Patna High Court
State Of Bihar vs Ramashankar Tiwari And Ors. on 20 November, 2000
Equivalent citations: 2001(1)BLJR95
Author: P.K. Deb
Bench: P.K. Deb, Shiva Kirti Singh
JUDGMENT P.K. Deb, J.
1. This appeal has been preferred against the judgment of acquittal dated 10.7.1987 passed by the then 4th additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 567 of 1978.
2. In total, ten accused-persons were made to face trial under the charges under Sections 302/307/149/379 of the Indian Penal Cod read with Section 27 of the Arms Act. Accused-respondents Rama Shankar Tiwary, Sidharth Tiwari, Rameshwar Chamar (Ram), Kailash Ram, Kanta Chaudhary, Ram Nath Singh, Kashi Ram, Jagarnath Tiwari, Kedar Tiwari and Sarju Tiwary were charged under Sections 302/149 of the Indian Penal Code for forming an unlawful assembly having a common object to commit murder of Kedar Roy, Tarkeshwar Pandey (P.W. 2) and Ashok Kumar Ghosh (P.W. 1). Kedar Tiwary was separately charged under Section 302 of the Indian Penal Code for committing murder of Kedar Roy. Again all the accused-persons have been charged under Sections 307/149 of the Indian Penal Code for attempting to cause death of Tarkeshwar Pandey (P.W. 2) and Ashok Kumar Ghosh (P.W. 1). They were also charged under Section 27 of the Arms Act. Accused Sarju Tiwary was further charged under Section 379 of the Indian Penal Code for commission of theft of a rifle from the possession of deceased Kedar Roy.
3. Prosecution case in brief is that both the parties were in inimical terms since before for which the deceased Kedar Roy being apprehensive of his life made application before the police and he was provided with an armed bodyguard in the name and style of Ashok Kumar Ghosh. On the fateful day, i.e., on 6.4.1978 between 7 a.m. to 7.30 a.m. Kedar Roy the deceased, cousin brother of informant Bramhanand Roy along with maternal uncle Tarkeshwar Pandey (P.W. 2) and his body-guard Ashok Kumar Ghosh (P.W. 1) went to watch the maize field belonging to the deceased wherein several persons named in the F.I.R. were busy in reaping crops for and on behalf of the deceased. Before leaving for the field, the deceased asked his causing, the informant, Bramhanand Roy, to keep watch over them for which when they started for the maize field the informant went upstairs on the roof of his house. According to the informant, when Kedar Roy along with Tarkeshwar and Ashok Kumar Ghosh reached near the ridge of grass field, the informant heard sound of three or four firing from the western side and the informant could guess and understood that his brother Kedar Roy fell down because of firing in the maize field. Then the informant saw of the coming of the accused-persons and surrounding Kedar Roy armed with rifle and guns and then accused Kedar Tiwary shot at Kedar Rai from his gun and the informant could further guess and understand that Kedar Roy fell down on receipt of gun-shot injury and died at the spot, and accused Sarju Tiwary took away rifle of Kedar Roy and then the accused-persons fled away towards south. The companions of the deceased Kedar Rai, namely, Tarkeshwar Pandey (P.W. 2) and Ashok Kumar Ghosh (P.W. 1) were also injured in the same incident and same running towards the house of the informant and then they were sent to nearby village Keerya and then they proceeded towards Dihara Police Station on a tractor. It was further mentioned in the F.I.R. lodged by Bramhanand Roy (P.W. 9) to the effect that the deceased Kedar Roy by having 12 Big or has of land in the village Monihari and harvesting of the wheat in the land was going on since early morning, i.e., 5 a.m. on 6.4.1978. Several persons of Mistri caste along with their family members were engaged for harvesting the field who had also witnessed the occurrence. The motive behind the incident was stated to the effect that about two years prior to the occurrence the father of the informant was killed by some Tiwary persons of village Jogyan and since then there was enmity between the parties and only to take grudge the accused-persons by forming an unlawful assembly had caused the occurrence. Formal F.I.R. was registered on the basis of the Fardbeyan made by P.W. 9 Bramhanand Roy on 6.4.1978 at about 12-15 p.m. and such Fardbeyan was recorded at village Manihari itself when Sub-Inspector of Dinara Police Station Sheo Ballabh Singh (P.W. 11) came there on the basis of an information received by him from the Chowkidar of the village to the effect that two persons have been killed in the village Manihari in the same transactions of occurrence at the same time and place. Such information given by the Chowkidar was recorded in the form of a Sarha report in the police station itself much prior to the alleged Fardbeyan being given by P.W. 9 Bramhanand Roy. It further appears that two case were registered out of the same incident one the present case against the accused-respondents and the other for the murder of Jagarnath Chamar against the prosecution party wherein the deceased Kedar Roy, informant Bramhanand Roy, the star witness of the prosecution P.W. 1 AShok Kumar Ghosh and P.W. 2 Tarkeshwar Pandey along with others have been made accused. In the present case also the deceased Jagarnath Chamar in the other case was made accused along with one Kesho Nonia but no charge-sheet was submitted against them as Jagarnath Chamar was dead and against Kesho Nonia no material was found. The same investigating officer (P.W. 11) had investigated both the cases. In the present case charge-sheet has been submitted as mentioned above but in the cross-case final form was submitted on the plea that the case was lodged on mistaken facts. It appears that the acceptance of the final form was not proper as no notice was given to the informant in the cross case but then a protest petition was filed but the same was also dismissed for non-prosecution. As such, it appears that the cross case of the same occurrence did not and could not see the stage of the trial.
