Patna High Court
Md. Jabbar 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.977 of 2018
Arising Out of PS. Case No.-84 Year-2013 Thana- KUMAR KHAND District- Madhepura
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Rasul Miya S/o Late Fida Miya, R/o Vill-Jaduapatti, P.S.- Kumarkhand,
District- Madhepura.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
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with
CRIMINAL APPEAL (DB) No. 1011 of 2018
Arising Out of PS. Case No.-84 Year-2013 Thana- KUMAR KHAND District- Madhepura
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Md. Jabbar S/o Late Makhbul, R/o Vill-Yaduapatti, P.S.-Kumarkhand,
District- Madhepura.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellant/s : Mr. Rajendra Narayan, Sr. Advocate
Ms. Anju Narain, Advocate
Mr. Shashwat Upmanyu, Advocate
Mr. Manoj Kumar, Advocate
Ms. Pooja Prasad, Advocate
Mr. Pranav Kumar, 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
These two appeals are arising out of the judgment of
conviction dated 29.06.2018 and the order of sentence dated
06.07.2018passed by learned Additional District and Sessions Judge-II, Madhepura (hereinafter referred to as the 'learned trial court') in Sessions Trial No. 29A/2014/C.I.S.-62/2015 in Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 2/36 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 the appellants guilty of the offences under Sections 147, 148 and 302/149 of the Indian Penal Code (in short 'IPC') and by the impugned order of sentence, the appellants have been ordered to suffer life imprisonment for the offence punishable under Sections 302/149 IPC, they have also been ordered to pay a fine of Rs. 1 lakh each. The learned trial court has further imposed a sentence of two years simple imprisonment and Rs. 1,000/- as fine for the offence under Section 147 IPC and three years imprisonment with a fine of Rs. 2,000/- for the offence under Section 148 IPC. 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-11), who is the father of the deceased. In his Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 3/36 fardbeyan recorded by R. N. Pandit, S.I. (Sub-Inspector) of Kumarkhand Police Station in the district of Madhepura on 16.06.2013 at 6:45 am at Primary Health Centre (P.H.C.), Kumarkhand, the informant (PW-11) 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 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 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 4/36 Rahman with an intention to kill. The fardbeyan (Exhibit '1') 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 '1'. After investigation, Police submitted two charge-sheets which have been marked as Exhibit '3' and '3/1' respectively. Initially, the Charge-sheet No. 147 of 2013 dated 29.09.2013 was filed only against accused (i) Md. Jamal Miya and (ii) Md. Dabir and the investigation was kept pending against (i) Md. Akbar Miya, (ii) Md. Azad Miya, (iii) Md. Nazul Miya, (iv) Md. Saddam and (v) Bipin Sah. The learned Magistrate took cognizance of the offences under Sections 147, 148, 149, 323, 324, 307, 302 and 120B IPC. Since the offences under Sections 302 and 307 were triable by the court of Sessions, the learned Magistrate took cognizance and committed the records to the court of Sessions. Later on, Charge-sheet No. 120 of 2014 was filed against one of the accused namely, Md. Jabbar. In his case, the learned A.C.J.M. took cognizance of the offences under Sections 147, 148, 149, 323, 324, 307, 302 and 120B IPC vide order dated 16.09.2014 and committed the records to the court of Sessions. Another Charge-sheet bearing No. 194 of 2014 dated 23.12.2014 was submitted against Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 5/36 accused Rasul Miya and the learned Magistrate took cognizance of the offences as stated above, vide order dated 23.01.2015 and committed the records to the court of Sessions.
4. Charges were framed against these two appellants under Sections 147, 148, 302/149 and 120B, IPC. The charges were explained to them, they pleaded not guilty and claimed to be tried. Since the appellants claimed to be tried, they have been proceeded against in Sessions Trial No. 29A/2014 in the court of learned, Additional District and Sessions, Judge-II.
