Patna High Court
Brij Nandan Singh vs State Of Bihar on 29 January, 2010
Author: Rakesh Kumar
Bench: Dharnidhar Jha, Rakesh Kumar
CRIMINAL APPEAL No.568 OF 2004
Against the Judgment of conviction dated 8th July 2004 and order of
sentence dated 10th July,2004 passed by the 5th Additional Sessions
Judge, Bhojpur at Ara in Sessions Trial No.221 of 2001, arising out of
Sahar P.S. Case No.15 of 2001
------------
1.ASHOK KUMAR SINGH
2. Bhola Prasad Singh
3. Ram Pravesh Singh
4. Manoj Kumar Singh--------------------------------------(Appellants)
Versus
STATE OF BIHAR-----------------------------------------(Respondents)
WITH
CR. APP (DB) No.604 oF 2004
BRIJ NANDAN SINGH--------------------------------------(Appellant)
Versus
STATE OF BIHAR------------------------------------------(Respondents)
For the Appellants :M/S Rana Pratap Singh, Sr. Advocate,
Sumant Singh, and
Baxi S.R.P. Sinha, Advocates.
For the Informant : M/S Kanhaiya Prasad Singh, Sr. Advocate
Kamla Kant Singh, Atul Bihari, and
Dhiraj Singh, Advocates.
For the State : Mr.Ashwini Kumar Singh, A.P.P.
PRESENT
THE HON'BLE MR. JUSTICE DHARNIDHAR JHA
THE HON'BLE MR. JUSTICE RAKESH KUMAR
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Rakesh Kumar,J. Heard Sri Rana Pratap Singh, Senior Advocate and Sri
Bakshi S.R.P. Sinha, Advocate appearing on behalf of the
appellants and Sri Ashwini Kumar Sinha, Addl.Public Prosecutor
for the Respondent. We have also heard Sri Kanhaiya Prasad Singh,
learned Senior Counsel for the informant.
2. Both the appeals arise out of Judgment of conviction
dated 8th July,2004 and order of sentence dated 10th July,2004 , and
as such, both the appeals were heard together and ,accordingly, are
being disposed of by this common Judgment.
3. The appellants have challenged their order of
conviction and sentence passed in Sessions Trial No.221 of 2001 by
5th Addl.Sessions Judge, Bhojpur at Ara, whereby they were held
guilty and convicted for the offences under Sections 302/34 ,307/34
of the Indian Penal Code and 27 of the Arms Act and all the
appellants were sentenced to rigorous imprisonment for life for the
offence under Section 302/34 of the Indian Penal Code . They were
further sentenced to undergo rigorous imprisonment for 10 years
for the offence under Section 307/34 of the Indian Penal Code and
also to undergo rigorous imprisonment for four years for the
offence under Section 27 of the Arms Act. All the sentences passed
against the appellants were ordered to run concurrently. No sentence
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of fine has been passed.
4. The prosecution case, in short, is that on 1st
March,2001 at about 6.30 P.M. Sri Anil Kumar Singh ( P.W.1)
gave his fardbeyan to Sri Ram Babu Mandal, Officer Incharge of
Narayanpur Police Station on the Canal Road near Harkhen river,
Baghi Market . In his fardbeyan ( Ext.1) , the informant disclosed
that as usual after closing his shop, which runs in the name and style
of "Kumar Machinery Stores" which deals with the Kirloskar
Diesal Engine and its accessories at about 4.30 P.M. he along with
his elder brother ,Bir Kumar Singh ( deceased) and cousin brother,
namely, Rakesh Kumar Singh were returning to his village home,
namely, Bargaon. As his brother Bir Kumar Singh reached near
Baghi Badhar about 25 yards west on Canal road of Harken river, he
saw his co-villager Nandu Chaurasiya coming from eastern side on
a bicycle and on other cycle two unknown persons were going
towards Narayanpur from eastern side. The informant disclosed that
he was behind 25-30 yards back of his brother Bir Kumar Singh. He
further disclosed that after noticing Nandu Chaurasiya his brother
Bir Kumar Singh stopped his bicycle and both of them, i.e. Bir
Kumar Singh and Nandu Chaurasiya started talking. In the
meanwhile, the informant noticed that appellants Ashok Kumar
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Singh, Manoj Singh, Ram Pravesh Singh, Brij Nandan Singh, all
residents of Village-Bargaon, Police Station -Ajimabad in the
district of Bhojpur, who were ambushing in the chart in the northern
side of the Canal armed with rifle and pistol, suddenly came out
and surrounded his brother Bir Kumar Singh and started firing from
their respective arms on his brother , due to which his brother fell
down . In the meanwhile , from the other side of the Canal , Bhola
Singh ,resident of Village -Bargaon , Police Station-Ajimabad ,
District-Bhojpur along with two others , armed with pistol and rifle
came and they also fired on his brother who was lying on the
ground. The informant further stated that when his co-villager
Nandu Chaurasiya asked the accused persons not to do so, then all
the accused persons also opened fire on him through rifle and pistol.
After noticing the said occurrence, the informant (P.W.1) and his
cousin brother started fleeing away from the place of occurrence.
Thereafter, accused persons started firing on him also. It was further
disclosed that in the said firing one of the persons who were coming
from the eastern side on bicycle sustained injury and fell down. Any
how, the informant saved himself and ran towards village Muradpur
and there he narrated about the occurrence to the villagers of the
said village. Thereafter, the informant ( P.W.1) , his cousin brother
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Rakesh Kumar Singh ( P.W.2) and one another persons who had
fled away after leaving his bicycle who had subsequently disclosed
his name as Ranjit Rai of Village- Jeneshar , Police Station Sandesh
in the district of Bhojpur ( not examined) and villagers of village
Muradpur came to the place of occurrence and saw that his brother
Bir Kumar Singh , his co-villager Nandu Chaurasiya and one
another person , regarding whome Ranjit Rai ( not examined)
disclosed that his name was Hare Ram Rai Singh of village
Jeneshar, Police Station Sandesh in the district of Bhojpur, were
lying dead due to fire arm injury . The informant further disclosed
that all the five named accused persons had earlier demanded
Rs.25,000/- ( twenty-five thousand) as Rangdari and in this regard
he had lodged the an F.I.R., bearing Ajimabad P.S. Case No.36 of
1999, on 23.12.1999 for offence under Section 387 of the Indian
Penal Code. The accused persons were putting pressure and giving
threatening for dire consequences for withdrawal of the said case.
The informant claimed that due to said enmity accused persons,
namely, Ashok Kumar Singh, Manoj Kumar Singh, Ram Pravesh
Singh, Brij Nandan Singh and Bhola Singh (all appellants) and two
others had committed the present occurrence. On the basis of the
fardbeyan of the informant (P.W.1) a formal F.I.R. (Ext.6) was
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drawn up on 1st March, 2001 at 11.30 P.M. After recording the
fardbeyan, the police started investigation and finally after
submission of the chargesheet , the aforesaid appellants were put on
trial and they were charged for offences under Sections 302/34 ,
307/34 of the Indian Penal Code and 27 of the Arms Act.
5. During the trial, to prove the case, the prosecution
examined altogether 11 ( eleven ) witnesses ,out of them P.Ws 1
and 2 were examined as ocular witnesses to the occurrence, Arun
Kumar Singh ( P.W.3) and Abhay Kumar Singh ( P.W.6) are
hearsay witnesses. P.Ws 4 and 5 are witnesses on the inquest report.
Baidyanath Singh Singh(P.W.7) is a seizure list witness , Dr. Arun
Kumar Singh ( P.W.8) had conducted post-mortem examination on
the dead bodies of the three deceased . Sri Ram Babu Mandal (
P.W.9) is the main Investigating Officer , Tarkeshwar Prasad (
P.W.10) is a formal witness who has identified writing and signature
of Anil Kumar Singh over a written report, which has been marked
as Ext.10, which was the basis of formal F.I.R. of Ajimabad P.S.
