Jharkhand High Court
Shambhu Pandit & Anr. vs State Of Jharkhand on 20 April, 2017
Equivalent citations: 2017 AJR 34
Author: Pradip Kumar Mohanty
Bench: Ananda Sen, Pradip Kumar Mohanty
Criminal Appeal (DB) No. 23 of 2006
with
Criminal Appeal (DB) No. 353 of 2006
Against the judgment of conviction and order of sentence dated 14/11/2005 passed by
The Additional Sessions Judge, F.T.C-V, Deoghar in Sessions Case No. 312 of 2004.
1. Sambhu Pandit
2. Puran Sah..................... Appellants (In Cr. Appeal No. 23/2006
1. Ram Pandit..................... Appellant (In Cr. Appeal No. 353/2006)
Versus
The State of Jharkhand............... Respondent (In both the appeals)
......
For the Appellants : Mr. Anurag Kashyap, Advocate
M/s Priya Shresth, Sanjiv Thakur, Advocates
For the Respondent : Mr. Ram Prakash, A.P.P.
......
P R E S E N T
The Hon'ble the Chief Justice
The Hon'ble Mr. Justice Ananda Sen
J U D G M E N T
C.A.V. on 06.12.2016 Delivered on 20/04/2017
Ananda Sen, J. Both the appeals, arising out of the common impugned judgment,
were heard together and are being disposed of by the common judgment.
2. The appellants have preferred these appeals challenging the judgment of conviction and order of sentence dated 14 th November, 2005, passed by the Additional Sessions Judge, F.T.C.V, Deoghar in Sessions Case No. 312 of 2004, by which all the appellants have been convicted for committing an offence under Sections 302/34 of the Indian Penal Code, and have been sentenced to undergo imprisonment for life for offence under Section 302/34 of the Indian Penal Code, alongwith a fine of Rs. 5000/ each and in default of payment of fine, further imprisonment for one year. The appellants, Shambhu Pandit and Puran Sah (in Cr. Appeal No. 23 of 2006) have also been convicted for committing an offence under Section 27 of the Arms Act and have been sentenced to undergo R. I. for 7 years for the said offence. However, both the sentences were directed to run concurrently.
3. It is stated that appellant Ram Pandit of Cr. Appeal (DB) No. 353 of -2- 2006 died during pendency of the appeal and, therefore, his appeal bearing Cr. Appeal (DB) No. 353 of 2006 is abated vide order dated 6 th December, 2016..
3. A First Information Report was lodged on the basis of fardbeyan of one Rajesh Kumar Rai (PW9) on 17.10.2003 at 20.30 hours in Village Kanudih, stating therein that his late father Mahendra Pd. Rai was running a Grocery shop for the last 10 years on a piece of land belonging to the accused Ram Pandit in Hamlet (Tola) Kanudih, Mauza Rakti under Sarwan Police Station. The shop was constructed by the deceased as he had given some advance/loan to the accused Ram Pandit. It is alleged that for the last few years the accused Ram Pandit was threatening the deceased to remove the said shop. This fact was narrated by the deceased to the informant (PW9), members of his family and also other members of his locality. On 17.10.2003, at about 06.30 P.M., when the informant was in the Grocery shop along with his father, Ram Pandit called his father from the shop and took him at some distance. The informant became inquisitive and came out of the shop and saw that there was hot talk going on between his father and Ram Pandit. The accused Sambhu Pandit and Puran Sah along with two unknown persons were also present there. In the meantime, Ram Pandit ordered to kill the deceased. On receiving such order, the accused Sambhu Pandit, who was having a pistol in his hand, shot at the deceased and the accused Puran Sah, who also was having pistol in his hand, shot at the deceased due to which the deceased sustained gunshot injuries and fell down. The informant raised hue and cry (hulla). Upon hearing such hue and cry and also the sound of gunshot, several persons of the neighbourhood along with his uncle Sagar Pd. Roy (PW1) arrived there. By that time, the deceased, who was lying drenched with the blood, was already dead. The informant claimed that Ram Pandit, Sambhu Pandit, Puran Sah along with two unknown persons sharing common -3- intention between themselves, killed his father.
