Patna High Court
Md. Dabir And Anr vs The State Of Bihar on 29 March, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.905 of 2018
Arising Out of PS. Case No.-84 Year-2013 Thana- KUMAR KHAND District- Madhepura
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1. Md. Dabir, Son of Late Maqbul Mian, Resident of Village- Yaduapatti,
Police Station- Kumarkhand, District- Madhepura.
2. Md. Jamal @ Md. Jamal Mian @ Md. Jamala, Son of Late Maqbul Mian,
Resident of Village- Yaduapatti, Police Station- Kumarkhand, District-
Madhepura.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellant/s : Mr. Uday Chand Prasad, Advocate
For the Respondent/s : Mr. Ajay Mishra, APP
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 29-03-2024
This appeal arises out of the judgment of conviction
dated 26.06.2018 and the order of sentence dated 06.07.2018
passed by learned Additional District and Sessions Judge-II,
Madhepura (hereinafter referred to as the 'learned trial court') in
Sessions Trial No. 29/2014/C.I.S.-90/2014 in connection with
Kumarkhand P.S. Case No. 84 of 2013, G.R. No. 1281 of 2013.
2. By the judgment under appeal (hereinafter referred
to as the 'impugned judgment'), the learned trial court has held
both the appellants guilty under Sections 147, 148 and 302/149
of the Indian Penal Code (in short 'IPC') and by the order of
Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024
2/41
sentence, the appellants have been ordered to suffer life
imprisonment for the offence under Sections 302/149 IPC with a
fine of Rs. 1 lakh each. For the offence under Section 147 IPC,
the learned trial court has imposed a sentence of two years
simple imprisonment and Rs. 1,000/- as fine and for the offence
under Section 148 IPC, the appellants have to suffer three years
imprisonment with a fine of Rs. 2,000/- each. In case of non-
payment of fine of Rs. 1 lakh, the appellants shall be liable to
suffer two years of additional imprisonment and on non-
payment of the fine of Rs. 1,000/- and Rs. 2,000/-, as imposed
by the learned trial court, the appellants shall undergo an
additional imprisonment of three months. All the sentences are
to run concurrently.
Prosecution case
3. The prosecution case is based on the fardbeyan of
Atabul Miya (PW-4), who is the father of the deceased. In his
fardbeyan recorded by R. N. Pandit, S.I. (Sub-Inspector) of
Kumarkhand Police Station in the district of Madhepura on
16.06.2013at 6:45 am at Primary Health Centre (P.H.C.), Kumarkhand, the informant (PW-4) alleged that on 16.06.2013 (Sunday) at about 6:00 am (morning hour), his son Matiur Rahman (the deceased) had gone to the kirana shop of Debu Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 3/41 Shah in Jaduapatti Market. He alleged that the accused persons, namely, (i) Rasul Miya, son of late Fida Miya, (ii) Md. Jamal Miya, (iii) Md. Dabir, (iv) Md. Jabbar, (v) Md. Azad, sons of late Maqbul Miya, (vi) Bipin Sah, Son of Ram Kumar Sah and
(vii) Md. Saddam Miya, Son of Md. Rasul Miya, etc., all residents of Village-Jaduapatti, P.S.-Kumarkhand armed with dabiya and farsa caught hold of his son Matiur Rahman and with an intention to kill him, Rasul Miya assaulted him by dabiya, Md. Jabbar Miya assaulted on head by farsa and chopped off both the legs. He further alleged that Md. Jamal Miya, Dabir Miya, Bipin Sah and Md. Saddam Miya all assaulted his son by lathi here and there and they injured his son by assault. On hulla, people from the village came then the accused persons fled away. According to him, the cause of occurrence is a prior land dispute. The informant alleged that the named accused persons had assaulted and injured his son Matiur Rahman with an intention to kill. The fardbeyan (Exhibit '2') resulted in lodging of a formal First Information Report (FIR) giving rise to Kumarkhand P.S. Case No. 84 of 2013 dated 16.06.2013 at 7.30 am (morning hour). The fardbeyan has been marked as Exhibit '2'.
4. In the present appeal, Md. Dabir is appellant no. 1 Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 4/41 whereas Md. Jamal @ Md. Jamal Mian @ Md. Jamala is appellant no. 2. The records would show that they were charge- sheeted vide Charge-sheet No. 147 of 2013. The prosecution has proved the said charge-sheet as Exhibit '4'. The learned Magistrate took cognizance of the offences under Sections 147, 148, 120B and 302/149 IPC. Since the offences under Sections 302/149 were triable by the court of Sessions, the learned Magistrate committed the records to the court of Sessions where it was registered as Sessions Trial No. 29 of 2014. While submitting charge-sheet against these two appellants, the investigation against the other accused was kept pending. Later on, two more charge-sheets being Charge-sheet No. 120 of 2014 and Charge-sheet No. 194 of 2014 were submitted against accused namely Md. Jabbar and Rasul Miya. In their case also, cognizance was taken by the learned A.C.J.M. and records were committed to the court of Sessions where the case was registered as Sessions Trial No. 29A of 2014.
5. Both the trials were conducted separately, though, the witnesses are the same except one Rajesh Kumar who has not deposed in Sessions Trial No. 29 of 2014 but deposed as PW-13 in Sessions Trial No. 29A of 2014. Since Md. Jabbar and Rasul Miya have also been convicted and sentenced, they have Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 5/41 preferred separate appeals being Criminal Appeal (DB) No. 1011 of 2018 and Criminal Appeal (DB) No. 977 of 2018. Those two appeals have also been heard together with the present appeal but are being disposed of by separate judgments.