Case No.36 of 1999. Sri Parmanand Bisna , Sub Inspector of
Police(P.W.11) had partly investigated the case and submitted
supplementary chargesheet in the case.
6. In the case, the appellants also examined altogether
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8(eight) witnesses in their defence. The defence of the appellants
was complete denial and they have taken stand that they were
falsely implicated in the case and some of them also took the plea of
alibi.
7. Sri Rana Pratap Singh, Senior Counsel , appearing
on behalf of the appellants has precisely formulated the following
points:
(i) Sri Anil Kumar Singh (P.W.1) and Sri
Rakesh Kumar Singh (P.W.2) are not eye
witnesses to the occurrence.
(ii) The whole F.I.R. is anti-dated as it was
belatedly prepared
(iii) Inquest reports i.e.Ext.7-Inquest Report of
Nandu Chaurasiya , Ext.7/1- Inquest Report
of Bir Kumar Singh and Ext.7/2 - Inquest
Report of Hare Ram Rai , were prepared on
1.3.2001at 19.15 hours( i.e. 7.15 P.M.), 1.3.2001 at 19.30 hours ( i.e. 7.30 P.M) and 1.3.2001 at 19.45 hours( i.e. 7.45 P.M.) respectively and all the three Inquest Reports bear Sahar P.S. Case No.15 of 2001, whereas -8- formal F.I.R. in the case was drawn on 1.3.2001 at 23.30 hours( i.e. 11.30 P.M.)
(iv) Four bicycles were not seized by the Investigating Officer from the place of occurrence.
(v) Not even a single witness from village
Muradpur has come forward to depose as
prosecution witness.
(vi) There is conflict in between medical evidence
and ocular evidence , and
(vii) All the witnesses who have supported the
case, formal or eye witnesses, come
from one family.
8. Elaborating his argument on the aforesaid points , Sri Singh has emphasized that in the case, the prosecution has examined only two witnesses who had claimed to witness the actual occurrence and those witnesses are Sri Anil Kumar Singh ( P.W.1) who is none else but full brother of the deceased Bir Kumar Singh and Sri Rakesh Kumar Singh ( P.W.2) who is cousin of the informant. With a view to create doubt regarding the veracity of the -9- two witnesses , learned counsel has categorically stated that it is the specific case of the prosecution that accused persons firstly surrounded the deceased Bir Kumar Singh and thereafter fired from their respective weapon, due to which Bir Kumar Singh fell down and again thereafter Bhola Singh ( appellant no.2 in Cr.Appeal No.568 of 2004) along with two others appeared and they also fired from rifle and pistol on the body of Bir Kumar Singh. By referring the postmortem report of Bir Kumar Singh, the learned Senior Counsel argued that none of the injuries caused on the body of the deceased Bir Kumar Singh show charring/tattooing mark. It was argued that if from such a close range, firing is done, then certainly the injury will reflect charring/tattooing mark on the body. He further argued that since they had no such injury, a doubt is raised regarding the credibility of the witnesses who have claimed to be the eye witnesses to the occurrence.
9. Sri Singh has forcefully challenged and claimed that the F.I.R. was ante-dated and prepared in a planned manner to implicate the appellants who were already made accused by the informant in Ajimabad P.S. Case No.36 of 1999 for the offence under Section 387 of the Indian Penal Code. The plea which has been taken by the appellants is that though the inquest reports which
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were claimed to be prepared on 1.3.2001 after the occurrence in between 7.15 P.M. and 7.45 P.M. and formal F.I.R. was lodged on the same day at 11.30 P.M. in a Police Station, which was about 10 Kilometer away from the place of occurrence , it was beyond the imagination that the said inquest reports would have contained the F.I.R. number before formal registration of the same.
10. Regarding non-seizure of bicycles by the Investigating Officer from the place of occurrence, it was argued that when there was specific case of the prosecution that the deceased persons were on bicycles at the time of occurrence, then seizure of bicycles at the place of occurrence by the Investigating Officer was necessary. However, bicycles were not seized by the police from the place of occurrence. Learned senior counsel emphasizing the non-seizure of bicycles by the Investigating Officer from the place of occurrence as a measure flaw in the investigation argued that this also creates serious doubt on the question of occurrence being seen and claimed by the two eye witnesses.
11. Sri Singh further argued that it was specific case of the informant that after the occurrence to save their lives the informant, his cousin brother and one another person, namely,
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Ranjit Rai (not examined) had rushed to village Muradpur and thereafter along with villagers of Muradpur they arrived at the place of occurrence, where the police also arrived subsequently, but none of the villagers from village Muradpur were examined to prove the prosecution case. This also creates serious doubt on the prosecution case.
12. Sri Singh argued that all the witnesses except official witnesses are related to the informant and as such, the witnesses appears to be not truthful and all the witnesses are interested witnesses.
13. Now in the light of the argument on behalf of the appellants and with a view to test the veracity of the prosecution case, it is necessary to examine minutely the evidence of P.W 1 and P.W.2 who are the eye witnesses to the occurrence. P.W.1 Sri Anil Kumar Singh during the trial has categorically supported his fardbeyan. P.W. 1 has disclosed that at Narayanpur Bazar he had shop of Kirloskar Diesal Engine and its accessories in the name and style of "Kumar Machinery Stores" and he is resident of Bargon, which is 6 Kilometer in the eastern direction from village Narayanpur. He stated that he himself and his deceased brother Bir Kumar Singh were running the said shop. He stated that usually they
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used to close the shop at about 4.30 P.M. and return to village Bargaon on cycle. On the date of occurrence i .e. 1.3.2001 , P.W., the deceased and his cousin brother Rakesh Kumar Singh ( P.W.2) after closing the shop at about 4.30 P.M. were returning to their village. P.W.1 and his cousin Rakesh Kumar were on one cycle and coming behind his deceased brother Bir Kumar Singh who was on another cycle . At about 5.00 P.M. they reached near Harkhen river in the western side of Canal road . At that time, Nandu Chaurasiya was coming from eastern side over a cycle. Thereafter, his deceased brother Bir Kumar Singh stopped Nandu Chaurasiya for talking. P.W.1 further disclosed that from behind Nandu Chaurasiya two persons were coming on a cycle while his brother was talking with Nandu Chaurasiya . The appellants Ashok Kumar Singh, Manoj Kumar Singh, Ram Pravesh Singh and Brij Nandan Singh having rifles and pistols came out from the lower level of canal from northern side. P.W.1 stated that appellant Ashok Kumar Singh was carrying rifle and other three accused persons were carrying pistols in their hands. Thereafter, they surrounded his brother Bir Kumar Singh and fired by their arms on his brother. Thereafter, he fell down. In the meanwhile from the southern side of the canal, appellant Bhola Singh and two unknown accused persons came out
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and fired through their respective fire arms on his brother who had already fallen down. Whereupon Nandu Chaurasiya protested and on said protest appellant Ashok Kumar Singh who was having rifle and others fired at him and he also fell down. Anil Kumar Singh ( P.W.1) further stated that he and Rakesh Kumar after throwing the cycle started fleeing away to save themselves .He claimed that accused persons also started firing on him with a view to kill . However, in the said firing one person out of two unknown who were coming on cycle got fire-arm injuries and the said unknown person also fell down. He further stated that he, Rakesh (P.W.2) and other unknown cyclist who hadescaped injury came to village- Muradpur. The said unknown person disclosed his name to P.W.1 as Ranjit Kumar Rai of village Janeshra, Police Station-Sandesh and he also told that Hare Ram was his co-villager and coming with him on a cycle has received gun-shot injury. Anil Kumar Singh (P.W.1) deposed before the court that he told the villagers of Muradpur about the occurrence and thereafter they returned to the place of occurrence and found that his brother Bir Kumar Singh, his co- villager Nandu Chaurasiya and Hare Ram of Village Jeneshra had died. In his deposition P.W.1. disclosed that prior to the said occurrence, appellants Ashok Kumar Singh, Ram Pravesh Singh and
