CRIMINAL APPEAL (DB) NO. 461 OF 1988 ------------- Against the judgment of conviction and order of sentence dated 29.07.1988 passed by 2nd Additional District & Sessions Judge, Saran at Chapra, in Sessions Trial No. 171 of 1986/167 of 1986. ------------- 1. Harendra Rai, Son of Indradeo Rai. 2. Amla Sahni, Son of Jagdish Sahni. Both of Village- Darihara Chaturbhuj, P.S. Dariapur, District-Saran…………......Appellants. -Versus- The State of Bihar…………………………………….…….Respondent. -With- CRIMINAL APPEAL(DB) No. 465 of 1988. Nirmal Rai, Son of Sakaldip Rai, resident of Village- Belhar, P.S. Dariyapur, District-Saran………………………………..……Appellant. -Versus- The State of Bihar…………………………………………..Respondent. -With- CRIMINAL APPEAL(DB) NO. 468 OF 1988. Mundrika Rai, Son of Shri Bhuneshwar Rai, resident of village- Belhar, Police Station-Dariyapur, District- Saran(Bihar)…Appellant. -Versus- The State of Bihar………………………………………..…Respondent. ------------- For the Appellants: Mr. Anirudh Kumar Sinha, Advocate. (In all the aforesaid three appeals). For the Respondent: Ms. Shashi Bala Verma, A.P.P. (In all the aforesaid appeals). ------------- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH S.K.Sharma & D.K.Singh, J.J. Through the aforesaid three appeals, the four appellants have challenged the judgment of conviction and order of sentence dated 29.07.1988 passed by the learned 2nd Additional District and Sessions Judge, Saran, in Sessions Trial No. 171 of 1986/167 of 1986, whereby and whereunder the appellants were convicted under 2 Sections 302/34 and 458 of the Indian Penal Code and sentenced to undergo life imprisonment and rigorous imprisonment for seven years, respectively. The sentences were directed to run concurrently. However, the charges were also framed under Section 393 of the Indian Penal Code, but the learned Trial Court acquitted the appellants for the charge under Section 393 of the Indian Penal Code. It is necessary to trace the factual aspect of the case before taking into consideration the grounds of the appeals. 2. The prosecution case starts rolling with the fardbeyan of Rameshwar Mishra(not examined) recorded by S.I., Muniwar Pathak at Dariyapur on 04.06.1984 at 10.00 A.M. at village- Belhar. The case of the informant is that in the intervening night of 03/04.06.1984, at 12.00 P.M., alarm was raised by the mother of the deceased (P.W.2), with regard to thieves having entered the house, upon which Ashok Mishra(deceased) and the informant woke up. The informant was sleeping outside of a “Machan”(bamboo bed). Ashok Mishra (deceased) caught hold of one of the thieves from the back and started raising alarm, upon which all the four accused persons dragged Ashok Mishra to the door of Mohan Mishra. It is 3 alleged that Arun Mishra(P.W.1) hid himself in the Verandah of Mohan Mishra(not examined). The informant claims to have run towards the place of occurrence when he identified, with the help of torch light, the four accused persons, namely, Nirmal Rai, Mundrika Rai, Amla Sahani and Harendra Rai(all appellants) dragging Ashok Mishra and thereafter it is alleged that all the four accused persons killed the victim with some weapons. The motive, as alleged, was for stealing the he-goat of Ashok Mishra. It is also alleged that the accused persons tried to commit theft by removing the doors. They entered from northern side by cutting the „Thatti‟ (straw wall). It is claimed by the informant that the mother of the deceased (P.W.2) identified two accused as Nirmal Rai and Mundrika Rai and it is then alleged that the accused persons entered the house for committing theft of the he-goat but out of fear of being caught, they killed the victim Ashok Mishra. Raj Narayan Mishra(not examined since then) was made attesting witness to the fardbeyan. 3. On the basis of aforesaid fardbeyan, Dariapur P.S. Case No. 95 of 1984 dated 04.06.1984 was registered at 12.30 P.M. under 4 Sections 457 and 302 of the Indian Penal Code against four named accused. 