6. In the present appeal, we are concerned with Sessions Trial No. 29 of 2014. From the materials available on the record, it would appear that charges were framed against the appellants under Sections 147, 148, 120B and 302/149 IPC. The charges were read over and explained to the accused in Hindi to which they pleaded not guilty and claimed to be tried.
7. Prosecution examined as many as thirteen witnesses and on behalf of the prosecution, the following documents were marked exhibits:-
(i) Exhibit '1' - Postmortem report;
(ii) Exhibit '2' - Fardbeyan;
(iii) Exhibit '3' - Inquest report carbon copy;
(iv) Exhibit '4' - Charge-sheet of Md. Jabbar;
(v) Exhibit '4/1' - Substituted by it's certified copy;
(vi) Exhibit '5' and '5/1' - Certified copy of FIR;
(vii) Exhibit '6' and '6/1' - Certified copy of deposition of Gulab Chand Das of Sessions 37/13 and Matiur Rahman;
Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 6/41
(viii) Exhibit '7' and '7/1' - Certified copy of charge- sheet of case of Kumarkhand Thana 53/13.
8. After completion of evidence of the prosecution witnesses, statement of both the accused-appellants were recorded under Section 313 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.P.C.). The defence got exhibited a certified copy of document in connection with land dispute which has been marked Exhibit 'A'.
Finding of the Trial Court
9. The learned trial court has, upon analysis of the evidences on the record, recorded a finding that Abhinandan Yadav (PW-6), Shambhu Mandal (PW-7), Ram Saran Shah (PW-8), Hasaruddin (PW-9), Debu Shah (PW-11) and Dukhiya Devi (PW-12) have supported the date, time and place of occurrence but they came to hear about the murder of the deceased Matiur Rahman from his agnates after reaching to the place of occurrence and on that basis they have deposed in trial.
10. The learned trial court further recorded that Hasaruddin (PW-9) has become hostile by claiming that he had not seen the occurrence but the Investigating Officer Anuj Kumar Singh (PW-13) has stated in his evidence that in course of investigation these witnesses had partially and indirectly Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 7/41 supported the occurrence. The learned trial court took a view that the statement of the I.O. (PW-13) saying that these witnesses had supported the prosecution case in course of their statements under Section 161 Cr.P.C. is believable.
11. The learned trial court observed by referring to the judgments of the Hon'ble Supreme Court in the case of Sarvesh Narain Shukla vs. Daroga Singh & Ors reported in AIR 2008 SC 320, Jodhraj Singh vs State of Rajasthan reported in (2007) 15 SCC 294 and Gura Singh vs State of Rajasthan reported in (2001) 2 SCC 205 that the evidence of hostile witness cannot be rejected outrightly and both parties are entitled to rely on such part of evidence which assist their case. The learned trial court has also noted the judgment of the Hon'ble Supreme Court in the case of Kalegura Padma Rao & Anr. vs. The State of A.P. reported in AIR 2007 SC 1299 in which it has been laid down that if some part of the evidence of a witness is unreliable, whereas some parts are reliable, the court can convict an accused on the basis of the reliable part of the evidence.
12. The learned trial court has further held that Shahnaj Khatun, who is wife of the deceased (PW-2), Shahnawaz Alam @ Dilkhush, who is minor son of the deceased Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 8/41 aged about 10 years (PW-5), Md. Atabul, who is the informant (PW-4) and Ashfaq, who is the sister's son of the deceased (PW-
3) are the eyewitnesses to the occurrence. These witnesses had heard hulla about the marpeet and when they reached at the kirana shop of Debu Shah, they had seen the accused persons assaulting the deceased by farsa, dabiya and lathi. These witnesses have stated that the accused persons had inflicted multiple injuries on the body of the deceased as a result of which while trying to flee away, the deceased had fallen down in a ditch but even thereafter the accused persons had been assaulting him and they fled away only when a large number of persons assembled there.
13. The learned trial court has further recorded that the eyewitness, namely Md. Shahnawaz @ Dilkhush is the son of the deceased who had gone with his father to the shop and he had seen the occurrence right from beginning.
14. The learned trial court has found that the motive behind the occurrence has been disclosed by the witnesses who have stated that earlier a life threatening attack was made by the accused persons upon the deceased for which a case was lodged and the accused persons had threatened the deceased to kill him and his family. Further evidence has come that there was a land Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 9/41 dispute between the parties. It is for these reasons that the accused persons had killed him.
Submissions on behalf of the appellants
15. Mr. Uday Chand Prasad, learned counsel for the appellants has assailed the impugned judgment on various grounds. His first contention is that there is no eyewitness to the occurrence and the learned trial court has grossly erred in the appreciation of the evidences of the so-called eyewitnesses, namely, PW-2, PW-3, PW-4 and PW-5. It is submitted that from a plain reading of the fardbeyan of the informant (PW-4) it would appear that in his fardbeyan he does not claim to have rushed to the place of occurrence on hearing hulla of a marpit at the grocery shop of Debu Shah. PW-4 has not claimed that he had personally seen the occurrence. He has also not stated as to who are the eyewitnesses. PW-4 has not stated about the presence of Shahnawaz @ Dilkhush (PW-5) who is a child witness. His presence has been disclosed only in course of investigation.