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Manoj Kumar Singh were demanding Rs.25,000/- as Rangdari from him and his brother Bir Kumar Singh, but they refused to give money , so they were threatening to kill them. Thereafter, he had filed a case vide Ajimabad P.S. Case No.36 of 1999 on 23.12.1999 against them, which was pending and chargesheet was already filed. P.W. 1 further stated that accused persons were threatening to withdraw or compromise the case otherwise they will be murdered. He also stated that police came and recorded his fardbeyan at about 6.30 P.M. in presence of Ranjit Rai (not examined) and Rakesh Kumar Singh (P.W.2). This witness has further stated that in his presence P.W.9- Sri Ram Babu Mandal, Sub -Inspector of Police prepared inquest reports of three dead bodies and seized blood- stained soil. Thereafter, the Officer Incharge , Pankaj Kumar Das (not examined ) came and seized three rifle empty cartridges and one empty cartridge of pistol from northern ditch in his presence and Baijnath Singh ( P.W.5). The said seizure list was marked as Ext.2. P.W.1 also stated that at the place of occurrence Arun Kumar Singh (P.W.3), Abhay Kumar Singh (P.W.6) of village Bargaon and villagers of Muradpur and Baghi had come. He further disclosed that one Sunildeo Singh (not examined) of Baghi had told him that he had seen the accused persons while fleeing away. This witness,
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Anil Kumar Singh , has also deposed before the court that accused persons were threatening him and his family members . This indicates that even during the trial , the accused persons were threatening P.W.1. P.W.1 identified all the five appellants who were produced from custody in the dock. The examination-in-chief of this witness was complete on 2.3.2002 and thereafter on the same day P.W.1 was cross-examined and only one question was asked by the defence and cross-examination was deferred to 13.3.2002. However, on 13.3.2002, on repeated calls, none came on behalf of the defence to cross-examine P.W.1 and thereafter P.W.1 was discharged. Subsequently, after two months i.e. on 27.5.2002, P.W.1 was cross-examined on recall. In cross-examination at para-18 , P.W.1 disclosed that after the occurrence , all the cycles were left there. After his return, he saw the cycles were lying. He stated that on the cycle of his deceased brother, there was mark of blood. He could not see what happened to the cycle, but on the next date, villagers of Baghi returned the cycle. He stated that he was not in a position to show his cycle to the police. Even his cycle was also returned on the next date and even thereafter he never produced two cycles before the police. He further stated that he knew nothing about other two cycles. On perusal of cross-examination of P.W.2,
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the Court is of the view that the defence has not extracted anything from the cross-examination of P.W.1 , which creates any doubt on the veracity of his evidence, and as such, the evidence of P.W.1 cannot be doubted , as argued on behalf of the appellants.
14. In the case, the next important witness who has seen the occurrence is Sri Rakesh Kumar Singh ( P.W.2) who is cousin brother of the informant and deceased . In his deposition, he has stated that on the date of occurrence, he had gone to Narayanpur on his cycle for the purchase of Cement. He has stated that in Narayanpur Market, the informant and his deceased brother Bir Kumar Singh was running a shop of Machinery part. After purchasing cement and iron rod, he loaded the same on his bicycle . However, the bicycle developed some problem, and as such, he put his bicycle inside the shop of his brother at Narayanpur and he along with the informant Anil Singh on a bicycle and deceased Bir Kumar Singh on another bicycle started for his village after closing the shop at 4.30 P.M. on the date of occurrence. He stated that Bir Kumar Singh was moving ahead on his cycle and at about 5.00 P.M. in Baghi Market near Harkhen @ Kumhari river, Bir Kumar Singh was about 25-30 yards ahead of eastern side and P.W.2 along with P.W.1 was following him. P.W.2 saw that his villager Nandu
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Chaurasiya was going towards Narayanpur and after seeing Bir Kumar Singh , Nandu Chaurasiya stopped his cycle and both of them started talking . In the meanwhile , from the northern side of the canal, appellants Manoj Singh, Ram Pravesh Singh , Brij Nandan Singh and Ashok Singh , armed with rifle and pistols came out on the road and started indiscriminate firing on Bir Kumar Singh, whereupon Bir kumar Singh fell down . P.W. 2 further stated that from the southern chard of the canal , appellant Bhola Prasad Singh along with two unknown persons armed with rifle and pistol came out and started firing on Bir Kumar Singh who was already fallen down. Thereafter, Nandu Chaurasiya tried to persuade the appellants not to do the thing, on which appellant Ashok Kumar Singh shot Nandu Chaurasiya from his rifle , which hit on his abdomen. Others were also firing. When Nandu Chaurasiya fell down after sustaining injury of fire arm , the accused persons with a view kill Anil Kumar Singh ( P.W.1) started firing . At that very time, P.W.2 noticed two persons going towards Narayanpur on one bicycle and among them one of the persons received fire arm injury. He stated that in the firing opened on Anil Kumar Singh (P.W.1), one person of the said cycle received fire arm injury and he also fell down. Thereafter, P.W.2, Anil Kumar Singh
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(P.W.1) and one of the said cyclists to save their lives fled away towards village Muradpur . P.W.2 further stated that the said unknown persons disclosed his name as Ranjit Kumar Rai( not examined) who was resident of Village Jeneshra, P.S. Sandesh , District-Bhojpur and the person who was on cycle and received fire arm injury was Hare Ram Rai of his village. P.W.2 further deposed that subsequently with 10-15 villagers of Muradpur , he returned to the place of occurrence, where he found that all the three persons had already died at the place of occurrence itself. He stated that villagers of Bhaghi also arrived at the place of occurrence and he and his brother Anil Kumar Singh narrated the story to the villagers of Baghi village. In his presence, at the place of occurrence fardbeyan of Anil Kumar Singh ( P.W.1) was recorded and he and Ranjit Kumar also put their signatures as witnesses to the fardbeyan. In his cross-examination, P.W.2 has categorically explained regarding his visit to Narayanpur and the story regarding coming back to his village along with P.W.1 and deceased and also his presence at the time of occurrence. He was cross-examined at length by the defence, but from the examination nothing could emerge which can even suggest that the defence succeeded in creating doubt on his evidence. In para-6, during his cross-examination he
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categorically stated that at the place of occurrence, the police arrived at about 6.30 P.M. He categorically stated that police after arrival at the place of occurrence has prepared several documents and police remained there for about two hours. In paragraph 8 of his cross- examination, P.W.2 has stated that at the place of occurrence after arrival of villagers of Muradpur and Baghi , his co-villagers also arrived and he narrated the story to his villagers also. He stated that Abhay Kumar Singh ( P.W.6), Arun Kumar Singh, Baijnath Singh and others were there. He also admitted that Abhay Kumar Singh ( P.W.6) is his brother . In paragraph 13 of his cross-examination, P.W.2 has reiterated that at the time of occurrence, deceased Bir Kumar Singh was about 20-25 yards ahead of him and the whole occurrence took place in between one and two minutes. Accordingly, from the evidence of P.W.2, it is evident that P.W.1 is truthful witness and his evidence cannot be doubted. P.W.3 Arun Kumar Singh, who is own brother of deceased and P.W.1, has stated that after the occurrence one Birendra Kumar Gupta @ Bhuer Sah ( who has been examined on behalf of the defence as D.W.7) arrived at his residence and informed that his brother Bir Kumar Singh, co- villager Nandu Chaurasiya and one another person had been murdered near Harkhen river. Immediately after receiving
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information, P.W.3 along with Abhay Kumar Singh ( P.W.6) ran towards the place of occurrence and at the place of occurrence he saw that dead bodies of his brother, co-villager Nandu Chaurasiya and one another person were lying on the ground . At the place of occurrence itself , Anil Kumar Singh ( P.W.1) informed him that his co-villager Ashok Kumar Singh, Manoj Kumar Singh, Ram Pravesh Singh, Bhola Singh , Brij Nandan Singh and two unknown persons had killed them by fire arm. P.W.3 disclosed that thereafter Pankaj Kumar Das, Sub Inspector of Police , seized blodd-stained soil from the place of occurrence and prepared seizure list, over which P.W.3 and one Baij Nath Singh ( P.W.5) signed as seizure list witnesses. In dock, this witness identified his signature over the seizure list, which was marked as Ext.3 and he also identified the signature of Baijnath Singh, which was marked as Ext.3/1.