4. The police after investigation, submitted charge sheet and subsequently cognizance was taken of the offence and the case was committed to the Court of Sessions on 22.08.1987, after which charges were framed under Sections 302/34,393 and 458 of the Indian Penal Code. 5. The prosecution in order to substantiate the charges, examined altogether 10 witnesses, of which P.W.1 (Arun Kumar Mishra) the cousin of the deceased and the nephew of the informant, and Nanda Devi (P.W.2), the mother of the deceased are the only two eye witnesses to the occurrence. P.W.3- Saryug Rai and P.W.9- Dineshwar Singh are the chaukidar and the police officer respectively, who brought the dead body to the Hajipur Sadar Hospital for post mortem examination. P.W.9 is also a witness with regard to handing over of the clothes and other articles by the Doctor. P.W.4-Jogendra Manjhi has been tendered, as he stated that his statement was not recorded by the police under Section 161 Cr. P.C. 5 P.W.5 Sachidanand Mishra is the witness to the seizure list of the blood stained Lathi and Naria. P.W. 7 is Birchand Patel, the doctor who conducted post mortem on the dead body of the deceased Ashok Mishra. P.W.8, Muniwar Pathak, is the Investigating Officer, who recorded the fardbeyan and registered the case and also conducted the investigation. P.W.10, Jahir Hussan is the constable of the S.P. office who has proved the Sanha diary entry. The defence has not examined any witness. 6. The learned Trial Court relying on the evidences of P. Ws. 1 and 2 convicted the appellants under Sections 302/34 and 458 of the Indian Penal Code, whereas acquitted the appellants under Section 393 of the Indian Penal Code. 7. Due to death of the informant (Rameshwar Mishra) and the only attesting witness to the fardbeyan, i.e., Raj Narayan Mishra, they have not been examined during trial. Hence, the prosecution has ultimately relied on the evidence of the P. Ws. 1 and 2, who happen to be 6 the cousin brother and mother of the deceased. 8. Now this court has to see whether the evidence of P. Ws. 1 and 2 proved the charges against the appellants beyond shadow of reasonable doubt. 9. Though the informant Rameshwar Mishra and the sole attesting witness Raj Narayan Mishra died prior to commencement of trial but the Investigating Officer (P.W. 8) has proved the fardbeyan. So far as the manner of occurrence is concerned, it is alleged by the informant in the fardbeyan that on alarm being raised by P.W.2(mother of the deceased), informant who was sleeping outside the house and his nephew Ashok Mishra( deceased) woke up. Ashok Mishra (deceased) caught hold of one of the accused from the back and started raising alarm. Then, the four accused persons dragged Ashok to the door of Mohan Mishra (not examined). The dragging was visualized by the informant with the aid of torch light. It is alleged that all the four accused persons assaulted the victim with some weapon. The F.I.R. does not specify the manner of assault. It is true that the F.I.R. is not an encyclopedia to include everything but F.I.R. should at least mention broad spectrum of prosecution case and non- 7 mentioning of the material and vital facts may affect the credibility of F.I.R., as has been held by the Apex Court in 2010 Cr. L. J. 433 para 16 which reads as follows:- “The High Court observed that the F.I.R. can not be an encyclopedia to contain all the details of history of the case. This approach of the High Court does not seem to be correct. The F.I.R. should be at least mention a broad story of the prosecution and not mentioning of material and vital facts may affect the credibility of the F.I.R.” 10. The occurrence admittedly took place at 12.00 P.M. in the intervening night of, 03/04.06.1984 whereas the fardbeyan was recorded after 10 hours at 10.00 A.M. on 04.06.1984. The evidence of doctor (P.W.7) suggests one substantial injury but non-disclosure of causing of the injury by any specific accused in the fardbeyan, creates doubt, which further gets confronted when the prosecution comes to rely on the evidence of P. Ws. 1 and 2, who are none else then the cousin and the mother of the deceased. 11. P.W.1-cousin brother of the deceased claims to have awakened on alarm being raised, while he was sleeping alongwith the victim. 8 P.W.1 saw the accused persons coming out from the house after opening the door, when Ashok(deceased) caught hold one of the accused Nirmal Rai. Thereafter, three accused persons assaulted Ashok Mishra with Lathi on which this witness went to the Verandah of Mohan Mishra(not examined) to conceal himself and in torch light he saw Nirmal Rai assaulting Ashok with dagger on left side of abdomen. The attention of this witness was drawn towards his statement under Section 161 Cr. P. C., where he did not specify the actual assault, which has further been clarified by the Investigating Officer(P.W.8), in paragraph no. 34 of his evidence, where he suggests that P.W.1 neither stated anything about the cot on which he was sleeping nor about the alarm raised by the victim nor about the assault inflicted by Lathi by three accused persons nor about catching hold of Nirmal Rai by the deceased and moreover, Nirmal Rai never named or conveyed or identified