16. Learned counsel for the appellants would submit that the I.O. (PW-13) has stated in paragraph '6' of his deposition that the house of the deceased is situated at a distance of half kilometre from the place of occurrence. It is submitted Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 10/41 that in between the place of occurrence and the house of the deceased, as per the prosecution evidences, about 10-15 houses are also standing, in such circumstance, it is not believable that a hulla of marpit could have been heard by PW-4 from a distance of half kilometre, moreover, in his fardbeyan, the informant nowhere claims that he got the information of his son being assaulted. He has not named any person who came to inform him or any other family witnesses like deceased's wife (PW-2), his son (PW-5) and bhagina (PW-3).
17. Learned counsel for the appellants submits that there are many contradictions in the statement of PW-4 and in this regard, the evidence of the I.O. (PW-13) would be important. PW-13 has stated in his evidence that in course of investigation he had recorded the statement of Atabul Miya (PW-4). PW-4 had not stated that his grandson was also present with his deceased son. He has further stated that Dilkhush, who is a child witness (PW-5), had not stated that he had gone to the shop of Debu Shah with his father. The witness Zareena had also not stated that her grandson Shahnawaj had gone with Matiur Rahman. PW-13 has also stated in his fardbeyan (Exhibit '2') that Atabul (PW-4) had not stated about Ashfaque (PW-3).
18. Learned counsel further submits that Shahnaj Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 11/41 Khatun (PW-2) has though claimed to be an eyewitness but from her deposition it would appear that she is not an eyewitness to the occurrence. She has stated that she heard about her husband being assaulted by some persons whereupon she went to the grocery shop with her mother-in-law, father-in-law, bhagina and others where she saw the occurrence. It is submitted that the claim of PW-2 as an eyewitness is doubtful because when PW-4 made his fardbeyan at 6:45 am at the PHC Kumarkhand, he did not claim that he had seen the occurrence and at the same time, he did not name PW-2, PW-3 and PW-5 as eyewitnesses to the occurrence.
19. Learned counsel submits that in her cross- examination, PW-2 has stated that apart from the assailants, other people had also assembled at the said place. She identified Lakhi Devi, Narayan and Naushad Ansari but none of these persons have been examined on behalf of the prosecution. The I.O. (PW-13) has stated that he had recorded statement of Hareshwar Shah who is in the boundary of the place of occurrence but Hareshwar Shah has not been examined by the prosecution in course of trial. He has been later brought as defence witness. In paragraph '9' of his cross-examination, PW- 13 has named some persons such as Shahnaj Khatun, Zareena Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 12/41 Khatun, Dilkhush, Alam, Debu Shah, Dukhiya Devi, Abhinandan Yadav, Sambhu, Ali Hussain and Ram Saran Sah who are said to have supported the occurrence but in course of trial, the witnesses such as Abhinandan Yadav (PW-6) and Sambhu Mandal (PW-7) have stated that they had not seen the occurrence. Ram Saran Shah (PW-8) is not a witness to the occurrence, Md. Hasaruddin (PW-9), Md. Ali Hussain (PW-10), Debu Sah (PW-11) and Dukhiya Devi (PW-12) have been declared hostile as they did not support the prosecution case.
20. Learned counsel further submits that PW-2 claims that there are 10-15 houses standing in between the place of occurrence and the house of the deceased, in terms of distance PW-13 has stated that it is half kilometer. It is submitted that the claim of PW-2 that she heard hulla of maar-peet is highly doubtful considering the distance and the intervening construction of houses. In paragraph '6' of her cross- examination, PW-2 has stated that when she reached, her husband was lying down and he was bleeding from the whole body, therefore, it is submitted that PW-2 on her own statement cannot be taken as an eyewitness to the occurrence.
21. Learned counsel submits that Md. Shahnawaz @ Dilkhush (PW-5) has deposed as a child witness. On the date of Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 13/41 deposition, he disclosed his age as eleven years. From his deposition it would appear that the learned trial court did not test his ability to understand his ability to testify as a witness with respect to the facts and circumstances of the case and the need to speak truth. Learned counsel relies upon the judgment of the Hon'ble Supreme Court in the case of P. Ramesh Vs. The State Represented by Inspector of Police reported in (2019) 20 SCC 593 to submit that the learned trial judge was obliged to determine as to whether the child witness is in a fit and competent state of mind to depose and is able to understand the purpose for being present on the occasion. He has further relied upon the judgment of the Hon'ble Supreme Court in the case of Pradeep vs. The State of Haryana reported in 2023 SCC OnLine SC 777 wherein the Hon'ble Supreme Court has held that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. It has been observed in the said judgment that a child witness of tender age is easily susceptible to tutoring, therefore the Court must make careful scrutiny of the evidence of the child witness. Learned counsel submits that the I.O. (PW-13) has specifically stated in his evidence that PW-5 had not stated about his presence with his father at the time of occurrence.
Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 14/41
22. Learned counsel submits that in course of trial no independent witness has been examined, though it is stated that villagers had assembled at the place of occurrence. The independent witnesses who were investigated, as per I.Os. version have not been examined in course of trial.