15. Sri Chitranjan Singh was examined as P.W.4. He is the witness to the inquest report, which were prepared in between 7.15 P.M. and 7.45 P.M. on 1.3.2001 at the place of occurrence by Sri Ram Babu Mandal ( P.W.9) , Sub Inspector of Police. The inquest reports of three dead bodies of Nandu Chaurasiya, Bir Kumar Singh and Hare Ram Singh were prepared in his presence and he has signed on the said inquest report, which were marked as
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Exts.4, 4/1 and 4/2. He has stated that the inquest report were prepared in his presence and Sri Baij Nath Singh (P.W.5) at the place of occurrence. It is pertinent to mention here that P.W.4 has also disclosed that the place of occurrence was near Harkhen river.
16. P.W.5 Baijnath Singh S/O Deo Nandan Singh is also witness to the inquest report. Similarly P.W.5 has been examined and he disclosed that inquest reports of three dead bodies were prepared at the place of occurrence near Harkhen river and he had identified his signature over the same as Exts 4/3,4/4 and 4/5 . In his cross-examination, P.W.5 has stated that after hearing hulla , he rushed to the place of occurrence.
17. P.W.6 Sri Abhay Kumar Singh deposed that on the date of occurrence, i.e. on 1.3.2001 , he was sitting near the door of his house along with Arun Kumar Singh ( P.W.3) and at about 5.45 P.M. his co-villager Birendra Kumar Gupta @ Bhuer Singh came and informed that in Baghi Badhar , east to Harkhen river , Bir Kumar Singh, Nandu Chaurasiya and one unknown person were killed by fire arm injury. Immediately thereafter, he rushed to the place of occurrence and after arrival he saw dead bodies of Bir Kumar Singh, Nandu Chaurasiya and one unknown person lying at the place of occurrence. He asserted that all the three persons died
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due to fire arm injury . At the place of occurrence, P.W.1 Anil Kumar Singh informed that co-villagers, namely, Ashok Kumar Singh, Manoj Kumar Singh, Ram Pravesh Singh, Bhola Singh, Brij Nandan Singh and other two unknown persons shot them dead. He has further stated that his statement was recorded by the police at the place of occurrence. Keeping in view the evidence of P.W.6 and P.W.3 , it is clear that both the witnesses were present at their house in village Bargaon at the time of occurrence and both of them were informed by his co-villager regarding the occurrence and they rushed to the place of occurrence and saw the dead bodies lying at the place of occurrence. In the cross-examination of both the witnesses, nothing could be extracted to create any doubt on truthfulness of their evidence, and as such, their evidence is completely reliable and trustworthy.
18. P.W.7 Baidnath Singh S/O Bikramaditya Singh has been examined as a witness to the seizure list in respect of seizure of three 30.06 fired cartridges and one 9MM fired cartridge which were seized from the place of occurrence and he was one of the signatories to the said seizure list. He identified his signature, which was marked as Ext.3/2 on the said seizure list. In cross-examination, this witness has said that he arrived at the place of occurrence at
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about 6.45 P.M. he further disclosed that when he reached at the place of occurrence, he saw his 7-8 co-villagers were present there.
19. Dr. Ashutosh Kumar has been examined as P.W.8 who had conducted postmortem examination and prepared postmortem report on the three dead bodies. During his examination, he proved the postmortem report. The postmortem report on the dead body of Nandu Chaurasiya has been marked as Ext.5, Postmortem report prepared on the dead body of Hare Ram Rai has been marked as Ext.5/1 and postmortem report held on the dead body of Bir Kumar Singh has been marked as Ext.5/2. In his deposition, P.W.8 has stated that on the dead body of Nandu Chaurasiya he found following ante-mortem injuries:
External injuries:
(i) Lacerated wound on the ventral aspect of upper part of left fore arm size 3"x 1 ½" x muscle deep
(ii) (ii) Lacerated wound on the left lateral aspect of the abdomen size 4" x 4" cavity deep, the part of the stomach and large intestine was protruding outside .
Internal Injuries:
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On dissection of skull brain matter and ménages were intact and pale. On dissection of thorax right thoracic cavity was filled with blood and the lung was lacerated. Right lung was pale in colour . The chambers of the heart were empty.
Both the heart and lungs were pale.Diaphram was ruptured.
On dissection of abdomen stomach and liver were ruptured.
Abdominal cavity was filled with blood. A metallic foreign body resembling bullet was found on the right side of the abdominal cavity. There was 100 C.C. of urine in the bladder. Both the kidneys and spleen were pale in colour .
In respect of dead body of Hare Ram Rai , P.W.8 deposed that he found following ante-mortem injuries:
External injuries:
(i) Lacerated wound on the anterior aspect of the right side of the chest below right cavity lateral part size ½"
x ½" cavity deep it appears to be wound of entry with inverted margin.
(ii) Lacerated wound on the anterior aspect of right side of the chest 2" below lateral part of right clavicle with inverted margin ½" x ½".
(iii) Lacerated wound on the anterior aspect
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of upper part of the right arm with inverted margin ½" x ½ " and it appears wound of entry.
(iv) Lacerated wound on the posterior aspect of right side of the chest with everted margin size 1 ½ " x 2" . It appears to be wound of exit.
(v) Lacerated wound on the posterior aspect of the upper part of the right arm with everted margin size 2" x 2"
. It appears to be wound of exit.
On dissection, internal injuries.
On dissection of the skull, brain matter and meninges were intact and pale in colour. On dissection of thorax right thoracic cavity was filled with blood. Right lung was lacerated. A metallic foreign body resembling bullet was found on the right side of thoracic cavity. The left lung was pale in colour. Heart was pale in colour and chambers were empty. The stomach was pale containing 150 cc of partly digested food. Spleen, both kidneys and liver were pale in colour. Urinary bladder contains 50 cc of urine. On dissection of right upper limb, there was connected fracture of upper part of right humorous.
Similarly, on the dead body of Bir Kumar Singh,P.W.8
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deposed that he found following injuries:
External Injuries:
(i) Lacerated wound on the dorsal surface of left hand in between 2nd and 3rd metacarpal bone with inverted margin size ½" x ½" wound of entry
(ii) Lacerated wound on the palmer surface of the left hand in between 2nd and 3rd metacarpal bones with everted margin size 1" x 1"
(iii) Lacerated wound on the right side of the back in the middle oval with inverted margin size ¾" x 1"
cavity deep wound of entry ( iv) Lacerated wound on the left supra clavicular region with everted margin size 1" x 1 ¼"- wound of exit.
(v) Lacerated oval wound with inverted margin on the left side of the neck with inverted margin size ½" x ½", i.e. wound of entry.
(vi) Lacerated wound on the lateral aspect of the left shoulder size 3" x 2" x Muscle deep.
Internal Injury:
On dissection of skull brain and mengis all were intact and pale in colour . On dissection of thorax both
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thoracic cavity were full of blood. Both the lungs were lacerated and pale in colour. Heart was ruptured and was pale in colour . On dissection of abdomen stomach was pale in colour containing 200 cc partly digested food. Spleen was pale in colour. Both kidneys and liver were pale in colour. Urinary bladder contains 100 cc of urine. On dissection of right side upper limb, there was a metallic foreign body resembling bullet was found on the ateromedial part of right upper part.