5. The prosecution examined as many as fourteen witnesses and on behalf of the prosecution, the following documents were marked Exhibits:-
(i) Exhibit '1' - fardbeyan;
(ii) Exhibit '2' - Inquest Report;
(iii) Exhibit '3' - Charge-sheet of Md. Jabbar;
(iv) Exhibit '3/1' Charge-sheet dated 23.12.2014; and
(v) Exhibit '4' - Postmortem Report.
6. After examination of witnesses on behalf of the prosecution, the accused-appellants were given an opportunity to make statement under Section 313 of the Code of Criminal Procedure (in short (Cr.P.C.). The accused-appellants pleaded innocence. No oral or documentary evidence was produced on Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 6/36 behalf of the defence.
Findings of the Trial Court
7. The learned trial court, having examined the evidences on behalf of the prosecution, came to a conclusion that Debu Shah (PW-1), Dukhiya Devi (PW-3), Abhinandan Yadav (PW-4), Sambhu Mandal (PW-5) and Hasaruddin (PW-7) have stated about the date, time and place of occurrence. These witnesses heard about the killing of the deceased by the accused persons at the shop of Debu Shah. The Investigating Officer (PW-8), namely, Anuj Kumar Singh had supported that these witnesses had partially and indirectly supported the occurrence. The learned trial court took a view that the statement of the I.O. (PW-8) that these witnesses had supported the prosecution case in course of their statements under Section 161 Cr.P.C., is believable.
8. 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 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 7/36 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 299 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.
9. The learned trial court has further held that Shahnaj Khatun, who is wife of the deceased (PW-9), Shahnawaz Alam @ Dilkhush, who is son of the deceased (PW-10), Md. Atabul, who is the informant (PW-11) and Ashfaq, who is the sister's son of the deceased (PW-12) 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. Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 8/36
10. 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.
11. 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 dispute between the parties. It is for these reasons that the accused persons had killed him.
Submissions on behalf of the appellants
12. The learned Senior 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-9, PW-10, PW-11 and PW-12. It is submitted that from a plain reading of the fardbeyan of the informant (PW-11) 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 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 9/36 Debu Shah. PW-11 has not claimed that he had personally seen the occurrence. He has also not stated as to who are the eyewitnesses. PW-11 has not stated about the presence of Shahnawaz @ Dilkhush (PW-10) who is a child witness. His presence has been disclosed only in course of investigation.
13. Learned Senior counsel for the appellants would submit that the I.O. (PW-8) 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 that in between the place of occurrence and the house of the deceased, as per the prosecution evidences, about 10-12 houses are also situated. In such circumstance, it is not believable that a hulla of marpit could have been heard by PW-11 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-9), his son (PW-10) and bhagina (PW-12).
14. Learned Senior counsel submits that there are many contradictions in the statement of PW-11. In course of evidence of the I.O. (PW-8), it transpired that PW-11 had not stated before the Police that his grandson (PW-10) had Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 10/36 accompanied his deceased son to the shop. PW-11 made false statement in his cross-examination that he had got it written in the FIR, whereas the fact is that PW-11 had not stated about presence of his grandson (PW-10) with the deceased in the fardbeyan. In his cross-examination, PW-11, having realized that the defence may prove a case of false implication because of prior enmity, made a false statement that there is no land dispute with the accused which would contradict his own earlier version in the fardbeyan.
15. Learned Senior counsel further submits that PW-9, who is the wife of the deceased, is not an eyewitness and it may be found from her deposition that she has stated that she heard about her husband being assaulted by some persons whereupon she went to the grocery shop of Debu Shah with her father-in- law (PW-11), mother-in-law (not examined) and bhagina (PW-
12). It is submitted that PW-9 claims to have seen the occurrence after reaching the shop of Debu Shah (PW-1). Along with her, her father-in-law (PW-11), mother-in-law (not examined) and bhagina (PW-12) were present but when the PW-11 made his fardbeyan at 6:45 am at the PHC at Kumarkhand, he did not claim that he had seen the occurrence and at the same time he did not name PW-9, PW-10 and PW-12 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 11/36 as eyewitnesses to the occurrence.