4. The fardbeyan of the informant was registered as Sarwan P.S. Case No. 101 of 2003. The police took up the investigation and after completion of the same, submitted charge sheet against all the accused persons including both these appellants for committing offence under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act and on the basis of which the learned Chief Judicial Magistrate, took cognizance of the offences and, thereafter, the case was committed to the Court of Sessions where the charges were framed. As the appellants claimed to be tried, they were put on trial.
5. The prosecution in order to prove its case examined altogether 11 witnesses. PW1 is Sagar Pd. Roy, PW2 is Nakul Pd. Roy, PW3 is Biranchi Pd. Roy, PW4 is Tripurari Pd. Roy, PW5 is Barun Pd. Rai, PW6 is Mukeh Kr. Rai, PW7 is Suresh Pd. Rai, PW8 is Shyam Charan Rai, PW9 is Rajesh Kr. Rai, who is also the informant, PW10 is Dr. T. P. Singh, who had conducted the Post Mortem examination of the dead body of the deceased and PW11 is the Investigating Officer Lalan Prasad, who had investigated the case and submitted charge sheet.
6. PW1 is Sagar Pd. Roy, who is the cousin of the deceased. He deposed that on 17.10.2003 at about 06.30 P.M while he was going toward the pond, he heard the sound of gunshot and hue and cry of the informant Rajesh Kr. Rai (PW9). On hearing such sound, he rushed towards the place of occurrence and saw that the deceased Mahendra Pd. Rai was lying dead about 20 feet away from his shop drenched with blood. He saw the bullet injuries on the top of the eyes and on the chest of the deceased. He stated that the deceased was running his shop on the land of Ram Pandit and Ram Pandit was telling him to vacate the land. He further deposed that at the time of occurrence when the deceased was sitting on a cot outside his shop, he was called by the accused Ram Pandit, who was accompanied by the accused Sambhu Pandit, Puran -4- Sah and two other unknown persons. Verbal altercation had taken place between them and thereafter, on the order of Ram Pandit, the accused Sambhu Pandit and Puran Sah shot at the deceased resulting into his death. In his crossexamination, he deposed that there are four hamlets (Tola) in Rakti Village namely, Mushar, Kanu, Pandit and Bhumihar/Brahmin. The distance between Bhumihar and Kanu Tola is about 200 yards and the pond was situated in between these Tolas. He stated that in the North of the Shop of the deceased is the residence of Deonarayan Pandit, in the South there is residence of Narayan Pandit, in the West there is house of Jitu Sah and in the East there is the house of Ram Pandit. He further deposed that on hearing hue and cry, he straightaway came to the place of occurrence. He stated that before him some females from the house of Deonarayan Pandit and some persons of Kanu Tola namely Chanchal Sah and the wife of Gulab Sah were present there. He further deposed that he met with the police on that very day at the police station and informed the police about the occurrence and brought the police at the place of occurrence. He further deposed that he did not remember as to what was written in the police station at that time. He further deposed that from the place of occurrence he returned to his home and, thereafter, went to the police station and informed the police about the occurrence in detail but the police has not obtained his signature at the police station rather they recorded his statement at Kanudih Tola itself. He denied the suggestions that the deceased was murdered by some miscreants and the appellants were falsely implicated in this case. He identified his signature as a witness of the First Information Report.
7. PW2 is Nakul Pd. Roy. He deposed that after hearing hue and cry, he reached at the place of occurrence and saw PW1 Sagar Pd. Roy and the informant (PW9) and several other villagers were present there. He saw that the deceased was murdered and there was blood stains at the place of -5- occurrence and PW9 the son of the deceased and the informant informed him about the occurrence.