20. P.W.8 deposed that cause of death of all the three deceased were due to haemorrhage and shock following fire arm injuries. He deposed in para-11 that fire-arms means regular or country made rifle, gun or pistol.
21. Learned Senior Counsel, Sri Rana Pratap Singh, who has appeared on behalf of the appellants, have vigorously argued that in view of non-finding of any charring or tattooing mark on the dead bodies, the story put forth by the prosecution, particularly evidence of P.Ws 1 and 2 who have claimed to be eye witnesses, come under the shadow of doubt. It is necessary to answer the query of Sri Singh. From the evidence of P.Ws 1 and 2 none can come to the conclusion that any fire-arm
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injury was caused on any of the three deceased from the very close range. P.Ws 1 and 2, who are the eye witnesses to the occurrence, have never said that any firing was made from a very close range. On this very point, Sri Kanhaiya Prasad Singh, learned Sr. Counsel appearing on behalf of the informant, submitted that if fire arm injury is caused on a body from a distance of a feet , there is no possibility of sustaining any charring or tattooing mark. Since , it is not a case of prosecution that firing was made from a very close range , the court is not convinced with the arguments advanced by Sri Rana Pratap Singh, Senior Counsel , that non-finding of charging or tattooing mark on any of the dead bodies of deceased belie the evidence of P.Ws 1 and 2 . We are of the view that on the ground of non-finding of charring or tattooing mark on the body of the deceased does not persuade us to disbelieve the evidence of P.Ws 1 and 2 . On the contrary, the injuries found on the dead body which were caused by fire arm and number of such injuries corroborate the prosecution story that in the said occurrence indiscriminate firing was made and due to that reason even one passerby was also killed besides the murder of Bir Kumar Singh and one another innocent, who was a co-villager, namely, Nandu Chaurasiya .
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22. In the present case, the Investigating Officer, namely, Ram Babu Mandal has been examined as P.W.9. He disclosed that he heard rumour in the evening regarding the murder of three persons in Baghi- Muradpur Badhar. After hearing the rumour , he recorded Sanha No.14 and for verification , he along with Pankaj Kumar Das, Sub Inspector of Police, Officer Incharge of Sahar ( not examined) along with arm-forces left the Police Station for the place of occurrence and at about 6.30 P.M.( evening) arrived at the place of occurrence and at the place of occurrence, he recorded the fardbeyan of Anil Kumar Singh ( P.W.1) in presence of two witnesses, namely, Ranjit Rai ( not examined) and Rakesh Kumar Singh ( P.W.2). He has extensively explained and described regarding the place of occurrence. He has stated that from the place of occurrence towards eastern side , a road goes eastern side to Bantola, P.S. Ajimabad and from the place of occurrence about 20.25 yards away, there is Harkhen river, which is also known as Kumhari river. He stated that Muradpur village was 200 Meter west from the place of occurrence. He disclosed that at the place of occurrence, he prepared a sketch map and inspected the place of occurrence and he did all the things at the place of occurrence in the light of Petromax and in his presence,
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Sri Pankaj Kumar Das, Officer Incharge seized the blood-stained soil with blood from the place of occurrence and prepared a seizure list . He also identified the signature of Officer Incharge, which was marked as Ext.2/1. He also prepared dead bodies' challan and sent them for conducting postmortem. P.W.9 also identified the three inquest reports which were marked as Exts.7, 7/1 and 7/2. In paragraph-7 of his deposition, P.W.9 deposed that on the next date, during the investigation, he arrest Ram Pravesh Singh and Brij Nandan Singh and rest accused persons were found absconding. In paragraph 9 of his deposition, he has stated that after getting information that appellants Bhola Singh and Ashok Kumar Singh were hiding in village Kukuraha he rushed there. However, none could be arrested. He was informed by the villagers that appellant Bhola Singh was functioning as Gram Sewak in Behea Block, and as such, the Investigating Officer (P.W.9) visited Behea Block and on enquiry he was informed by the staff of Behea Block that appellant Bhola Singh was Panchayat Sewak in Dodhara- Tedhara Gram Panchayat and since last one week , he was not coming to office. After completing the investigation, he submitted chargesheet against four appellants and further investigation in respect of appellant,Bhola Singh and others was kept pending and thereafter he
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was transferred from the said police Station and further investigation against appellant Bhola Singh and two others was taken up by the Sub Inspector of Police, Parma Nand Birua (P.W.11). P.W.9, Ram Babu Mandal , has also proved the sketch map in respect of place of occurrence and the same was marked as Ext.8. In his cross-examination, the defence tried to establish that the Investigating Officer had not conducted proper investigation and even he had not mentioned anything in respect of seizure of bicycle from the place of occurrence. In paragraph 18 of his cross- examination, the Investigating Officer has admitted that in the case diary, he has not mentioned regarding cycle or blood-stained cycle recovered from the place of occurrence. From the cross-examination of P.W.9 nothing has been brought on record to suggest that besides non-mentioning of recovery of cycle in the case diary there were any other infirmity in the investigation.
23. Sri Rana Pratap Singh has emphatically argued that non-mentioning of recovery of cycle from the place of occurrence in the case diary, creates serious doubt on the credibility of prosecution case as well as bona fide of evidence of P.Ws 1 and
2. Sri Singh has further argued that since the Investigating Officer had not seen any bicycle at the place of occurrence whereas P.W.2
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had built up a case that cycles were lying at the place of occurrence, it seriously discredit the claim of P.Ws 1 and 2 to be eye witnesses . It is true that the Investigating Officer has not mentioned anything regarding the cycle and subsequently one of the witnesses, i.e. P.W.2 has stated that on the next date cycles were delivered by the villagers .It gives an impression that the investigation up to this extent can be said to be defective, but on the ground of defective investigation, the prosecution case, which is otherwise believable and truthful cannot be demolished. Time without number the Hon'ble Supre me Court has held that defective investigation cannot vitiate the case of the prosecution. In a case reported in 2003 AIR SCW 717 ( Amar Singh Vrs. Balbindra Singh) the Hon'ble Supreme Court has held that if the prosecution case is established by a direct evidence of eye witnesses , any failure or omission of Investigating Officer cannot render prosecution case doubtful or unworthy of believe. The Hon'ble Supreme Court further in a case, reported in 2006 Cr.L.J,2618 ( Krishna SindeVrs. State of Maharashtra) while considering the investigation and its defect has held that defective investigation would not deter a court from convicting an accused if court finds that dehors the defect accused can be convicted on the basis of evidence on record .
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24. Accordingly, the Court is of the view that merely non-mentioning of recovery of bicycle in the case diary or non- preparing of its seizure list can hardly be termed as an omission on the part of the Investigating Officer and even in no stretch of imagination the prosecution case in the facts and circumstances and evidence, brought on the record can be doubted.
25. P.W.10 Tarkeshwar Prasad who is a formal witness, has simply proved the written report dated 23.11.1999, which is in the writing and signature of Anil Kumar Singh (P.W.1) and the same has been marked as Ext.10. On the basis of said written report, F.I.R. vide Ajimabad P.S. Case No.36 of 1999 was formally drawn and the same has been marked as Ext.11. It is necessary to mention here that P.W.1 has categorically stated that for the demand of Rangdari by three of the appellants in the year 1999, said F.I.R. was registered against the appellants and repeatedly appellants were putting pressure and threatening the deceased and his family members to withdraw the case. The witness has also stated that in the said case, chargesheet was already filed . Accordingly, the reason for the present occurrence has got direct relation with the registration of the F.I.R. in the year 1999. The Court can take judicial notice of the fact that during the
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relevant period, kidnapping and Rangdari had grown up as an industry in our State.
26. P.W.11 has conducted further investigation and has submitted supplementary chargesheet against the appellant, Bhola Singh.