4. Defence case in the present prosecution is of denial of the manner of occurrence rather from the trend of cross-examination, it could be understood that it was the prosecution party who were the aggressor and killed Jagarnath Chamar and then the present case has been filed with much embellishment at a later stage only to save the skin of the prosecution party from the wrath of punishment in the case of murder of Jagarnath Chamar. On the whole the defence case is that the occurrence has never been happened in the manner and way as narrated from the side of the prosecution. For and on behalf of the prosecution as many as 11 witnesses have been examined out of whom the main witnesses are P.W. 9 Bramhanand Roy, who is the informant in the case and the eye-witness as alleged. Two star witnesses who were at the place of occurrence and were said to be injured in the same occurrence being R.W. 1 Ashok Kumar Ghosh and P.W. 2 Tarkeshwar Pandey. Two doctors P.W. 5 Dr. Jagmohan Swamp and P.W. 10 Dr. Parmaditt Narain Sinha had caused autopsy and examination of injured persons. P.W. 11 Sheo Ballabh Singh, the investigating officer of this case who played a vital role not only in investigation of both the cases but also making a view that the other case is a false one and the present case is a true one. For and on behalf of the defence five witnesses have been examined. They have brought on record the factum of cross-case filed.
5. After scrutinising the evidence on record learned Court below has passed the impugned judgment by recording acquittal holding that the prosecution has failed to establish the guilt of the accused-persons as at every stage the prosecution party had failed to prove the manner and way the occurrence took place. The grounds of acquittal recorded by the learned Court blow are:-(1) The fardbeyan recorded and then F.I.R. lodged was on 6.4.1978 but the same was received at C.J.M.'s Courts after five days i.e. on 11.4.1978 and such delay has never been explained raising doubt about the veracity of the F.I.R. itself as there was scope of concoction and embellishment in view of the fact in the F.I.R. itself there was suppression of the murder of Jagarnath Chamar in the same incident which was informed by the village Chowkidar earlier to the F.I.R. lodged. (2) The prosecution party had completely suppressed the death of one of the accused party in the same occurrence and although an attempt was made during the course of trial to explain the same. It was only for the purpose of saving the skin creating doubt about the manner of occurrence as depicted by P.W. 1, 2 and 9 (3). There is-variation in the prosecution story as narrated in the Fardbeyan and as depicted during the course of trial. (4) P.Ws. 1 and 2 who are said to be the direct eyewitnesses and also injured in the same incident could not be believed as they were partisan witnesses and they depicted different story regarding the occurrence during the cause of trial when the story was otherwise in the F.I.R.
