardens into a
definite possibility when one finds that the case made
in Court differs at least in two very important
particulars from that narrated in the F.I.R. Mahabir
Singh, who lodged the first information report,
stated in-Court that he had invited some people to
his house to effect a settlement between him and
Ishwar Singh, and that he had also sent Ghanshyam
to call Ishwar Singh there. The F.I.R. does not
mention anything like this. From the F.I.R. it
appears as if the accused persons came uninvited to
his house, demanded why he had demolished the
drain, and started assaulting him and the other
persons who were present there. It is also difficult to
understand why Mahabir should invite anyone to his
house for a settlement, if really Ishwar Singh had
permitted him to demolish the drain as he claimed.
Further, the F.I.R. does not mention that Mahabir
and Satyapal wielded lathis in their defence when
attacked and that this resulted in some of the
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
accused getting injured; but that is what both
Mahabir (P.W. 1) and Satyapai (P.W. 2) stated in
their evidence in Court. These variations relate to
vital parts of the prosecution case, and cannot be
dismissed as minor discrepancies. In such a case, the
evidence of the eye-witnesses "cannot be accepted at
its face value", as observed by this Court in Mitter
Sain v. State of U.P. .
We have pointed out that the trial Court
in convicting the appellants overlooked certain
significant features of the case, namely, the
inordinate and unexplained delay in despatching the
first information report to the Magistrate; the
difference in the account given by the prosecution
witnesses and as appearing from the first
information report of the occurrence; the absence of
any statement in the first information report as to
the injuries received by some of accused, and the
non-examination of material witnesses. The High
Court in affirming the Judgment of the trial Court
also failed to advert to these circumstances. We do
not therefore think that the case against the
appellants has been proved beyond reasonable
doubt. The appeals are accordingly allowed and the
Order of conviction and the sentences passed on the
appellants are set aside We direct that the appellants
be set at liberty forthwith.
19. Considering the totality facts situation, the non-
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
examination of Fard-beyan witnesses and unexplained inordinate
delay of six days in sending the FIR coupled with previous enmity
and the improbability of seeing the occurrence from the place of
where the two witnesses were sitting and the unrealistic story of no
blood stain at the place of occurrence creates serious doubts about the
prosecution case, we find substance in the submission of Mr. Thakur
that the deceased was killed at a different place near a tree and the
actual account of the crime was not seen by the P.Ws. 1 and 3 and
due to previous enmity the appellant was implicated in this case.
20. In view of the Apex Court judgment discussed
hereinabove and on consideration of the totality of the facts situation,
we are of considered view that the conviction of the appellant in the
aforesaid circumstances where there is motive of false implication
due to previous enmity and improbability of the witnesses seeing the
actual account of crime from the door of their house and absence of
blood stain at the place of occurrence and non-examination material
witnesses and unexplained inordinate delay of six days in sending the
FIR are definte circumstance which creates serious doubt in
participation of the appellant in the crime and under the aforesaid
circumstances, it is not safe to convict the appellant and extending the
benefit of doubt, we set aside judgment of conviction passed by the
by Shri J.P. Paul, 5th Additional Sessions Judge, Patna in S.T. No.
Patna High Court CR. APP (DB) No.79 of 1994 dt.12-12-2017
27/84/24/87and allow the appeal.
21. Since the appellant is on bail, he is discharged from the liability of bail bonds.
Ravi/- (Rajendra Menon, CJ) (Anil Kumar Upadhyay, J) AFR/NAFR NAFR CAV DATE N/A ploading Date 23.12.2017 Transmission 23.12.2017 Date