16. Learned Senior counsel further submits that in course of her cross-examination, PW-9 has stated that she had been standing at a distance of 2-3 lagga from the place of occurrence but the conduct of this witness is not natural. She, being wife of the deceased, did not try to save him from the assault. She has stated that on hulla, the accused persons fled away but she has not named any independent witness from the village who had seen the occurrence.
17. Learned Senior counsel for the appellants submits that PW-10 was hardly seven years old on the alleged date of occurrence, he is a tutored child witness. In his evidence, PW-10 claimed that he was present with his father at the grocery shop of Debu Shah but the I.O. (PW-8) has stated in his cross- examination that Dilkhush (PW-10) had not stated to him that he had gone along with his father to the shop of Debu Shah. Thus, learned Senior counsel submits that neither PW-11 nor PW-10 had made statement before the I.O. (PW-8) that PW-10 had gone to the shop of Debu Shah with his father (the deceased). The learned trial court has, therefore, completely erred in appreciation of the prosecution evidences and has wrongly concluded that PW-10 was at the place of occurrence right from Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 12/36 beginning.
18. Learned Senior counsel further submits that Debu Shah (PW-1) has deposed that he had not seen the occurrence. He has also stated that Police had not inquired from him. This witness has been declared hostile. It is submitted that apart from PW-1, the other witnesses, namely, Ali Hussain (PW-2), Dukhiya Devi (PW-3), Shambhu Mandal (PW-5) and Md. Hasaruddin (PW-7) have been declared hostile and there is nothing in the evidence of the hostile witnesses which may be taken to have supported the prosecution case. It is also submitted that Abhinandan Yadav (PW-4) and Ramsharan Shah (PW-6) are though not hostile witnesses but they have clearly stated that they had not seen the occurrence.
19. Learned Senior counsel for the appellants has submitted that in course of trial no independent witness has been examined, though it is stated that the villagers had assembled at the place of occurrence. The independent witnesses, who were investigated, as per I.O.'s version, have not been examined in course of trial.
20. 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, Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 13/36 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.
21. It is submitted that the postmortem report would show that the Doctors have opined that the injuries have been caused within 12 hours. The postmortem has taken place at about 11:20 am on 16.06.2013 and if the prosecution version is believed then the occurrence had taken place at 06:00 am, therefore, the injury was within six hours but the Doctor (PW-
14) 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 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 14/36 brought the dead body to Kumarkhand Police Station where fardbeyan of PW-11 was recorded and then it was directly sent to the Sadar Hospital, Madhepura for postmortem. Learned Senior 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.
22. Learned Senior 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-8) has though Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 15/36 admitted of seeing blood at the place of occurrence but it was 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
23. 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- 11 (the informant), PW-9 who is the wife of the deceased, PW- 10 (son of the deceased) and PW-12 (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 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 16/36 the State of Bihar reported in 1993 (1) PLJR 236. In this case, the 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.