the accused persons in his cross-examination. Hence, the evidence of P.W.1 loses its credibility in view of evidence of the Investigating Officer which reflects that P.W.1 has developed his version during evidence with respect to what he stated before the police under Section 161 Cr. P. C. 9 The evidence of P.W.1 does not inspire confidence in view of the fact that he claims to have been sleeping with the victim, while the fardbeyan was recorded after 10 hours of the assault, then in such circumstance there was no reason for the informant or the attesting witness for not disclosing the name of Nirmal Rai or the manner of the occurrence as suggested by P.W.1 during enquiry. The claim of this P.W.1 of having concealed himself in the verandah of Mohan Mishra also becomes doubtful when P.W.1 himself admits that the vrandah of Mohan Mishra was open from three sides. Hence, the claim of P.W.1 of having hid himself in the verandah appears unreasonable. P.W.1 in paragraph no. 25 has admitted that he saw three assaults being made by Lathi to the victim, whereas, the post mortem report reflects only two injuries. The two injuries which are as follows:- 1. Abrasion ¾ “ X 1/3” in front of left shoulder. 2. Wound penetrating with sharp margins in front of left chest above left costal margins size 1¼”X 1/3” X deep to thoracic cavity directed upwards, inwards and backwards. The aforementioned injuries suggest 10 that the only vital injury is injury no.2 as injury no.1, is simple abrasion of marginal size which can not be considered to have been caused by virtue of repeated Lathi blows. Hence, the claim of P.W.1 being the eye witness further gets negated by medical opinion. 12. It is a settled principle of law that the medical evidence being opinionative in nature can not over-ride the ocular evidence but it is also a settled principle that when the medical evidence either completely negates the ocular manner of occurrence or creates serious doubt, then, the version recorded by the eye witness become doubtful. 13. In the present case, the medical evidence creates serious doubt about the manner of the occurrence as claimed by the prosecution. 14. So far as P.W.2(mother of the victim) is concerned, she has claimed to have awakened when the accused persons flashed the torch light, on which she raised alarm. The accused persons attempted to flee away from the front gate, when the deceased Ashok Mishra caught hold one of the accused on which the accused killed him with a dagger blow. Though, the accused have been specified to be as neighbours. P.W.2 claims to have seen the occurrence, but from her evidence 11 in paragraph no.3, it appears that the deceased received dagger blow near the right side of his door but this witness subsequently tried to improve her version by saying that the dagger blow was given at the door of Mohan Mishra. This claim of P.W.2 becomes suspicious in view of the fact that the fardbeyan was recorded after 10 hours of the occurrence but no hint was raised that the assault was made by neighbour. P.W.2 having stated a developed version, becomes apparent, when her attention was drawn to the statement made by her before the police and the evidence of P.W.8(I.O.) in paragraph no.35, where he clearly stated that P.W.2 never conveyed about assault with dagger by the accused persons. She only said that the accused persons killed his son. The Investigating Officer further clarified that P.W.4 stated that Nirmal Rai is one of the assailants. 15. P.W.2 has clearly stated about the assault made upon the victim by lathi. Hence, the evidence of P. Ws. 1 and 2 are not only inconsistent with each other but their evidences are also completely inconsistent to the prosecution case as was initiated through the fardbeyan and their statement under Section 161 Cr. P. C. Hence, on this score we do not find 12 the evidence of P. Ws. 1 and 2 to be reliable. 16. So far as the manner of the occurrence is concerned, there are two only witnesses who claimed to have seen the occurrence. Hence, it is difficult to hold that the prosecution has proved the manner of occurrence beyond the shadow of reasonable doubt. The medical evidence further negates the ocular version on the ground that the informant in the fardbeyan and P. Ws. 1 and 2 in the evidence have stated that the victim was dragged from his door to the door of Mohan Mishra but the doctor has not found any dragging injury to the victim. 