6. Before going into the merit of this appeal, it should be reiterated the principle regarding scrutiny of a judgment of acquittal, It is now the settled principle of law that if the reasonings and conclusions arrived at by the trial Court in recording the judgment of the acquittal are plausible inferences on materials on record the appellate Court shall not interfere with it even if on independent scrutiny of the materials on record there may be other inference also towards conviction meaning thereby that if there two inferences can be drawn from the materials on record and the inference deducted by the trial Court is also a reasonable deduction and not a perverse one then the appellate Court shall not interfere with the Judgment of acquittal. Now coming to the factual aspect of the case, it is found that there are only two direct eye-witnesses to the occurrence who are P.Ws. 1 and 2 in the case and it has also been proved from the side of the prosecution that they have been injured in the occurrence itself, and in normal course injured witnesses should be given such weight too on the principle that an injured person would not fall upon others leaving aside his assailants. Such principle is definitely true in normal and general cases but here in the present case the matter is not a normal or a simple one rather a complicated one. The evidence of these two witnesses had to be considered keeping in mind that there was suppression regarding the injury or the death of one of the accused-persons in the same incident. In the present case both Ashok Kumar Ghosh, bodyguard, of the deceased Kedar Roy, and Kedar Roy himself were armed with weapons and before going to the maize field they had kept Bramhanand Roy (P.W. 9) for watching so that they may not be attacked by their adverse party meaning thereby the accused party. When there are casualties on both sides in the same transactions of occurrence then it is required to be found out as to which party was the aggressor. In the present case, as per P.W. 9 who had submitted the fardbeyan as soon as the deceased and P.Ws. 1 and 2 reached near the ridge of the gram field he heard sounds of firing and he could guess that Kedar Roy had fallen down on receipt of gun-shot injury. Then, there is case that when Kedar Roy had fallen down on the maize field then the accused-persons had surrounded him and Kedar Tiwary had fired on him from the close range. But such prosecution case could not be tallied with the medical evidence because the external firearm injury on the person of the deceased did not show the symptoms of firing from the close range. In that way, Kedar Roy must have been shot at from a distance meaning thereby that when the sound of firing was heard by P.W. 9 and when none of the accused-persons were at the place of occurrence Kedar Roy received the gun-shot injury from a distance and on such injury he succumbed, so later part of the story of the prosecution party i.e. Kedar Roy and P.Ws. 1 and 2 were surrounded by the accused-persons became totally doubtful and the learned Court below has taken a reasonable and plausible view and inference to that effect. Moreover, at least P.W. 9 could not see as to who had shot at on Kedar Roy, the deceased. P.W. 1 in his evidence has stated that when they reached the place of occurrence then firing was made towards them from the Khand of Jagarnath and such firing was made from inside the wall through the wholes and also barrells were there over the wall and thus the assailants were not visible by any of the eye-witnesses, To explain the casualty of the accused-persons, P.W. 1 Ashok Kumar Ghosh for the first time in the trial Court has given a story to the effect that when he received gun-shot injury on his right hand he fired towards the khand from his rifle by the left hand meaning thereby by such firing some casualty might have been caused on the accused party. But this story has never been supported by any other witnesses. According to P.W. 9, soon after P.Ws. 1 and 2 were injured they ran to the informants house and from there they left towards the nearby village and from there by tractor they went to Dinara Police station. That part of the story has not been supported by P.Ws. 1 and 2. According to them, after receiving injury they went to nearby Koreya village and from there they went to Dinara Police Station. So it appears that at every stage prosecution party embellished and embroidered the story at their sweet will to fit in accusation against the accused party.
7. It is true that witnesses injured in the same occurrence should be ordinarily relied on as their presence at the place of occurrence remains unchallenged due to injuries on their persons and it is expected that the injured witnesses would not fall on others leaving aside their assailants. In that way, evidence of P.Ws. 1 and 2 should be given much weight too but this theory may not be applicable in the circumstances of each case. It could be found that P.W. 1 and 2 are the partisan witnesses. P.W. 3 happens to be maternal uncle of the deceased Kedar Roy while P.W. 1 was appointed body-guard of the deceased and he was also armed. Moreover, both these P.W. Nos. 1 and 2 were the named accused in the cross case and for that reason learned Court below has rightly scrutinized their evidence closely to find out grains from chart and ultimately arrived at, that, the manner and way they depicted about the occurrence was doubtful one in the circumstances as have been mentioned in the impugned judgment and also mentioned in the proceeding paragraphs. From the evidence of P.W. 1, it could be very well found that when the firing started towards them the none of the accused-persons were visible as they were behind the Khand of Jagarnath and this part also gets support from the evidence of P.W. 9 and also of P.W. 2. P.W. 9 stated that as soon as they reached near the ridge he heard the sounds of firing and at that time he could not see any of the assailants. The later story of P.W. 9 that they surrounded the prosecution parties and killed the deceased from close range could not be supported from the evidence of P.Ws. 1 and 2 So rightly the learned Sessions Judge has doubted the veracity of these two injured witnesses. Learned Government Counsel has relied on the judgment of the Apex Court as reported in 1996 SCC (Criminal) 96 Gurnam Singh and Anr. v. State of Punjab wherein it was held that even if the explanation on the injuries received by the accused-person's are being explained during the course of trial not being mentioned in F.I.R. cannot take away in the prosecution case if such injuries were found to have been caused in as defence of the prosecution parties. It is the submission that in the present case also although casualty on the accused side have been suppressed in the F.I.R. but the same has been explained by P.W. 1 in his evidence. On proper scrutiny of his evidence, we do not find that such explanation is really there from the side of P.W. 1 rather he only stated that against the unknown assailants he made firing towards them and what had happened to the accused party or the assailants party have not been stated. On the other hand, on the same breath Mr. Government Counsel has stated that there is possibility of casualty the accused side as not being in the signal of the same incident as the dead body of Jagarnath Chamar was found at a distance of 130 yards from the place of occurrence. If the place of occurrence is made to be the place where the dead body of Kedar Roy was found then the distance might be 130 yards but that is not so from the Khand and this Khand story is only an introduction during the course of trial and there is total suppression of this Khand story in the F.I.R. Here the question of explanation of injuries are not there. There are casualties of both the sides and casualties on the accused party had been totally suppressed although that fact was known to the investigating officer before filing of the present F.I.R. It is also astonishing to note that the investigating officer has filed final report in the cross case stating that the same was lodged on mistaken facts. We fail to understand what the investigating agency meant about the mistaken facts. In the same transaction two parsons were killed there was cross case and that has not been denied on the other side then where is the scope of mistaken facts is not known and in that way, the learned Sessions Judge had made the investigating officer in the category of partisan witness.