In his crossexamination, he deposed that the deceased was his distant relative. He further deposed that alongwith him, Sanjit, Ranjit, Tripurari also went to the place of occurrence. He further deposed that he came to know from the son of the deceased that there was a dispute between Ram Pandit and the deceased in relation to the grocery shop, which Ram Pandit wanted to be vacated. He further stated that six months prior to the incident, once, in his presence the deceased was asked to vacate the shop. He further stated that he did not go to the police station rather PW1 Sagar Pd. Roy, Shyam Rai (PW8) and Biranchi Roy (PW3) went to the police station and police reached at the place of occurrence after 2 2 ½ hours of the occurrence. I.O had first seen the dead body and took photograph of the same and, thereafter, recorded the statements of the informant PW9. His statement, as well as the statements of others were also recorded. He denied the fact that the deceased was money lender. Thus, it is established that this witness is not an eyewitness to the occurrence, rather is a post occurrence witness.
8. PW3 is Biranchi Pd. Roy, who, upon hearing the hue and cry came at the place of occurrence and saw that Mahendera Pd. Roy was shot dead. He stated that he could come to know about the entire occurrence and the manner of assault from the informant PW9. He further stated that at the place of occurrence he did not find any empty cartridge or any incriminating materials. He further stated that he is not related with the deceased.
9. PW4 Tripurari Pd Roy, is also a post occurrence witness. He stated that after hearing hue and cry, he reached at the place of occurrence and saw the dead body of the deceased. He further stated that PW1 informed and narrated the entire story to him. He further stated that the police had not taken statements of any persons in his presence. He further stated that -6- Shyam Rai and others went to the police station. He further deposed that there was enmity between the deceased Mahendra Pd. Roy and Sambhu Pandit.
10. PW 5 Barun Pd. Rai is also a hearsay witness, who, after hearing the sound of gunshot, reached at the place of occurrence and found the deceased Mahendra Roy in a pool of blood. He stated that the informant Rajesh Kr. Rai (PW9) narrated the entire incident to him. He stated that the deceased had told him that the shop was taken on lease from Ram Pandit and Ram Pandit was pressurizing him to vacate the same. He further stated that the deceased used to say that when Ram Pandit will return his money, only then he would vacate the shop. He stated that this was the ground for commission of murder. He admitted that he is the cousin of the informant. He showed his ignorance about the lease, period of lease and consideration of lease. He further stated that he has given his statements to the police at the place of occurrence but the statements was only recorded after 23 days of the occurrence when the Dy. S.P reached at the place of occurrence. He admits that alongwith him, several other persons namely Suresh Rai, Nakul Pd. Rai, Tripurari Pd. Rai, Sanjit Rai, Prafull Rai went to the place of occurrence. He further stated that several other persons of Kanu Tola namely Kali Sah, Basudeo Sah, Pokhan Sah, Visku Sharma and others were also present there.
11. PW6 Mukesh Kumar Rai, is another son of the deceased. He deposed that he was in his house when the occurrence has taken place. On hearing hue and cry as well as the sound of gunshot, he went to the shop of his father situated at Kanudih Tola and found that his father was lying dead. His elder brother PW9 Rajesh Kr. Rai narrated the entire story and the manner of occurrence to him. He stated that Ram Pandit had taken money from his deceased father and was threatening him to vacate the shop. Since the shop was not vacated, Ram Pandit got his father murdered. He further 7 stated that one month prior to the occurrence there was hot exchange of talks between his deceased father and Ram Pandit and Ram Pandit threatened the deceased of dire consequence. His deceased father asked Ram Pandit to return the money to enable him to vacate the shop. He stated that he, along with several other persons, went to the place of occurrence. He stated that there was enmity between his father and Puran Sah also. The shop of Puran Sah got closed after the deceased open his grocery shop. He further stated that Shambhu Pandit was also in inimical terms with the deceased because of some incident of theft, in which the brother of Shambhu Pandit was involved. He further stated that 1012 days prior to the occurrence, Shambhu Pandit threatened the deceased of dire consequences. He stated that the medical shop of Puran Sah is just next to the shop of the deceased.
12. PW7 is Suresh Pd. Rai. He reached the place of occurrence after hearing the sound of gunshot. He stated that he had seen the dead body of the deceased. He further stated that there was one bullet injury on the top of the eyes of the deceased and there was also an entry and exit wound caused by the bullet on the chest and back of the deceased. He stated that PW9 Rajesh Rai has narrated the entire story to him. He has exhibited his signature on the inquest report.