23. It is stated that in this case, the fardbeyan has been antedated and it would be evident from the evidences on the record that though the fardbeyan is said to have been recorded, by S.I. R.N. Pandit (not examined) at Kumarkhand PHC at 6:45 am and a formal FIR was registered on the same day at 7:30 am, the inquest report and the postmortem report, which were prepared on the same day, did not mention the description of the case and the FIR reached in the court of learned Chief Judicial Magistrate, Madhepura only the next day, i.e. 17.06.2013 even as the Court is not situated at a far distant place and it is hardly at a distance of one hour of road journey. If the FIR was registered on 16.06.2013 at 7:30 am, the non-sending of the FIR on the same day coupled with the fact that the inquest report and the postmortem report did not contain the description of the case would create a doubt on the veracity of the prosecution story. It is submitted that the postmortem report would show that the Doctors have opined that the injuries have been caused within Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 15/41 12 hours. The postmortem has taken place at about 11:20 am on 16.06.2013 and if the prosecution version is believed that the occurrence had taken place at 06:00 am, then the injury was within six hours but the Doctor (PW-1) opined that the injury has been caused within 12 hours, therefore, there is a possibility that the murder had taken place during night hour itself but the family members of the deceased came to know about the dead body in the morning. They brought the dead body to Kumarkhand Police Station where fardbeyan of PW-4 was recorded and then it was directly sent to the Sadar Hospital, Madhepura for postmortem. Learned counsel submits that in course of evidence no document has been led to show that the deceased was brought to Kumarkhand PHC in alive condition. Neither any document of his treatment in the PHC, Kumarkhand has been exhibited nor any Doctor from the PHC, Kumarkhand has been examined.
24. Learned counsel points out that the Doctor (PW-1) has stated in his cross-examination that he had not written the numbers of case or S.D. entry number and date in his postmortem report. PW-1 has further stated in the cross- examination that the death of deceased was caused within twelve hours of his postmortem examination. He has stated that Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 16/41 he cannot state about the time of injuries but it was antemortem and hence caused before at least twelve hours of his postmortem examination. It is thus submitted that the alleged occurrence in which Matiur Rahman was killed had taken place sometime during the night hours and if the twelve hours is counted back, the postmortem having been taken place at about 11:20 pm, the occurrence would relate back in between 11-12 in night.
25. Learned counsel has relied upon a judgment of the Hon'ble Supreme Court in the case of Meharaj Singh vs State of U.P versus State of U.P. reported in (1994) 5 SCC 188 (paragraph '12') to submit that the prosecution case lacks credence in absence of the details of the case mentioned in the inquest report and the postmortem report and in similar circumstance, the Hon'ble Supreme Court has held that the absence of those details is indicative 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 lodged FIR. It is submitted that in this case the FIR has lost its value and authenticity. It is submitted that the I.O. (PW-13) has though admitted of seeing blood at the place of occurrence but it was Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 17/41 neither seized nor sent for chemical examination. Clothes of the deceased were also not seized and there is no proper mention of the details of his visiting the place of occurrence.
Submissions on behalf of the State
26. Mr. Ajay Mishra, learned Additional Public Prosecutor for the State has opposed the appeals and defended the judgment of the learned trial court. Learned counsel submits that the prosecution has proved the place of occurrence, date and time of the occurrence as also the manner of occurrence. It is submitted that even though no specific role has been assigned to the accused but the eye witnesses are wholly consistent. PW-4 (the informant), PW-2 who is the wife of the deceased, PW-5 (son of the deceased) and PW-3 (bhagina of the deceased) are the eye witnesses to the occurrence. They have named the nature of weapon and have stated about the manner of occurrence. The defence has not doubted the veracity of place of occurrence, body of the deceased and in totality the prosecution case is to be judged on the basis of the entire evidences and it cannot be thrown out by taking note of minor discrepancies. Learned counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of Gopal Singh and Others versus The State of Bihar reported in 1993 (1) PLJR 236. In this case, the Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 18/41 Hon'ble Supreme Court has observed that in a case of this nature, the totality of the circumstances as also broad probabilities of the case cannot be lost sight of.
Consideration
27. Having heard learned counsel for the appellants and learned Additional P.P. for the State as also on perusal of the records, this Court would first examine as to whether the contention of learned counsel for the appellants that in this case the FIR is ante-dated and/or anti-timed has a force or not. This Court has been shown that in this case the occurrence is said to have taken place on 16.06.2013 at 06:00 am (morning hour). The fardebyan of PW-4 was recorded at Kumarkhand PHC by S.I. R.N Pandit (not examined) on the same day at 06:45 am and the FIR has been lodged at 07:30 am. It is worth mentioning here that the I.O. (PW-13) has proved the fardebyan of PW-4 recorded by Sri R.N. Pandit as Exhibit '2'. He has stated in his examination-in-chief that on the basis of the fardebyan Kumarkhand P.S. Case No. 84 of 2013 was registered and he took charge of the investigation of the said case. In course of investigation, PW-13 visited Kumarkhand Hospital and from there the injured Matiur Rahman was referred to Sadar Hospital, Madhepura. It is, thus, evident from the deposition of PW-13 Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 19/41 that after registering the case, in course of investigation, he had visited Kumarkhand PHC from where the injured was referred to the Sadar Hospital. In such circumstance, the case number of the Kumarkhand Police Station would have been very much available on the record of the Sadar Hospital, Madhepura but when the inquest report of the deceased was prepared by the Sub-Inspector of Police, Madhepura and the postmortem report by the Doctor at Madhepura Hospital, non-mentioning of the case details and the inquest report and the postmortem report would create a doubt as to whether the case had been registered at the said time or not. The inquest report has been prepared at 09:30 am on 16.06.2013 without any proper description of injuries and without any P.S. Case Number and then postmortem report has also been prepared without any P.S. Case Number at 11:20 am at Sadar Hospital, Madhepura. This is to be kept in mind that in course of trial, the prosecution has not brought any evidence to show that the deceased Matiur Rahman had been brought to Kumarkhand PHC as injured and he was treated there by a Doctor. It is the case of the defence that the FIR was sent to the court of learned Chief Judicial Magistrate only on the next day i.e. 17.06.2013, therefore, a combined reading of the prosecution evidence on this count would show that when the Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 20/41 inquest report and postmortem report were being prepared, the prosecution story was still in an embryo state and had not been given any shape.