8. The F.I.R. in the present case has been filed long after the occurrence when already a third party uninterested with any of the parties to the case reported the police about the killing of two persons and on receipt of that information' of the Chowkidar, when the police started towards the place of occurrence then on the way he got the Fardbeyan recorded by P.W. and the same was after five hours of the occurrence while about two hours after the occurrence information was lodged by the third party i.e. Chowkidar. So there was scope of embellishment in the F.I.R. itself and that embellishment is there on the face of it when the F.I.R. itself is totally silent about the casualty on the other side and also the story depicted in the F.I.R. is in variation of the story revealed during the course of trial. Again the F.I.R. which was lodged on 6.4.1978 had reached th C.J.M's office on 11.4.1978. There is no explanation as to why such delay was there although it was mentioned that the F.I.R. was sent through special messenger. Non-explanation of delay in receipt of the F.I.R. in the Court raised eye-brow as there remains scope of embellishment and concoction. As per Section 157 of the Code of Criminal Procedure after amendment the word 'forthwith' casts duty on the investigating agency but it has got relevancy if it reaches the Court belatedly having no explanation of it. In the recent judgment of the apex Court, it has been held that if delay is there and the same remains unexplained then it casts a doubt regarding the timings of recording of the F.I.R. or Fardbeyan and becomes fatal to the prosecution story itself. Such delay may not be fatal in each and every case rather it depends on the circumstance of each case. A Division Bench of this Court held after discussion of all the judgments of the apex Court in this regard that the delay itself alone might not be fatal if it is not coupled with other circumstances. We also take the same view. In the present case, already there is reporting of cognizable offence by the village Chowkidar and there was a Sanha report to that effect and on the basis of that P.W. 11 proceeded towards the place of occurrence which means that Sanha report had made the ball of investigation in motion which fits in with all requisites of the F.I.R. That Sanha report has also been suppressed from the side of the prosecution although it has been stated that in the evidence of P.W. 11 he has revealed about the contents of the Sanha report wherein there was no mention of the names of the persons who were involved in the occurrence. Even if we take that evidence of P.W. 11 to be true regarding contents of the Sanha report but then also the fact remains that cognizable offence of two murders have been reported to the police and on the basis of that police started towards the place of occurrence and in that way, definitely, the present F.I.R. loses its importance and that may be construed to be a statement under Section 161 of the Code of Criminal Procedure and when such delay in reaching of the F.I.R. in the police station remained unexplained it casts more doubt about the veracity of the so-called F.I.R. Learned Court below has rightly doubted about the veracity of the F.I.R. in the impugned judgment in the circumstances of the present case.
9. On the face of the F.I.R., it appears that there were independent witnesses of the occurrence, namely, Mistri families who were engaged in reaping the grams from the field and their names have also been specifically mentioned in the F.I.R, itself but none of those witnesses have been examined from the side of the prosecution and no explanation has been given in withholding all these independent witnesses which creates more doubt about the truth of the story as revealed by the prosecution in the present case. When independent witnesses are available but they have been withheld without any explanation then it must be held as per the presumption available under Section 114 of the Evidence Act that if those witnesses would have been produced they would have given the real facts and for suppressing the real facts they have been motivatedly withheld.
10. Thus, on independent scrutiny of the materials on record, we also come to the same analogy as arrived at by the learned Court below that the prosecution case is highly doubtful and the benefit of doubt should go in favour of the accused-persons. The reasonings given by the learned Court below in arriving at the recording of acquittal are not only plausible but inferences drawn are the only influences which can be drawn from materials on record. There cannot be any other findings or inference a prudent man can arrive on the materials on record.
11. Thus, the appeal has got no force and hence, the same is rejected upholding the impugned judgment of acquittal.
Cases referred to by both the parties are enumerated below:
(1) 1994 Supplementary (2) SCC 372 Gulab Gain and ors. v. The State of Bihar and Ors. (2) 1999 SCC 9 Cri. 104 Sheikh Ishaque and Ors. v. State of Bihar. (3) 1995 2 PLJR (SC) 1 Paras Yadav and Ors. v. State of Bihar. (4) 1991 1 PLJR 325 Arjun Marik and Ors. v. State of Bihar.
Shiva Kirti Singh, J.
12. I agree.