13. PW8 is Shyam Charan Rai, who is also a hearsay witness and witness to the inquest. He has stated that he had put his signature on the inquest report.
14. PW9 Rajesh Kr. Rai is the son of the deceased as well as the informant of the case. He deposed that on 17.10.2003, his father was sitting just in front of his grocery shop in a Cot. At about 06.30 P.M Ram Pandit came and called his father and took him to some distance. There was an oral altercation between them. At that time, accused Puran Sah, Shambhu Pandit and two other unknown persons were also present there. There was 8 altercation amongst all and when Ram Pandit ordered to kill the deceased, the accused Shambhu Pandit and Puran Sah, who were having pistol in their hands, shot at the deceased due to which the deceased immediately fell down and succumbed to the injuries. The accused Shambhu Pandit shot on the top of the right eye and the accused Puran Sah shot at the chest of the deceased. This witness further stated that he immediately raised hulla (hue and cry). On hearing the said hue and cry and the sound of the gunshot, the neighbours and his uncle Sagar Rai (PW1) reached there and, thereafter, several other persons also reached. Then he narrated the entire story to everyone. The police officials came and he gave his statement, which was recorded. He exhibited his signature on the First Information Report. He stated that his father had given an advance to Ram Pandit and had constructed the shop on the land of Ram Pandit. Ram Pandit was insisting the deceased to vacate the said shop and used to threaten him. Since his father (the deceased) had not vacated the said shop, he was murdered at the instance of Ram Pandit. He stated that he had lodged a case against the wife of the accused Puran Sah on the ground of administering poison to him through "prasad" (offering to God). He stated that the police had also instituted a case against him for lodging false case. He further stated that he came to know from his father that his father had given an advance of Rs. 15,000/ to Ram Pandit but he could not say as to when the said amount was given.
In his crossexamination, he has stated that on the fateful day Ram Pandit came at the place of occurrence and asked the deceased to vacate the shop. He stated that Deo Narayan Pandit is the immediate neighbour of the shop but he did not see him there. He stated that two consecutive firing were made and he chased the accused and tried to catch them but all of them fled away towards the northern side. He further stated that on his hue and cry, Deo Narayan Pandit and several other persons came and assembled there. He 9 further stated that Pawan Sah, Ranjit Sah, wives of Gulab Sah and Dipu Sah of Kanudih Tola had reached the place of occurrence. He further stated that he told about the incident to everyone. In Para20 of his crossexamination, he stated that he instructed Sagar Rai (PW1) to go to the police station and give information that these persons have committed murder of his father. He further stated that the police reached at the place of occurrence at about 08.30 P.M. He admitted that he gave his statement before the police. He further stated that he never reported the police on earlier occasion about the threat given to his father by Ram Pandit nor he made any complaint to the village Headman. He further stated that the accused Shambhu Pandit first shot at the deceased. He also did not see any empty cartridge. He further stated that there was no enmity between Shambhu Pandit, Puran Sah and his father. He further stated that Ram Pandit used to threaten the deceased since last 45 months. He denied the fact that the accused persons have been falsely implicated in this case because of the enmity.
15. PW10 is Dr. T.P.Singh, who had conducted the post mortem examination of the dead body of the deceased and found the following injuries: "External : Rigor mortis present in all the four limbs, mouth closed, eyes open(i) abrasion about 1.5 cm x 1 cm with blackening all around just above the right eyebrow caused by firearm .
(ii) Wound of entry of firearm 2 cm x 1 cm on upper part of chest wall in midline with blackening all around.
(iii) Wound of exit 3 cm x 1.5 cm in the upper part of the back corresponding to the wound of entry.
Internal findings : Sternum bone fractured, chest easily full of blood, heart punctured, cavities of the heart empty, lungs, liver, spleen, both kidneys intact and pale, stomach contained marquis fluid. Intestine faecal matter present. Urinary bladder empty. Time elapsed since death within 24 hours of Post Mortem examination.