27. In the present case, during the trial, as usual, some of the appellants have taken the plea of alibi besides other defence and in support of their case defence had examined altogether seven defence witnesses. D.W.1 Jai Ram Pal who was the Block Development Officer, Ara, being a public servant appears to have come forward to save the skin of appellant Bhola Singh from the charges of the case. He deposed that at the time of occurrence, he was posted in Behea Block as Block Development Officer. He further deposed that from 19.2.2001 to 3.3.2001, preparation of Panchayat Election in the said Block was going on and they were very busy in the said work . In the said work, all the Panchayat Sewaks were kept engaged till late night and all the works were being done in the supervision of D.W.1 as per his deposition. D.W.1 has specifically stated that on 1.3.2001 from 10.00A.M.in the morningto8.00 P.M. night scrutiny of nomination papers were going on. He emphatically stated that on the said date for the whole of
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aforesaid period, Bhola Singh remained present in the Block Office and he discharged his official duty. He had also granted a certificate to this effect, which was under his writing and signature and the same was marked as Ext.A. On perusal of Ext.A, it is evident that D.W.1 had granted Certificate in favour of appellant Bhola Singh to the effect that from 19.2.2001 to 3.3.2001 in his Block Office, Panchayat Sewaks had discharged their duties in respect of Panchayat Election, nomination, verification and preparation of different forms. During that period Sri Bhola Pd. Singh, Son of Late Ram Ekbal Singh, Village + P.O. Bargaon, P.S. Ajimabad, District- Bhojpur used to remain in the office from 10.00 A.M. to 8.00 P.M. and discharge the relevant works in respect of Panchayat Election. Surprisingly, while being cross-examined, D.W.1 in para-4 has candidly admitted that he learnt that Bhola Singh (appellant) had been made accused in a murder case. He did not take any administrative action against him. He further admitted in para-5 that in the Block, there is not even a single chit of papers from where it can be ascertained as to who had worked from which period to which period on a particular date. From the cross-examination of D.W.1, it is really surprising that as to how and under what circumstances, Sri Jai Ram Pal, who was holding a responsible post
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of B.D.O., Behea , Bhojpur was persuaded to issue such certificate ,i.e. Ext.A in favour of the appellant,Bhola Singh, even though he was knowing well that appellant Bhola Pd.Singh was one of the accused in a murder case. Instead of taking any administrative action, D.W. 1 was kind enough to prepare a certificate in favour of an accused who had committed a heinous crime. D.W.1 appears to be so courageous that initially he issued such certificate i.e. Ext.A and subsequently he even appeared before the trial court and on oath he deposed in support of plea of alibi in respect of appellant, which in the opinion of the Court was a false deposition. D.W.1 had also brought on record the certificate, which was prepared to favour the appellant Bhola Pd.Singh. We are of the opinion that when the learned trial judge had already disbelieved the defence case he was also obliged to take action while exercising jurisdiction under Section 340 Cr.P.C. against D.W.1. Of course, while hearing the present appeal, we are not issuing any such direction but the same is only opinion of the Court. In view of the aforesaid discussions, the evidence of D.W.1 does not inspire confidence, and as such, no benefit can be given to the appellants, particularly appellant, Bhola Pd.Singh.
28. In support of appellant Bhola Pd.Singh and also
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with a view to corroborate the evidence of D.W.1, Ram Ayodhya Singh, who was Panchayat Sewak in Barharwa Block, has come forward as D.W.2. Similarly, he deposed that on the date and time of occurrence, Bhola Prasad Singh was present and discharging his official duty in the Block. However, in the cross-examination, he, too, admitted that there is no such paper from which it could be established that from 10.00 A.M. to 7.00 P.M. appellant Bhola Singh had discharged his duty in office. D.W.2 has further admitted in para-6 that appellant Bhola Singh was known to him since 1978- 79 and both were appointed simultaneously. In para-7 , he further admitted that matrimonial village of his wife is village Kukuraha and accused Bhola Pd.Singh was also having agricultural land in village-Kukuraha. Accordingly, on the basis of his admission as well as above discussions of the evidence of D.W.1, the evidence of D.W.2 appears to be heavily doubtful and cannot be relied upon.
29. Sri Nand Kishore Singh (D.W.3) has come forward to depose that on 1.3.2001 while he was sitting in the Post Office of Ram Pravesh Singh ( Appellant) where one Birendra Kumar came and informed regarding the murder of Bir Kumar Singh and Nandu Panheri near Harkhen river. D.W.3 further disclosed that Birendra Kumar is also known as Bhuer Sah who was his co-villager . In the
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Post Office at that very time , appellants Ram Pravesh Singh, Ashok Singh and Manoj Singh were sitting . He further stated that Birendra Singh did not say as to who had committed the occurrence. Thereafter, he rushed to the place of occurrence. He further stated that Anil Kumar Singh ( P.W.1) was also with him either forward or backward. In his cross-examination, D.W.2 has admitted that his maternal village is Medinipur , which is in Nasirigang and his maternal house is in the house of Balram Singh. In his cross- examination, a suggestion was given that appellant Bhola Singh was married to his sister and due to that reason with a view to save his family, he made false deposition. From perusal of the examination- in-chief of D.W.3 it appears that he not only tried to save the appellant Ram Pravesh Singh but he also developed a new story that at the time of occurrence he along with Ram Pravesh Singh, Ashok Kumar Singh and Manoj Singh was also sitting in the post office. The evidence of D.W.3 does not inspire any credibility in view of the evidence of P.W.1 and P.W.2, which is consistent in nature and the same has been corroborated by other evidences which have already been discussed above.
Like D.W.3, D.W.4, namely, Ram Naresh Singh and D.W.5 Shri Ram Singh have also tried to develop a story to support
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the case of alibi of appellants and as discussed above, their evidence is also not credible.
30. D.W.6 Baliram Bhagat has stated that while he was at his door in the evening on the date of occurrence, he saw that Bhuer was perturbed and running fastly. Thereafter, he asked and then Bhuer replied that three persons have been killed near the river, amongst them one was Bir Singh, second was Nandu Panheri and third was unknown person. D.W.6 further stated that on enqury , Bhuer said that he was going to inform Anil Singh. He did not say about the murderer. In his cross-examination, at paragraph5 , D.W. 6 has admitted that he does not remember the day of occurrence, date of occurrence, month of occurrence or year of occurrence. In para 6 he categorically admitted that when he met with Bhuer , it was about 4.00P.M.( evening) . He further admitted in para-7 that from his village to Kumhari river it takes ½ hours if one goes on foot. In para 12 of his cross-examination, D.W.6 has further admitted that Parshuram Singh was uncle of the informant( P.W.1Anil Kumar Singh) and prior to the occurrence in between Parshuram Singh and his family proceeding u/s 107 Cr.P.C. was going on. From the evidence of D.W.6 , particularly paragraphs 6 and 7 referred above, it is difficult to imagine that if the occurrence
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had taken place at about 5.30 P.M. and from the place of occurrence, it takes ½ hours to reach village Bargaon ,i.e. village of D.W.6 how Bhuer informed him regarding the occurrence at about 4.00 P.M. The ill-will is also evident from the fact that in between family of D.W.6 and the informant ,Criminal proceeding under Section 107 Cr.P.C. was going on, and as such, nursing his grudge D.W.1 appears to have come forward to depose falsely in favour of the appellants.
31. D.W.7 is Birendra Pd.Gupta who has deposed that on 1.3.2001, he was going along with Nandu Chaurasiya ( deceased) and while they reached near Harkhen river , he developed natural call and then he asked Nandu Chaurasiya that he will come later on and after attending natural call, while he was in midst of washing , he heard sound of firing and thereafter he fled away . He did not see any of the assailants. He ran to his village and thereafter he narrated about the occurrence to his inmates. He also stated that his statement was recorded by the Police. In cross-examination, he admitted that at the time of occurrence , he was downward while the occurrence had taken place at 10 ft raised place from the river and due to that reason he could not see the assailants. From the evidence of D.W.7 , it appears that the appellants are not in a
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position to gather any favour from the evidence of D.W.7 , and as such, the evidence of D.W.7 has got no relevant in support of the appellants defence.