17. So far the place of occurrence is concerned, the first part of the occurrence took place inside the house of P.W.2 when the accused entered by cutting „thatti‟(straw wall) from the northern side and on alarm being raised the accused persons escaped from the front door, where the deceased caught hold of one of the accused from the back and thereafter the victim was dragged to the door of Mohan Mishra. In paragraph no.5 of the evidence of P.W.8, it appears that the blood was found on the eastern Sahan (open area) of Mohan Mishra house‟s where the blood stained Lathi, blood stained earth and blood stained Naria were seized, but the 13 Investigating Officer has not found any dagger, at the door of P.W.3 to the actual place of occurrence where the blood was seized. Though the distance between the door of the deceased to the actual place of occurrence, where the blood was seized, has not been measured by the Investigating Officer during the investigation nor it has been mentioned during his evidence but P.W.2 in paragraph no. 19 has stated that the place where Ashok was lying was 12 „laggis‟ from the place of the occurrence, whereas P.W.5 in paragraph no.6 has given the distance as 2 ½ „laggis‟. Hence, it appears that the actual assault took place in front of open land of Mohan Mishra‟s house and nothing happened at the door of the deceased as claimed by P. Ws. 1 and 2. P. Ws. 1 & 2 have not said about the assault being taken in front portion of Mohan Mishra‟s land, rather they have deposed that the second part of occurrence took place at the right hand door of Mohan Mishra. Hence, due to these inconsistencies, the evidence of P. Ws. 1 and 2 do not specifically suggest the exact place of occurrence. P.W.2, in paragraph no. 18 has stated that when she came out from the house, she found Ashok in an injured condition which suggests that P.W.2 did not see the manner of 14 occurrence. 18. So far as identification of the accused persons is concerned, admittedly, the occurrence took place at 12 P.M. in the night but the informant has stated in his fardbeyan that he identified four persons in the torch light and the same was claimed by P.W.1, whereas P.W.2 suggests that she identified the accused persons when the accused persons were flashing their torch light but the evidence of P.W.8 in paragraph nos. 34 and 35 clearly suggests that identification of accused persons in torch light was not suggested by P. Ws. 1 and 2, nor any torch was seized when the Investigating Officer made investigation of the case. Since the prosecution has not brought anything on record with regard to any other source of identification hence, the claim of identification by P. Ws. 1 and 2 gets doubtful. 19. It is well settled principle that when eye witnesses are available to prove the prosecution case, then motive takes a back-seat but in the present case where the claim of P. Ws. 1 and 2 being the eye witnesses appears to be absolutely doubtful then it is necessary to discuss the motive. The motive alleged in the fardbeyan was that the accused persons entered 15 into the house to steal he-goat of the deceased Ashok Mishra, but the he-goat was not stolen. P.W.2 in paragraph no. 15 has specifically stated that the accused persons did not take anything from the house and that the accused persons did not bother to disturb any article in the house. Moreover, it is the case of the prosecution that the assault by dagger did not take place in the informant‟s compound and above all P.W.8 in paragraph no. 27 has clearly stated that he has not made any investigation with regard to the presence of the goat in the house or any investigation with regard to the motive alleged by the prosecution. It appears that the prosecution though alleged the motive with conformity as the alleged motive has been mentioned twice in the fardbeyan but during evidence both P. Ws. 1 and 2 have completely disregarded the motive alleged in the fardbeyan. This non-mentioning of the alleged motive during evidence further makes the evidence of P.Ws.1 and 2 doubtful as having not unfolded the true prosecution version. Since the prosecution has failed to prove the charge of stealing of the goat by the accused persons, hence the motive, as alleged, fails to have any substance, thereby creating further doubt in the prosecution case. 16 20. The conduct of the informant‟s side also makes the case doubtful. The fardbeyan‟s attesting witness Raj Narayan Mishra and P.Ws.1 and 2 claim themselves to be the eye witnesses to the occurrence but neither in the F.I.R. nor in the evidence of P. Ws. 1 and 2, it gets reflected that they made any effort to save the victim from assault, which not only makes their conduct unreasonable but also makes the prosecution version unbelievable. The conduct of the informant‟s side further gets clouded from the fact that none went to inform the police station. This fact has been admitted by P.W. 3 in last paragraph and P.W.8 in paragraph no. 12 of their evidences, that the fardbeyan was recorded after 10 hours of the actual occurrence. 