Cause of death : Excessive hemorrhage and shock.
He identified his signature on the postmortem report, which has been exhibited as Ext.5."
-10-
16. PW11 is Lalan Prasad, who is the Investigating Officer of the case. He stated that on 17.10.2003, he received some rumor, at about 20 hours that in Kanudih Tola of village Rakti one person has been shot dead. On hearing such information, he made a station diary entry bearing number 319 and rushed to the place of occurrence. On reaching the place of occurrence, he recorded the statement of the informant Rajesh Kumar Rai (PW9). The formal FIR was exhibited by this witness. He stated that he saw the dead body of the deceased and examined the place of occurrence and found heavy blood stains on the earth. He stated that the dead body was lying in a pool of blood. He further stated that the place of occurrence is densely populated area. He described the place of occurrence. He further stated that photograph of the dead body was taken and he had recorded the statements of the witnesses Nakul Pd. Roy, Chiranji Pd. Rai, Tripurari Kumar Rai, Ranjit Kumar Rai, Varun Kr. Rai, Deonarayan Pandit @ Debu Pandit, Chaturbhuj Sah, Purshottam Sah, Suresh Rai, Shyam Charan Rai etc. He stated that the dead body was sent for post mortem examination. He deposed that he had filed charge sheet in the case and admitted that Deonarayan Pandit, Chaturbhuj Sah and Purshottam Sah are all resident of Kanudih Tola, but their names were not included in the charge sheet. He denied the fact that any person from the Village or any relative of the deceased came to the police station to give information about the occurrence. He deposed that the witness Suresh Pd. Rai met him at the place of occurrence only where his statement was recorded. He stated that the witness Sagar Rai did not say to him that he was going to the Pond and at that point of time on hearing the sound of gunshot, he reached at the place of occurrence. He further stated that in the case diary he has mentioned about the station diary entry. He did not find any empty cartridge at the place of occurrence. He further stated that the accused persons were not present in their houses when he conducted the raid. -11-
17. After closure of the prosecution witnesses, the accused persons were examined under Section 313 of the Code of Criminal Procedure. They denied their involvement in the alleged occurrence in any manner.
18. One witness was also examined on behalf of the accused persons as DW1 namely, Murari Sah. He is the brother of the accused Puran Sah. He stated that he, after hearing the sound of firing crackers and some hue and cry, went to the place of occurrence and saw that Mahendra Rai was lying on the ground and hue and cry was going on there. In his crossexamination, he failed to say that who were with him and were playing cards before he reached at the place of occurrence. He further did not say that who had won the game of cards. He denied the fact that he had given evidence at the instance of the accused.
19. Learned senior counsel appearing for the appellants submits that on the aforesaid evidences, adduced during trial, the appellants could not have been convicted. He further submits that there is no material on record to convict the appellants for committing the offence under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. He further submits that the F.I.R, which has been instituted, is not on the basis of the original information given to the police. It is contended that the statement of PW9 is a subsequent statement before the Police, which cannot be the fardbeyan forming the basis of the formal F.I.R. He further submits that the evidences are quite cogent and clear to suggest that PW1 had gone to the police station and had reported the matter to the police and that was the original statement, which was not brought on the record. Thus, the present F.I.R is not the original one. It is also submitted that the station diary entry was not produced also. Thus, the case of the appellants is prejudiced. He further submits that the date of occurrence is 17.10.2003 and as per the evidences gathered, the police reached at the place of occurrence on the same very day at about 08.30 12 P.M, but surprisingly the F.I.R was sent to the Court on 19.10.2003, i.e. after two days of the occurrence, which creates doubt about the F.I.R. It is submitted that the delay of those two days, has not been explained. He further submits that the material witnesses were not examined in the instant case. PW9 and other witnesses, in their depositions, have taken the names of many persons but they were not examined, which prejudiced the case of the of the appellants. It is also submitted that the witnesses, who deposed, were from Bhumihar Tola of Village Rakti, whereas the occurrence had taken place at Kanudih Tola, but surprisingly none of the persons/resident of Kanudih Tola were examined. He further submits that if those persons would have been examined, the correct picture would have come, which the prosecution had tried to conceal. He further submitted that the investigation is absolutely perfunctory, which would be apparent from the fact that the police had seen the dead body and took photograph of the same on the very same day of occurrence but surprisingly the inquest report was prepared one day after. He further submitted that there was consistent evidence that the deceased was lying in a heavy pool of blood, but no care was taken by the Investigating Officer to seize the blood stained earth from the place of occurrence. He further submits that the inquest report also differs from the postmortem report, which is a major contradiction. He further submits that these two appellants admittedly, had got no enmity with the deceased or his family members, but they have been falsely implicated in this case without there being any mens rea. It is further submitted that from the evidence of PW9, it is quite clear that he is in the habit of lodging false cases. Learned senior counsel further submits that the entire conviction hinges on the evidence of the alleged sole eyewitness, i.e. PW9 and the evidence of PW9, being not reliable, should have been discarded by the Court below and the appellants should have been released.