28. In the case of Meharaj Singh (supra), the first information report was lodged by father of the deceased on 03.11.1977 at about 12:45 pm at Police Station Daurala at a distance of four kilometers from the place of occurrence. The Sub-Inspector of Police reached the scene of occurrence at 02:00 pm and prepared the inquest report of the deceased. The dead body of the deceased was sent for postmortem examination who found a number of gunshot wounds on the deceased besides eight incised wounds. The trial court after appreciating the evidence on record opined that the FIR was anti-timed and the ocular testimony was contradicted by medical evidence. In this background, the Hon'ble Supreme Court found that according to the prosecution case, the Investigating Officer left for place of occurrence after the case had been registered at the Police Station but in the inquest report, which was prepared by him, the number of the FIR or the crime number had not been given. Even the heading of the case did not find mention in the inquest report. No explanation had been furnished for omission of these vital matters from the inquest report. A question was raised as to Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 21/41 whether it was because no FIR had actually been registered at the time as alleged by the prosecution and the Investigation Officer had reached the spot and after some consultations and deliberations it came into existence. The Hon'ble Supreme Court found that copy of the FIR was not even sent to the Medical Officer along with the inquest report and the dead body for postmortem. In this background, the relevant part of the observations in paragraph '12' of the judgment in case of Mehraj Singh are quoted hereunder for a ready reference:
"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 led 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 of an afterthought. On account of delay, the FIR not only gets 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 Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 22/41 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 CrPC, 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 indicative 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 lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR 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."
29. On the point of delay in sending the FIR to the learned Magistrate recently the Hon'ble Supreme Court in the case of Chotkau (supra) was considering a case in which FIR was registered on 08.03.2012 but was received by the court of Chief Judicial Magistrate on 13.03.2012. No question was put in cross-examination to the Investigating Officer about the delay but in ultimate analysis, the Hon'ble Supreme Court held that the delay of five days in transmitting FIR to the jurisdictional Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 23/41 court would be fatal to the prosecution. The Hon'ble Supreme Court took note of the above passage from the judgment in Meharaj Singh (supra) but while reiterating the above principles, the Hon'ble Supreme Court reminded a note of caution added by the court in Bhajan Singh @ Harbhajan Singh & Ors vs State of Haryana reported in (2011) 7 SCC
421. In this connection, paragraph '60' of the judgment in Chotkau (supra) is quoted hereunder for a ready reference:-
"60. While reiterating the above principles, a note of caution was also added by this Court in Bhajan Singh alias Harbhajan Singh and Others vs. State of Haryana3. Paragraphs 28 to 30 of the said decision read as follows:-
"28. Thus, from the above it is evident that the Criminal Procedure Code provides for internal and external checks: one of them being the receipt of a copy of the FIR by the Magistrate concerned. It serves the purpose that the FIR be not anti-timed or anti- dated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act under Section 159 Cr.P.C., if so required. Section 159 Cr.P.C. empowers the Magistrate to hold the investigation or preliminary enquiry of the offence either himself or through the Magistrate subordinate to him. This is designed to keep the Magistrate informed of the investigation so as to enable him to control investigation and, if necessary, to give appropriate
3. (2011) 7 SCC 421: (AIR 2011 SC 2552) Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 24/41 direction."
29. It is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante-dated or investigation is not fair and forthright. Every such delay is not fatal unless prejudice to the accused is shown. The expression "forthwith" mentioned therein does not mean that the prosecution is required to explain delay of every hour in sending the FIR to the Magistrate. In a given case, if number of dead andinjured persons is very high, delay in dispatching the report is natural. Of course, the same is to be sent within reasonable time in the prevalent circumstances.
30. However, unexplained inordinate delay in sending the copy of FIR to the Magistrate may affect the prosecution case adversely. An adverse inference may be drawn against the prosecution when there are circumstances from which an inference can be drawn that there were chances of manipulation in the FIR by falsely roping in the accused persons after due deliberations. Delay provides legitimate basis for suspicion of the FIR, as it affords sufficient time to the prosecution to introduce improvements and embellishments. Thus, a delay in dispatch of the FIR by itself is not a circumstance which can throw out the prosecution's case in its entirety, particularly when the prosecution furnishes a cogent explanation for the delay in dispatch of the report or prosecution case itself is proved by leading unimpeachable evidence."
30. The Hon'ble Supreme Court held that while every delay in forwarding the FIR may not necessarily be fatal to the case of the prosecution, courts may be duty bound to see the Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 25/41 effect of such delay on the investigation and even the creditworthiness of the investigation. In this regard, paragraphs '62' to '68' of judgment in the case of Chotkau (supra) would throw much light on this aspect of the law, hence, those are being reproduced hereunder for a ready reference:-
"62. Section 157(1) of the Code requires the officer-in-charge of the police station to send the FIR, "forthwith". The legal consequences of the delay on the part of the police in forwarding the FIR to the court was considered by this Court in Brahm Swaroop and Another v. State of Uttar Pradesh4. Incidentally Brahm Swaroop (supra) is also a case where there was a delay of five days in sending the report to the Magistrate (as in the present case). After taking note of several earlier decisions of this Court, this Court held in Brahm Swaroop in para 21 as follows :
"21. In the instant case, the defence did not put any question in this regard to the Investigating Officer, Raj Guru (PW 10), thus, no explanation was required to be furnished by him on this issue. Thus, the prosecution had not been asked to explain the delay in sending the special report. More so, the submission made by Shri Tulsi that the FIR was ante-timed cannot be accepted in view of the evidence available on record which goes to show that the FIR had been lodged promptly within 20 minutes of the incident as the
4. (2011) 6 SCC 288 : (AIR 2011 SC 280) Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 26/41 police station was only 1 km away from the place of occurrence and names of all the accused had been mentioned in the FIR."