32. D.W.8 Madan Singh has stated that in the said case occurrence took place on 1.3.2001 at about 4.30 P.M. He further stated that in his village market, Bhuer Sah came at 5.00 P.M. and informed that Bir Singh and Nandu Chaurasiya and one unknown person had been killed. After noticing the said information, he rushed to the place of occurrence along with Anil Singh ( P.W.1) , Rakesh Kumar Singh ( P.W.2) and many others. He stated that Anil Singh who is the informant, was with him while they reached the place of occurrence. In his cross-examination at para.4 , he admitted that he never discussed with any one about the information, which was given by Bhawar Sah. In his cross- examination, at paragraph 8, he has admitted that he was an accused in Sessions Trial No.128 of 1997 for the offence u/S 307 I.P.C. which was registered on the information of one Shailu Chaoudhary . However he denied the suggestion that Shailu Choudhary was labourer of Anil Singh ( P.W.1) . He also denied the suggestion that accused were his relative. The story set forth by D.W.8 also appears to be not believable particularly due to the reason that there is
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consistent evidence of P.W.1 and P.W.2, which have been corroborated by other evidences and on the basis of discussions made herein above, the evidence of P.Ws 1 and 2 cannot be discarded , and as such, the evidence of D.W.8 appears to be unworthy and doubtful and the same has been created only with a view to create false claim of the appellants to show their innocence.
33. In view of the evidences discussed above, it is evident that P.Ws. 1 and 2 are the real eye witnesses, who had seen the occurrence and identified the appellants as assailants, and as such, the evidence of P.Ws 1 and 2 are trustworthy and cannot be doubted. Further argument was advanced on behalf of the appellants that the F.I.R. was prepared belately inasmuch as the inquest reports bear the time of its preparation between 7.15 P.M. to 7.45 P.M. whereas the F.I.R. was lodged at 11.30 P.M. on the same night . P.W.9 was pointedly cross-examined by the defence on the point that how before the registration of the F.I.R. , which was done at 11.30 P.M. on 1.3.2001in the inquest reports, which were prepared in between 7.15 P.M. to 7.45 P.M. , F.I.R. number was described ? Answering to this question, D.W.9 has categorically stated that from the place of occurrence while preparing the inquest reports he got information through wireless set from the police Station as to which
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number was going to be assigned in the present case, and as such, he recorded the case number in the inquest reports, which were prepared in between 7.15 P.M. to 7.45 P.M. on the date of occurrence. This answer of P.W.9 went unchallenged. It was not got contradicted by the defence, and as such, the Court has got no option but to rely on the evidence of P.W.9 on the point of mentioning the case number in the inquest reports even though F.I.R. was registered later.
34. Sri Rana Pratap Singh has also emphatically argued that though the F.I.R. was registered on 1.3.2001 at 11.30 P.M. the same was received/seen by the C.J.M. on 3.3.2001. Taking the plea of delayed receipt of the F.I.R. in the Court Sri Singh developed his argument that the F.I.R. was concocted and no one had seen the occurrence. After going through the evidence of P.Ws 1 and 2, there is no doubt to hold that the fardbeyan was recorded at the place of occurrence itself. It has been corroborated by the Investigating Officer who is P.W.9 as well as other evidence. In the present case, it is not in dispute that immediately after recording fardbeyan the police prepared inquest report at the place of occurrence, seized blood-stained soil from the place of occurrence and also prepared seizure list in respect of recovery of empty
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cartridges from the place of occurrence and at the place of occurrence itself, statements of witnesses were recorded. So, it seems reasonable that immediately after the occurrence, the police started investigation and at 11.30 P.M. On the same date F.I.R. was formally drawn up and on the next date,i.e. on 2.3.2001, the F.I.R. was shown to be dispatched from the police Station and the same was received on the next date i.e. 3.3.2001 in the court of C.J.M..It is also very much relevant to mention that on three dead bodies post-mortem was held in the morning on 2.3.2001. So, on the basis of time and date of events mentioned herein above the Court is of the view that delay in receipt of the F.I.R. in the Court was not such a delay, which creates a doubt on the prosecution case nor it can be viewed that a false case was concocted, particularly in view of the evidences adduced by the prosecution. Even for the time being if it is assumed that some delay has occurred in receipt of the F.I.R. in the court below, we are of the view that merely delay in receipt of F.I.R. in the court does not vitiate the prosecution case, if the prosecution case is otherwise established. Sri Rana Pratap Singh, Senior Counsel emphasizing his arguments that delayed receipt of F.I.R. frustrates the prosecution case, has referred the case of Thanedar Singh, reported in (2002) 1 SCC, 487 ( Thanedar Singh
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Vrs. State of Madhya Pradesh) and pointedly referred paragraph 5.2. of the said Judgment. For the sake brevity, it is apt to quote paragraph 5.2. of the said Judgment:-
"5.2.P.W.6 did not reveal to his kith and kin and the villagers who came to the place of occurrence in the morning about the names of any of the accused, however, he deposed that the names of the accused persons were mentioned in Jagjit, Balmukund and Maharaj Singh, but, they were not examined. As seen from the cross-examination at para 24 , he did not even disclose the name of the alleged assailant to his son Banari. Had he identified the accused, who were known to him, he would have in the normal course disclosed the names at least to his close relations. This fact should be viewed in the context of the defence version that the F.I.R. was not recorded at the time and date it was purportedly recorded. Complaint was supposed to have been lodged by P.W.8 at 9 a.m. on the morning following the night of occurrence. The defence produced a certified copy of the FIR received by the Court of the First Class Judicial Magistrate, Amba, in which a note written by the clerk of the court showed that it was received on 21.5.1982. That document is Ext.D-4. The evidence of the date of sending the copy of F.I.R. to the Magistrate's court was not adduced by the prosecution in spite of giving more than one opportunity , as borne out by the endorsements on the order sheets dated 28.11.1984 and 7.12.1984. On 28.11.1984, it was noted that adverse inference will be drawn if the record was not produced. Yet, the prosecution
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failed to adduce proof . A specific suggestion was put to P.W.10 ( SHO, Sihonia P.S.) that FIR was prepared 2 or 3 days after the occurrence which, of course, was denied. PW10 admitted that no attempt was made to apprehend the accused on 19th and 20th May. It is significant to note that the crime number/FIR number is not to be found in the inquest report (P-6), site Plan ( P-5) or P-8 which is a requisition sent to the hospital for postmortem. No reference whatsoever is made in Ext.P-6 about the information, if any, furnished by PW8 or PW6 . All this would support the defence version that FIR (P-10) in which the names of the accused were mentioned would have probably come into existence much later. In this context it is apposite to refer to the decision of this Court in Meharaj Singh V. State of U.P. There also the question whether FIR was ante-timed to rope in the accused after some deliberations or to suit the investigation came up for consideration. Dr.A.S. Anand,J.(as His Lordship then was) speaking for the Bench observed thus:(SCCpp 195-96,para12) "12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence let at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature
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of an afterthought . On account of delay, the FIR not only get bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf . The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C. is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicate of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante- timed to give it the colour of a promptly lodge FIR. In
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our opinion, on account of the infirmities as noticed above, the F.IR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW.8"
Earlier, the fact that the number of FIR or crime number was not found in the inquest report or in the requisition for the post-mortem was adversely commented upon by the learned Judges. The fact situation is more or less the same here. We do not think that there is anything in the decision of this Court in Shiv Ram V State of U.P. which goes against the legal position laid down in Meharaj Singh case. No broad proposition can be said to have been enunciated in that later case that inordinate and unexplained delay in sending the F.I.R. to the Magistrate would be an immaterial factor liable to be ignored altogether."