13 To buttress the entire arguments, made on behalf of the appellants, the learned senior counsel has placed reliance upon the several judgments of the Hon'ble Supreme Court, such as, "T.T.Antony & Others versus State of Kerala & Others [2001 (3) Crimes 276 (SC)], "Bhajan Singh @ Harbhajan Singh versus State of Haryana [2011(3) East. Cr. Cases 197(SC)], "Shivlal & Another versus State of Chhattisgarh [2012 (1) East Ct. C 184 (SC)], "Superintendent of Police, CBI & Ors. versus Tapan Kr. Singh [2003 (2) Crimes 300 (SC) as well as one judgment of Patna High Court, i.e. "Ganesh Mahra & Others versus Raju Ram Mahto & Others [ 2012 (2) East Cr. C 116 (Pat)]".
20. On the other hand, learned Addl. P.P submits that from the evidences, adduced during the trial, it appears that the prosecution has proved the involvement of these two appellants in the alleged offence beyond all reasonable doubt and, thus, they were rightly convicted by the Court below. He further submits that the evidence of PW9 is cogent and trustworthy and the defence could not adduce anything in their favour from the statements of the witnesses. He further submits that there is corroboration of the statements by other witnesses. He further submits that there is no ambiguity in the F.I.R. He further submits that post mortem report corroborates with the injuries received by the deceased. He further submits that there is nothing on the record to disbelieve the statement of PW9 and thus, the conviction is liable to sustained without any interference.
21. Now, on the evidence adduced by the prosecution, it has to be seen whether the prosecution has been able to prove the charge against these appellants beyond all reasonable doubts or not. Admittedly, there is only one eyewitness to the occurrence, i.e. PW9. PW9 in his evidence has deposed that while he was in his shop and the deceased (his father) was sitting in a cot, outside the shop, Ram Pandit came accompanied by these two appellants and took his father to some distance. There was verbal altercation which took 14 place between Ram Pandit and the deceased and, thereafter, Ram Pandit directed these two appellants to kill the deceased. On receipt of such instruction/direction, these two appellants took out firearms and shot at the deceased resulting in his death at the spot. This PW9 tried to chase the accused persons by making a hue and cry (hulla) but he could not catch any of them and they fled away. On his hue and cry, PWs. 1, 2, 3, 4, 5, 6, 7 and PW8 rushed to the place of occurrence and heard about the incident from PW9. None of these witnesses, who reached immediately after the occurrence, has stated that they have seen these two appellants fleeing from the place of occurrence. The witnesses have given the boundary of the place of occurrence. PW1, in his evidence, has stated that the houses of Deonarayan Pandit, Narayan Pandit and Jitu Sah were adjacent to the place of occurrence, but surprisingly none of them were cited as a witness in this case nor they were produced to depose. All these witnesses, who have been produced to depose in this case, were from a different locality of the Village, i.e. Bhumihar/Brahman Tola. The occurrence had taken place at Kanudih Tola but surprisingly none of the persons of Kanudih Tola was examined by the prosecution during trial. The Investigating Officer, in Para2 of his evidence, has stated that Deonarayan Pandit, Chakradhari Sah and Purshottam Sah are of Kanudih Tola, but they have not been cited as witnesses though their statements were recorded under Section 161 of the Code of Criminal Procedure. Non examination of these persons, who were very much within the proximity of the place of occurrence and who could have at least seen the presence of these two appellants at the place of occurrence, creates doubt about the presence of these two appellants at the place of occurrence. It is also worthwhile to note that the witnesses, who reached immediately after the occurrence on hearing the hue and cry raised by PW9, have not stated that they have seen these two appellants fleeing from the place of occurrence. Thus, the element of doubt is 15 always there about the presence of these appellants at the place of occurrence.