63. To come to the above conclusion, reliance was placed upon a decision of a three- Judge Bench in Balram Singh and Another v.
State of Punjab5.In Balram Singh (supra), a three- member Bench of this Court rejected the contention with regard to the delay in transmitting the FIR to the Magistrate, on the ground that "while considering the complaint in regard to the delay in the FIR reaching the jurisdictional Magistrate, we will have to also bear in mind the creditworthiness of the ocular evidence adduced by the prosecution and if we find that such ocular evidence is worthy of acceptance, the element of delay in registering a complaint or sending the same to the jurisdictional Magistrate by itself would not weaken the prosecution case."
64. In State of Rajasthan v. Daud Khan 6, this Court referred to Brahm Swaroop and interpreted the word "forthwith" appearing in Section 157(1) of the Code, as follows:
"26. ... The purpose of the "forthwith"
communication of a copy of the FIR to the Magistrate is to check the possibility of its manipulation. Therefore, a delay in transmitting the special report to the Magistrate is linked to the lodging of the FIR. If there is no delay in lodging
5. (2003) 11 SCC 286: (AIR 2003 SC 2213)
6. (2016) 2 SCC 607: (2016 Cri LJ 165 (SC)) Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 27/41 an FIR, then any delay in communicating the special report to the Magistrate would really be of little consequence, since manipulation of the FIR would then get ruled out. Nevertheless, the prosecution should explain the delay in transmitting the special report to the Magistrate. However, if no question is put to the investigating officer concerning the delay, the prosecution is under no obligation to give an explanation. There is no universal rule that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable. In other words, the facts and circumstances of a case are important for a decision in this regard."
65. Therefore, the learned Additional Advocate General for the State may be right, in theory, that a delay in transmission of the FIR to the court, may not, per se, be fatal, without anything more. But in the case on hand, the delay was not small. The FIR said to have been registered on 8-3-2012 was received by the Court of the Chief Judicial Magistrate on 13-3-2012. It is true that no question was put in cross-
examination to the investigating officer about this delay.
66. But we have found that the evidence of PWs 1 to 3 is untrustworthy, particularly on the question of the origin and genesis of the first information report. Therefore the inordinate delay in the FIR reaching the jurisdictional court assumes significance. We agree that the word "forthwith" in Section 157(1) of the Code is to be Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 28/41 understood in the context of the given facts and circumstances of each case and a straitjacket formula cannot be applied in all cases. But where ocular evidence is found to be unreliable and thus unacceptable, a long delay has to be taken note of by the court. The mandate of Section 157(1) of the Code being clear, the prosecution is expected to place on record the basic foundational facts, such as, the officer who took the first information report to the jurisdictional court, the authority which directed such a course of action and the mode by which it was complied. Explaining the delay is a different aspect than placing the material in compliance of the Code.
67. In the present case, it is not even known as to who took the first information report from PW 6 or PW 4 and submitted before the jurisdictional court. Neither PW 4 nor PW 6 spoke about the person who took the FIR to the court. They did not say that they took it to the court. It is not a case of mere delay in sending the first information report, but one involving the contradictory evidence by the prosecution witnesses on the manner in which the first information report is written.
68. On the question of compliance of Section 157(1) along with logical reasoning for doing so, the following passage from the decision in Jafarudheen and Others v. State of Kerala7 may be usefully quoted as under :
7. 2022 SCC OnLine SC 495: (AIR 2022 SC 3627) Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 29/41 "26. The jurisdictional Magistrate plays a pivotal role during the investigation process. It is meant to make the investigation just and fair. The investigating officer is to keep the Magistrate in the loop of his ongoing investigation. The object is to avoid a possible foul play. The Magistrate has a role to play under Section 159 CrPC.
27. The first information report in a criminal case starts the process of investigation by letting the criminal law into motion. It is certainly a vital and valuable aspect of evidence to corroborate the oral evidence. Therefore, it is imperative that such an information is expected to reach the jurisdictional Magistrate at the earliest point of time to avoid any possible ante-dating or ante-timing leading to the insertion of materials meant to convict the accused contrary to the truth and on account of such a delay may also not only get bereft of the advantage of spontaneity, there is also a danger creeping in by the introduction of a coloured version, exaggerated account or concocted story as a result of deliberation and consultation. However, a mere delay by itself cannot be a sole factor in rejecting the prosecution's case arrived at after due investigation. Ultimately, it is for the court concerned to take a call. Such a view is expected to be taken after considering the relevant materials."
Therefore, we hold that the delay of 5 days in transmitting the FIR to be jurisdictional court, especially in the facts and circumstances of this Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 30/41 case was fatal."
31. Keeping in view the aforesaid submissions of learned counsel for the parties with regard to the delay in sending the FIR to the court of learned Chief Judicial Magistrate, Madhepura, this Court would examine the trustworthiness of the prosecution witnesses for a while.
32. This Court finds from the prosecution evidences that the place of occurrence is said to be besides a grocery shop of Debu Shah (PW-11). PW-11 has been declared hostile. He has stated that he had not seen the occurrence and the occurrence had taken place besides/in the neighbourhood of his shop. Police had not investigated him. Likewise PW-7, PW-9, PW-10 and PW-12 are the hostile witnesses. These witnesses have stated that they had not seen the occurrence and they were not investigated by the Police. PW-7 heard the hulla and he is mere a hearsay witness who has been declared hostile. PW-6 and PW- 8 have also stated that they have not seen the occurrence. Thus, PW-6 to PW-12 are either the hostile witnesses or have stated that they had not seen the occurrence.