24. Learned Additional P.P. submits that so far as the delay in sending the FIR to the court of learned Chief Judicial Magistrate, Madhepura is concerned, the defence did not put any question to the I.O. on the point of delay. It is submitted that if the defence did not put any question to the I.O., a mere submission that there has been a delay in sending the FIR would not give rise to a presumption that there was a delay in lodging of the FIR and this cannot create any doubt on the veracity of the fardbeyan. Learned counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of Manga @ Man Singh vs State of Uttarakhand reported in (2013) 3 SCC 621 to submit that mere statement of the defence that there is some delay in forwarding the FIR to the court would not be fatal to the prosecution. In this case, the inquest report was prepared on 16.06.2013 at Sadar Hospital, Madhepura but the reason for non-mentioning of the case details in the inquest report and the postmortem report could have been provided to the I.O. (PW-8) if his attention would have been drawn towards this fact. It is Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 17/36 submitted that if the I.O. was not provided any opportunity to explain the delay, this Court would not assume that the defence has suffered any prejudice due to non-mentioning of the case details in the inquest report and the postmortem report. Learned counsel has also referred another judgment of the Hon'ble Supreme Court in the case of Gian Chand vs. The State of Haryana reported in 2013 4 PLJR 7 (SC). Mr. Mishra, learned counsel has further relied upon the judgment of the Hon'ble Supreme Court in the case of Chotkau vs. State of Uttar Pradesh reported in AIR 2022 SC 4688 to submit that there is no straight jacket formula that every delay in sending the FIR to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been anti- timed or anti-dated or investigation is not fair and forthright.
25. It is submitted that the trial court's judgment does not suffer from any infirmity hence no interference is required.
Consideration
26. Having heard learned Senior 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 Senior counsel for the appellants that in this case the FIR is ante-dated and/or anti- Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 18/36 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-11 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-8) has proved the fardebyan of PW-11 recorded by Sri R.N. Pandit as Exhibit '1'. 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-8 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-8 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 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 19/36 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 inquest report and postmortem report were being prepared, the prosecution story was still in an embryo state and had not been given any shape.
27. 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 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 20/36 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 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 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 21/36 judgment in case of Meharaj Singh (supra) 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 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 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 22/36 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."
28. 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 court would be fatal to the prosecution. The Hon'ble Supreme Court took note of the above passage from the judgment in Mehraj 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 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 23/36 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 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 and
3. (2011) 7 SCC 421: (AIR 2011 SC 2552) Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 24/36 injured 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."
29. 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 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 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 25/36 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 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
4. (2011) 6 SCC 288 : (AIR 2011 SC 280)
5. (2003) 11 SCC 286: (AIR 2003 SC 2213) Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 26/36 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 Khan6, 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 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
6. (2016) 2 SCC 607: (2016 Cri LJ 165 (SC)) Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 27/36 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 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 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 28/36 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 Kerala 7 may be usefully quoted as under :
"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
7. 2022 SCC OnLine SC 495: (AIR 2022 SC 3627) Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 29/36 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 case was fatal."
30. 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.
31. This Court finds from the prosecution evidences Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 30/36 that the place of occurrence is said to be a grocery shop of Debu Shah (PW-1). PW-1 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. Like PW-1, PW-2, PW-3, PW-5 and PW-7 are the hostile witnesses. These witnesses have stated that they had not seen the occurrence and they were not investigated by the Police. PW-5 heard the hulla and he is mere a hearsay witness who has been declared hostile. PW-4 and PW-6 have also stated that they have not seen the occurrence. Thus, PW-1 to PW-7 are either the hostile witnesses or have stated that they had not seen the occurrence.
32. PW-11 is the father of the deceased who lodged the fardebyan (Exhibit '1'). 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 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 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 31/36 came there but in course of trial no independent witness has been examined by the prosecution.
33. In course of trial, PW-11 has stated that his grandson Shahnawaz had also gone with his deceased son to the shop of Debu Shah but the I.O. (PW-8) has specifically stated in his cross-examination that PW-11 had not said to him about the presence of Shahnawaz (PW-10) at the place of occurrence with the deceased. Evidences are on the record that at the time of deposition, PW-10 disclosed his age as ten years, therefore, at the time of occurrence, he was seven years old and he is a child witness. In course of his cross-examination, this witness has stated that after murder, people came. The ditch was huge in length and breadth and it was deep up to waist. Matiur was taken out out the ditch and thereafter he was put on a tempo and taken away. In his cross-examination, therefore, this witness states that people came after murder. Surprisingly, this witness deviated from his statement in the fardebyan that there was a land dispute. In his cross-examination, he states that there was no land dispute with the accused persons. He had though not stated about the presence of his grandson with his deceased son at the time of occurrence in his fardebyan but he claims in his cross-examination that he had recorded so in his fardebyan. The Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 32/36 I.O. (PW-8) has contradicted him saying that he had not stated that his grandson was with his deceased son at the time of occurrence. This Court is of the opinion that PW-11 is not an eyewitness and he has seen the dead body of Matiur Rahman (deceased) after murder and the people from the village also came when murder had already taken place and the dead body was in the ditch. Under what circumstances, the deceased was taken to the Kumarkhand PHC has been withheld by the prosecution as no medical document showing him in alive condition at Kumarkhan PHC has been brought in course of trial.