22. As stated earlier, this case hinges on the evidence of the sole eyewitness PW9. PW 9 in his evidence, have clearly stated that he had some animosity with the appellant Puran Sah. He stated that he had lodged a case against his wife alleging that he had been administered poison but it has also come in the evidence that the police had instituted a case against this PW9 for lodging the false case. This clearly suggests that this PW9, who is the sole eyewitness, implicated these two appellants, who were in inimical term with him. In this background, the element of doubt always remains on the point of false implication of these two appellants in the alleged crime by PW9. All the other witnesses are the post occurrence witnesses and are hearsay witnesses. Whatever knowledge other witnesses have gathered is from the narration made before them by this PW9. Thus, the element of doubt always remains.
The fardbeyan was recorded at the place of occurrence, when the Investigating Officer reached there. The Investigating Officer, in his evidence, has stated that on receiving some rumor that some incident has occurred in Kanudih Tola, he reached there and came to know about this occurrence and, thereafter, recorded the statement of PW9, who is the son of the deceased and the informant. This statement was taken to be the first information about commission of murder and thus became the F.I.R. A point has been raised that the statement of PW9, which is the basis of the formal FIR, is not the first and original version. At this point, it is necessary to deal with the evidences of PWs1, 9 & 11 (I.O.). PW1, in his evidence in Paras 11 & 12, has categorically stated that he went to the police station after the occurrence and gave information to the police officials and on receipt of such information, the police accompanied him to the place of occurrence. From his deposition, it is also clear that some written statement was given to the police 16 but he was not aware as to what was written. He also stated that he had given detailed information about the occurrence to the police in the police station. This clearly suggests that this witness has gone to the police station and had informed about the occurrence. It also suggests that some written information was given to the police.
23. PW9 also in Para20 has stated that he directed PW1 to go to the police station and inform the police about the incident. Thus, the point that the information was given to the police about the occurrence of murder at the police station, finds corroboration from the statement of these two witnesses.
When we analyzed the statements of PW11, who is the Investigating Officer, we get a different picture. The Investigating Officer, in his evidence, has stated that he received rumor that in the Village Rakti, Tola Kanudih one person has been murdered. As per the statement of PW11, a Sanha was registered but this Sanha was never brought before the Court. This witness, in Paras 2, 3 & 4, has categorically state that neither any person from the Village nor any of the relative of the deceased, went to the police station to give information. He stated that he had never met any relative of the deceased or the informant in the police station. He stated that he recorded the statement of the informant (PW9) in the Village, which formed the basis of the F.I.R.
24. Thus, there are serious contradictions in the statements of PWs1, 9 and 11. As per the evidence of PW9, he has given instruction to PW1 to go the police station and give information about the occurrence. PW1 corroborates the same and says that he went to the police station, gave information and something was written on his information, whereas the Investigating Officer (PW11) has completely denied the said fact. The Investigating Officer says that a station diary entry was made but surprisingly, the same was also not produced. This creates doubt about the F.I.R itself. A doubt has also been casted as to whether the statement of PW9 is the first 17 statement about the incident or a subsequent one. If we take the evidences of PWs 1 & 9, it can be concluded that the statement given by PW9 at the place of occurrence, is a subsequent statement and not the first information given to the police.