There is no dispute in respect of proposition of law laid down by Hon'ble Supreme Court on this point. However, most important thing while considering the delayed receipt of F.I.R. is to see as to whether the prosecution has established a case that fardbeyan was recorded with promptitude and thereafter investigation, such as preparation of inquest report, seizure list, recording of statements, have commenced with immediate effect or not and if the prosecution is in a position to establish the fact that after the occurrence fardbeyan was recorded immediately and
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thereafter investigation had commenced, then delayed receipt of the F.I.R. in the court losses its significance . In Pala Singh's case, reported in AIR 1972 SC 2679 ( Pala Singh & Anr Vrs. State of Punjab), the Hon'ble Supreme Court while considering the delayed receipt of F.I.R. has held that delay in receipt of occurrence report by the Magistrate by itself does not make the investigation tainted . Paragraph nos.3 and 7 of the said Judgment , if it is quoted would suffice the purpose and same are as follows:
"3. The learned Additional Sessions Judge acquitted all the accused persons holding that the Assistant Sub Inspector , Kashmiri Lal, whop had investigated the offence had not performed his duties in a fair and straightforward manner and that the prosecution evidence was not trustworthy so as to bring home the offence to the accused beyond the possibility of a reasonable doubt. The trial court expressed the view that the first informant report had been recorded after great delay and after there had been consultation with the interested persons. The special report had also not reached the duty magistrate till after the expiry of 8 or 9 hours though the duty magistrate lives in the same town. The inquest report prepared by A.S.I. Kashmiri Lal had also been tampered with inasmuch as there were interpolations in the statements of at least two witnesses recorded herein. Gokal Chand ( P.W.3) was also disbelieved
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by the trial court and so was Trilochan Singh ( P.W.9). The recovery of blood -stained sword at the instant of Trilok Singh, appellant, was also discarded as unreliable. The site plan prepared by A.S.I. Kashmiri Lal was also held to have been prepared not, as it purported to be, before 9.45 a.m. but long thereafter when he had decided to implicate Hazara Singh also as a party to the conspiracy under S.120B ,I.P.C. As observed earlier, all the accused were acquitted by the learned Additional Sessions Judge.
7. Shri Kohil strongly criticized the fact that the occurrence report contemplated by S.157 Cr.P.C. was sent to the magistrate concerned very late.
Indeed, this challenge, like the argument of interpolation and belated dispatch of the inquest report, was developed for the purpose of showing that the investigation was not just, fair and forthright and, therefore, the prosecution case must be looked at with great suspicion. This argument is also unacceptable. No doubt , the report reached the magistrate at about
6 p.m. S.157, Cr.P.C. requires such report to be sent forthwith by the police office concerned to a Magistrate empowered to take cognizance of such offence. This is really designed to keep the magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under S.159.But when we find in this case that the F.I.R. was actually recorded without delay and the
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investigation started on the basis of that F.I.R. and there is no other infirmity brought to our notice , then, however improper or objectionable the delayed receipt of the report by the magistrate concerned if cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. It is not the appellants' case that they have been prejudiced by this delay."
35. On this very point, it is also relevant to refer a Judgment of the Hon'ble Supreme Court, reported in 2007 AIR SCW 684 ( Sarvesh Narayan Shukla Vrs. Durga Singh & Ors.) In the said case also, the F.I.R. was received much after the lapse of several days i.e. on 4.4.2009 the incident had taken place, however, special report by the Magistrate was received on 8.4.2009. The Hon'ble Court was of the view that since after the occurrence , police had taken immediate steps and in that way inquest report was prepared and dead body was sent for postmortem immediately, and as such, the delayed receipt of the F.I.R. was considered by the Hon'ble Supreme Court as no significance. In the case in hand , there is specific case of prosecution that the occurrence was witnessed by P.Ws 1 and 2 who were coming along with deceased Bir Kumar Singh, immediately thereafter ,i.e. within an hour the police arrived at the place of occurrence and recorded the fardbeyan
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of the occurrence at 6.30 P.M., in between 7.15 P.M. and 7.45 P.M. inquest reports of all the three dead bodies were prepared , F.I.R. was drawn up at 11.30 P.M. and at about 10.00 the dead bodies were sent for conducting postmortem examination and thereafter postmortem was held in the morning on 2.3.2001, and as such, the argument of learned counsel questioning the veracity of the fardbeyan or alleging ante-dating of the F.I.R. appears to be not sustainable and is fit to be rejected.
36. So far as the arguments advanced on behalf of the appellants on the point that no charring/tattooing was found on the injuries of any of the deceased creates doubt on the claim of evidence of P.Ws 1 and 2 is concerned, we are of the view that in the present case, there is no inconsistency between ocular or medical evidence. It is consistent case of prosecution that the deceased were fired not from very close range. In absence of specific case of firing by close range there is no possibility of having charring /tattooing mark on the injuries, and as such, the arguments of the learned counsel on this point also fails.
37. Learned Senior Counsel, Mr. Rana Pratap Singh has further argued that in support of prosecution case, except the official witnesses, all witnesses are directly or indirectly related to each
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other. It was argued that P.W. 3 is own brother of the informant ( P.W.1) and deceased. Similarly, P.W.6 is brother of P.W.2 who is cousin of the informant and P.W.3. Accordingly, learned Senior Counsel emphasized that the witnesses are relative and interested, and as such, their evidence may not be termed as truthful and reliable. We may indicate that law is settled on the point that the evidence of a relative cannot be discarded if the same is inspiring confidence. The evidence of P.Ws 1 and 2 , as discussed above, do not creat any doubt in the mind of the Court that the same does inspire confidence and the same cannot be ignored . Learned Senior Counsel ,Sri Rana Pratap Singh has argued that in any event evidence of only one witness,i.e. P.W. 1 can be looked into with suspicion and on the basis of P.W.1, the conviction of all the appellant appears to be not sustainable .While replying this question Sri Kanhaiya Prasad Singh, learned Senior Counsel for the informant, invited our attention to the provisions contained in Section 134 of the Evidence Act and to corroborate this provision, the learned senior Counsel also referred to a Judgment of Hon'ble Supreme Court , reported in AIR 1983 SC 126 ( Maqsudan Vrs. State of Uttar Pradesh) . At this juncture, it is necessary to quote the provision contained in Section 134 of the Evidence Act, 1872,
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which is as follows:
"134.No particular number of witnesses shall in any case be required for the proof of any fact."
38. The Hon'ble Supreme Court has categorically held that in a case, number of witnesses hardly matter. It is quality of evidence, which is to be looked into. In view of the statutory provision of the Evidence Act as well as law laid down by the Hon'ble Supreme Court , there is not doubt in the mind of the Court that evidence of P.Ws 1 and 2 in the facts and circumstances of the present case can be ignored .
39. The plea taken on behalf of the appellants regarding non-examination of any witness from the village Muradpur is simply to be noticed and rejected.It is specific case of prosecution that due to non-withdrawal or compromise of earlier case,i.e. Ajimabad P.S. Case No.36 of 1999 , the appellants had committed the present crime. If the conducts of appellants are examined on this point of view one can easily come to the conclusion that why witnesses from Muradpur village had not dared to depose against the appellants or in support of prosecution case.
In view of the facts and circumstances as mentioned herein above, it is evident that the prosecution has proved its case beyond
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all reasonable doubt and the learned trial judge while convicting and sentencing the appellants has not committed any error or mistake, and as such, both the appeals fail and the same are dismissed.
Accordingly, both the appeals stand rejected.
( Rakesh Kumar, J) Dharnidhar Jha, J: I agree.
( Dharnidhar Jha, J) Patna High Court,Patna Dated: the 29th January,2010 Nawal Kishore Singh/ A.F.R.