33. PW-4 is the father of the deceased who lodged the fardebyan (Exhibit '2'). In his fardebyan, he has not stated that he had seen the occurrence. He has made a general statement about the seven named accused persons alleging that they had Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 31/41 killed his son after catching hold of him by dabia and farsa. In his fardebyan, he has stated that the cause of occurrence is the ongoing land dispute. He has neither claimed himself as an eyewitness nor has named any other family member as an eyewitness to the occurrence. He has stated in his fardebyan that on hearing hulla, all persons from the village came there but in course of trial no independent witness has been examined by the prosecution.
34. In course of trial, PW-4 has stated that his grandson Shahnawaz had also gone with his deceased son to the shop of Debu Shah but the I.O. (PW-13) has specifically stated in his cross-examination that PW-4 had not said to him about the presence of Shahnawaz (PW-5) at the place of occurrence with the deceased. Evidences are on the record that at the time of deposition, PW-5 disclosed his age as eleven years, therefore, at the time of occurrence, he was eight years old and he is a child witness. A perusal of the evidence of the child witness (PW-5) would show that before recording his evidence, the learned trial court has not at all examined the competence of this witness. No question was put to him and the court has not recorded its satisfaction with regard to the competence of this witness. In case of P. Ramesh (supra), the Hon'ble Supreme Court has Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 32/41 discussed the previous case laws on the subject in paragraph '14' to '16' which are being reproduced hereunder for a ready reference:-
"14. A child has to be a competent witness first, only then is her/his statement admissible. The rule was laid down in a decision of the US Supreme Court in Wheeler v United States6, wherein it was held thus: (SCC OnLine US SC para
5) "5. ... While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency.
This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous..."
(emphasis supplied)
15. In Ratansinh Dalsukhbhai Nayak v. State of Gujarat 7, this Court held thus: (SCC pp.67-68, para 7) "7. ... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of
6. 1895 SCC OnLine US CS 220 : 40 L Ed 244 : 159 US 523 (1895)
7. (2004) 1 SCC 64 : 2004 SCC (Cri) 7. Subsequently, relied upon in Nivrutti Pandurang Kokate v. State of Maharashtra, (2008) 12 SCC 565 : (2009) 1 SCC (Cri) 454 Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 33/41 the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." (emphasis supplied)
16. In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at the liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. 8 A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. 9 If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined."
8. Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64 : 2004 SCC (Cri) 7
9. Sarkar, Law of Evidence, 19th Edn., Vol. 2, Lexis Nexis, p. 2678 citing Director of Public Prosecutions v. M, 1998 QB 913 : (1998) 2 WLR 604 : (1997) 2 All ER 749 (QBD) Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 34/41
35. As regards, the power of the High Court in an appeal filed against conviction under Section 374 Cr.P.C., the Hon'ble Supreme Court has discussed Section 386 Cr.P.C. which defines the powers of the appellate court while disposing of an appeal against an order of conviction or acquittal. It has been held that the power under this Section is not unlimited. This provision is to be taken as giving the power to do only that which the lower court could and should have done in a criminal case. Paragraph '19', '20' and '21' as under which are also reproduced for a ready reference:-
"19. A three-Judge Bench decision of this Court in Mohd. Hussain v. State (NCT of Delhi) 12 while dealing with the powers of the appellate court to order a retrial under Section 386(b) CrPC, held thus: (SCC p. 428, para 41) "41. The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is
12. (2012) 9 SCC 408 : (2012) 3 SCC (Cri) 1139 Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 35/41 not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no straitjacket formula can be formulated but the appellate court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked."
20. A similar position was adopted by this Court in Ajay Kumar Ghoshal v. State of Bihar13, where it was held thus: (SCC p. 702, para 11) "11. Though the word "retrial" is used under Section 386(b)(i) CrPC, the powers conferred by this clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned in failure of justice. The circumstances that should exist for warranting a retrial must be such that where the trial was undertaken by the court having no jurisdiction, or trial was vitiated by serious illegality or irregularity on account of the misconception of nature of proceedings. An order for retrial may be passed in cases where the original trial has not been satisfactory for some particular reasons such as wrong admission or wrong rejection of evidences or the court refused to hear certain witnesses who were supposed to be heard." (emphasis supplied)
21. The power of an appellate court to order a retrial on the limited point of re-recording statements of witnesses
13. (2017) 12 SCC 699 : (2017) 4 SCC (Cri) 458 Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 36/41 was recently discussed in Atma Ram v State of Rajasthan14, where the trial court had convicted the accused persons of the offences under Sections 302, 307, 452, 447, 323, 147, 148 and 149 IPC and sentenced them to death. During the trial, the court had recorded the evidence of twelve witnesses in absence of the accused persons. In an appeal against conviction preferred by the accused persons, the High Court 15 exercised its powers under Section 386(b) CrPC to quash and set aside the judgment of the trial court and remanded the matter back to trial court to the extent of recording statements of the twelve witnesses afresh after securing presence of the accused in the court. The High Court held15 in the following terms: (Aatma Ram case15, SCC OnLine Raj para 19) "19. In view of the discussion made hereinabove and looking to the glaring facts of the case at hand, we feel that in order to do complete justice to the accused as well as to the victims, the entire case cannot be thrown out by holding the proceedings to be vitiated on account of the mistakes committed by the trial Judge or the prison authorities concerned. A fresh trial/de-novo has to be ordered by directing the trial court to lawfully re-record statements of the witnesses indicated above whose evidence was recorded in the first round without ensuring presence of the accused in the court."