25. The Hon'ble Supreme Court in the case of "T.T.Antony" (supra) in para19 has held that as information given under subsection (1) of Section 154 Cr.P.C is commonly known as First Information Report (F.I.R.) though this term is not used in the Code. It is a very important document. And as its nick name suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forwarding of a police report under Section 173 of Cr.P.C. It is quite possible and it happens to infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house dairy and this is implied in Section 154 of Cr.P.C. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information ReportF.I.R., postulated by Section 154 of Cr.P.C. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offense as may come to his notice during the investigation, will be statements falling under Section 162 of Cr.P.C. No such information/statement can properly be treated as an F.I.R and entered in the station house diary again, as it would in effect be a second FIR 18 and the same cannot be in conformity with the scheme of the Cr. P.C.
26. Further it has been held in para20 that the scheme of the Cr. P.C. is that an officer in charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr.P.C on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. It has been further held in Para21 that "from the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr.P.C only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the F.I.R. in the station house diary, the officer in charge or a Police Station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Cr. P.C.
27. Thus, from the law laid down by the Hon'ble Supreme Court, it is quite clear that the statement of PW9, which is taken to be first information report, is hit by Section 162 Cr. P.C and cannot satisfy the requirement of Section 154 Cr.P.C. Further we find that the FIR was transmitted to the Court after two days of the occurrence. There is not a single whisper in the entire evidence as to why the delay of two days was caused. It is the duty of the Investigating Officer to transmit the FIR to the Court within a shortest possible time. Extraordinary delay in sending the FIR to the Court provides legitimate basis for suspecting prosecution case taking investigation to be 19 tainted. At least some explanation should have been given as to why the FIR was sent to the Court on 19.10.2003 when the occurrence had already been taken place on 17.10.2003 and the police reached the place of occurrence in the evening on the same day itself and recorded the statement. Further the investigation is also perfunctory as no blood stained earth was seized by the police. It is also strange as to why the inquest report was prepared one day after the occurrence. It is also surprising that the immediate neighbours of the place of occurrence though were examined under Section 161 Cr.P.C., were not produced as witnesses during the trial.
28. So far as credence of PW9, who is the only eyewitness, is concerned, the same is also doubtful as it was admitted by him that there was enmity with Puran Sah, one of the appellants, as he has lodged a case of poisoning against the wife of Puran Sah in which the police investigated and found the case to be false and lodged a counter case against the informant PW9. Thus, there is ground to falsely implicate this appellant in the alleged offence. Admittedly, there was dispute between Ram Pandit and the deceased but not with Puran Sah. Nothing has been brought on record as to why Puran Sah and other appellant would indulge in commission of the murder of the deceased.
29. On the cumulative assessment, it can be concluded that the prosecution has failed to prove the charges against these appellants beyond all reasonable doubts. The duty of the defence is only to cast doubt on the prosecution case and when the defence casts a reasonable doubt, they succeeded in their duty. In this case, the defence has successfully casted doubt upon the involvement of the appellants in this case on the ground discussed above. Thus, this is a case where the prosecution has failed to prove its charge beyond all reasonable doubts. The benefit of doubt will definitely go in favour of these appellants. Since, there is element of doubt in respect of 20 involvement of the appellants in the alleged offence, the conviction and sentence passed against them for the offence under Section 302/34 of the Indian Penal Code as also under Section 27 of the Arms Act, is absolutely bad in law.
30. In view of the discussions and finding above, we hold that the appellants could not have been convicted and sentenced by the trial court.
29. In the result, this appeal is allowed. The impugned judgment of conviction and sentence, passed by the trial court against appellant nos. 1 & 2 namely Sambhu Pandit and Puran Sah (in Cr. Appeal No. 23/2006), in Sessions Case No. 312/2004, is hereby set aside and both the appellants are acquitted from the charges under Section 302/34 of the Indian Penal Code as well as under Section 27 of the Arms Act. The appellants, who are in custody, are directed to be released forthwith if not wanted in any other case.
(Ananda Sen, J) Pradip Kumar Mohanty, CJ (Pradip Kumar Mohanty, CJ) Jharkhand High Court, Ranchi Dated the 20 April, 2017;
NAFR/Mukund/cp. 3