34. The another witness is the wife of the deceased who has been examined as PW-9. She has stated in her examination-in-chief that she heard hulla that some people have caught hold of her husband and assaulting him whereupon she rushed to the place of occurrence with her father-in-law, mother- in-law and bhaigna. PW-9 has not stated as to from whom she came to know about the occurrence and she has not stated that she heard that the appellants had caught hold of her husband and they were assaulting him. In order to project her as an eye witness, she claims that when she went to the place of occurrence, she found that the quarrel was going on and her Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 33/36 husband was being assaulted by the appellants and others. The conduct of this witness seems to be unnatural. She has stated that her husband was being assaulted all over of his body but she does not claim to have taken any effort to give him a protection by placing herself around his body. She has stated in her cross-examination that she heard that her husband was being assaulted and was standing at a distance of 2-3 lagga. She has stated that she told Police that her son was also with her husband at the time of occurrence. From the evidence of PW-9, it further appears that she is not an eyewitness to the occurrence and she has been introduced as an eyewitness with other family members only at a belated stage.
35. Similar is the position of PW-10, who is a child witness and Md. Ashfaq (PW-12), who is bhagina of the deceased. PW-12 has stated that he came to know that some people are assaulting Matiur Rahman at the shop of Debu Shah. This witness has not stated as to who told him about the occurrence and it is not a natural conduct of this witness that when he reached the place of occurrence and claims to have seen the appellants and others assaulting the deceased, he did not try to protect him. This witness claims that his statement was recorded by the Police and he had stated before Police that Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 34/36 he had gone to the place of occurrence that day but he had not stated before Police that his maternal uncle (the deceased) had gone to the shop of Debu Shah for purchases. In paragraph '7' of his cross-examination, he has stated that he had reached the place of occurrence on hearing hulla from the people but he did not remember the name of the person who had raised the hulla. He has stated that the person who was raising hulla was not taking name of the person as to who was assaulting his maternal uncle. Regarding presence of PW-12, when the I.O. (PW-8) was examined, he has stated in his cross-examination that in his fardebyan, PW-11 had not stated about Ashfaq (PW-12).
36. The postmortem report which has been proved as Exhibit '4' by PW-14 would show that the deceased had suffered multiple sharp margin wound and the Doctor had opined the cause of death being brain injuries caused by heavy and sharp substance and the time of death - within twelve hours.
37. 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 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 35/36 independent witness in this case and the presence of the informant (PW-11), the wife (PW-9), child witness (PW-10) and the sister's son of the deceased (PW-12) as an eyewitness to the occurrence have been shown by the prosecution at a belated stage only. In the fardbeyan (Exhibit '1'), 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 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.
38. 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 Patna High Court CR. APP (DB) No.977 of 2018 dt.29-03-2024 36/36 was conducted. It would prove fatal to the prosecution.
39. 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.
40. In result, the impugned judgment and order are set aside. These appeals are allowed. The appellants are on bail, hence, they are discharged from the liability of their bail bond.
(Rajeev Ranjan Prasad, J) (Jitendra Kumar, J) Rishi/Arvind-
AFR/NAFR CAV DATE Uploading Date 06.04.2024 Transmission Date 06.04.2024