The accused persons preferred a special leave petition before this Court, challenging the High Court's order of a de-novo trial for re-recording of statements of witnesses. Affirming the view taken by the High Court, this Court held thus: (Atma Ram case14, SCC pp. 499- 500, para 22)
14. (2019) 20 SCC 481
15. State v. Aatma Ram, 2018 SCC OnLine Raj 2509 : (2019) 1 RLW 135 Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 37/41 "22. ... Section 386 then enumerates powers of the appellate court which inter alia includes the power to "reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate court or committed for trial". The powers of appellate court are equally wide. The High Court in the present case was exercising powers both under Chapters XXVIII and XXIX of the Code. If the power can go to the extent of ordering a complete retrial, the exercise of power to a lesser extent, namely, ordering de novo examination of twelve witnesses with further directions as the High Court has imposed in the present matter, was certainly within the powers of the High Court. There is, thus, no infraction or jurisdictional error on the part of the High Court.
"25. ... If there was an infraction, which otherwise does not vitiate the trial by itself, the attempt must be to remedy the situation to the extent possible, so that the interests of the accused as well as societal interest are adequately safeguarded. The very same witnesses were directed to be de novo examined which would ensure that the interest of the prosecution is subserved and at the same time the accused will have every right and opportunity to watch the witnesses deposing against them, watch their demeanor and instruct their counsel properly so that said witnesses can be effectively cross-examined. In the process, the interest of the accused would also stand protected. On the other hand, if we were to accept the submission that the proceedings stood vitiated and, therefore, the High Court was powerless to order de novo examination of the witnesses concerned, it would result in great miscarriage of Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 38/41 justice. The persons who are accused of committing four murders would not effectively be tried. The evidence against them would not be read for a technical infraction resulting in great miscarriage. Viewed thus, the order and directions passed by the High Court completely ensure that a fair procedure is adopted and the depositions of the witnesses, after due distillation from their cross-examination can be read in evidence." (emphasis supplied)
36. Recently in the case of Pradeep (supra) once again, the Hon'ble Supreme Court has discussed the case laws and having found that the evidence of PW-1, who was a child witness, is not being supported or corroborated and there being possibility of the witness being tutored, held that it will not be safe to base the conviction only on the testimony of the PW-1 which does not inspire confidence.
37. In the present case, the very presence of PW-5 with the deceased at the time of occurrence is highly doubtful.
His presence has neither been disclosed in the fardbeyan of PW-
4 nor he disclosed this to the I.O. (PW-13) in course of his further statement. In this regard, the evidence of the I.O. (PW-
13) have been taken note of hereinabove. This Court is therefore of the considered opinion that for all these reasons the evidence of child witness (PW-5) is not reliable. It is wholly unreliable.
38. This Court further finds that the presence of Md. Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 39/41 Ashfaque (PW-3), who is bhagina of the deceased, is equally doubtful. This witness has not stated as to who told him about the occurrence. He has not shown his natural conduct when he reached the place of occurrence. He did not try to protect the deceased. This witness has not named the persons from whom he heard the hulla about the assault upon Matiur Rahman (deceased). The I.O. (PW-13) has stated in his cross examination that in his fardbeyan and further statement PW-4 had not stated about Ashfaque (PW-3).
39. In the totality of the prosecution evidences and the materials on the record, this Court is of the opinion that it is a blind case of murder. The prosecution witnesses on whose evidence the learned trial court has based the conviction of the appellants are closely related and interested witnesses. There is a prior land disputed between the parties. There is no independent witness in this case and the presence of the informant (PW-4), the wife (PW-2), child witness (PW-5) and the sister's son of the deceased (PW-3) as an eyewitness to the occurrence have been shown by the prosecution at a belated stage only. In the fardbeyan (Exhibit '2'), the informant has not named any eyewitness to the occurrence. The distance between place of occurrence and house of the deceased is said to be half kilometer Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 40/41 and only after hearing the hulla, the family members witnesses rushed to the place of occurrence. The informant has gone on to say in his cross-examination that the people came after murder. The body was taken out from a ditch and said to have been taken to Kumarkhand PHC but neither any medical report has been exhibited nor any Doctor from the Kumarkhand PHC has been examined by the prosecution.
40. In the totality of the circumstances when the effect of non-mentioning of the crime number/case number with date and time in the inquest report and the postmortem report are examined, it would create doubt as to whether the FIR had been registered on 16.06.2013 at 07:30 am. If the FIR had been registered then why the same was not made available to the concerned police officer who had prepared the inquest report and to the Sadar Hospital, Madhepura where the postmortem was conducted. It would prove fatal to the prosecution.
41. In the opinion of this Court, the prosecution has failed to prove its case beyond the shadow of reasonable doubts. The appellants have made out a case for interference by way of acquittal giving them benefit of doubt.
42. In result, the impugned judgment and order are set aside. The appeal is allowed. The appellant no.1 is said to be on Patna High Court CR. APP (DB) No.905 of 2018 dt.29-03-2024 41/41 bail, he is discharged from the liability of his bail bonds. The appellant no.2 shall be released forthwith, if not wanted in any other case.
(Rajeev Ranjan Prasad, J) (Jitendra Kumar, J) Rishi/-
AFR/NAFR AFR CAV DATE Uploading Date 06.04.2024 Transmission Date 06.04.2024