21. The other circumstances which creates doubt about the conduct of the informant‟s side is that admittedly deceased Ashok received injuries at the door of Mohan Mishra whereas P. Ws. 1 and 2 admit that he died instantly after receiving the dagger injuries. Though P.W. 3 claims to have collected the dead body but he has not disclosed the place from where the dead body was collected, though P.W. 6, who is a witness to the inquest, has stated in paragraph 17 no.4 of his evidence, that the dead body was kept at the door of the deceased on a bedded cot. P.W.8 has also found dead body at the door of the deceased but the prosecution does not disclose as to how and when dead body was shifted from the concerned area of Mohan Mishra‟s house to the door of deceased nor any investigation was made by P.W.8, in this regard. 22. The other unreasonable circumstance is the evidence of P.W.3, in paragraph no.2, where he claims to have collected the dead body at around 10-11 P.M., whereas admittedly the occurrence took place at 12.00 P.M. in the night. This evidence of P.W.3 coupled with the evidence of the doctor who opined the time of death to be within 36 hours when the post mortem was conducted on 04.06.1984 at 5.00 P.M. i.e., within 17 hours of the occurrence, hence this inconsistency creates doubt with regard to the time of occurrence as has been stated by the prosecution. 23. Surprisingly, the prosecution has relied only on the evidence of P. Ws. 1 and 2, who happen to be the family members of the deceased, as P.W.1 is the cousin and P.W.2 is the mother, whereas the fardbeyan reflects that the occurrence took place in front of house of Mohan 18 Mishra. The Investigating Officer has not examined even a single member of the family of Mohan Mishra‟s house, who were present in the house at the time of the occurrence. P. Ws. 1 and 2 both have suggested that many people gathered at the place of occurrence but none have been examined. P.W. 1 in paragraph no. 22 has stated that there were other family members in the house of the informant but they have also been withheld. P.W.3 has stated in the last portion of his evidence that one Jhari Lal went to inform the police but he has also not been examined. The Investigating Officer admits that no Sanha entry was made. P.W. 5 in his evidence admits that there is other seizure list witness, but he has also been withheld. P.W.6 has admitted that Pradeep Mishra was the other inquest witness but he has also not been examined. P.W.7 in paragraph no.3 has admitted that one Dr. R.B. Thakur conducted the post mortem on the dead body of the deceased alongwith P.W.7 but Dr. R. B. Thakur has also not been examined. P.W.8- the Investigating Officer in paragraph no.1 admitted that one Nawal Kishore Prasad prepared the formal F.I.R. but he has also not been examined. P.W.8 in paragraph no. 10 of his evidence has mentioned 19 several witnesses, whose statement were recorded under Section 161 Cr. P. C. but they have not been examined. Hence, non-examination of the material independent witnesses further clouds the prosecution case. 24. It is true that the prosecution failed to examine the material witnesses but the conduct of the Investigating Officer in non-examination of the relevant witnesses during investigation, non-transmission of blood stained earth for chemical examination, non-measurement of place of occurrence or measurement of the distance between the two places of occurrence and non- description of the location of the dead body when the sketch map was prepared and which has not been exhibited, create an adverse and impression with regard to the conduct of the Investigating Officer. 25. In the light of the discussions made above, it is apparent that the prosecution has measurably failed to prove the case beyond the shadow of reasonable doubt. 26. Hence, the evidence and materials on record, relying upon which the order of conviction has been passed, is full of inconsistencies and contradictions and it is unsafe to rely upon them. 20 27. Hence, the judgment of conviction and order of sentence dated 29.07.1988 are set- aside. The appellants are directed to be discharged from their liabilities of their bail bonds. 28. Accordingly, the appeals are allowed. Patna High Court Dated 9th November,2010. N.A.F.R./U.K. (Shyam Kishore Sharma,J) (Dinesh Kumar Singh,J.)