IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No. 115 of 2006 CHULHAN RAI, S/O LATE LAXMAN RAI, R/O VILLAGE PAHLEZA SHAHPUR DIYARA, P.S. SONPUR, DISTRICT SARAN ........... APPELLANT Versus THE STATE OF BIHAR ........... RESPONDENT With Criminal Appeal (DB) No. 174 of 2006 BALI RAM RAI, S/O SRI MURAT RAI, R/O VILLAGE CHHITARCHAK, P.O. PAHLEJA BARA, P.S. SONEPUR, DISTRICT SARAN AT CHAPRA ............ Appellant Versus THE STATE OF BIHAR ........... RESPONDENT With Criminal Appeal (DB) No. 381 of 2006 JHULLAN RAI, SON OF LATE LAXMAN RAI, RESIDENT OF VILLAGE PAHLEZA SHAHPUR DIYARA, P.S. SONPUR, DISTRICT SARAN …………………… Appellant Versus THE STATE OF BIHAR …………………… Respondent With Criminal Appeal (DB) No.635 of 2006 ANIL RAI @ ANIL KUMAR RAI, S/O SHRI JHULAN RAI, R/O VILLAGE PAHLEZA SAHPUR DIYARA, P.S. SONPUR, DISTRICT SARAN (CHAPRA) ......... Appellant Versus THE STATE OF BIHAR ......... Respondent ________ For the Appellant/s : Mr. Rana Pratap Singh, Sr. Advocate. Mr. Vindhya Keshri Kumar, Sr. Advocate. Mr. Rama Kant Sharma, Sr. Advocate. Mr. Sumant Singh, Advocate. Mr. Niraj Kumar, Advocate. Mr. Aaruni Singh, Advocate. For the State : Mr. A.K. Sinha, A.P.P. For the Informant: Mr. Y.C. Verma, Sr. Advocate. ___________ P R E S E N T HON’BLE MR. JUSTICE SHYAM KISHORE SHARMA HON’BLE MR. JUSTICE MIHIR KUMAR JHA Shyam Kishore Sharma & Mihir Kumar Jha, J.J., All these four criminal appeals arise out of 2 of the same occurrence dated 27.02.2004 leading to institution of Sonepur P.S Case no. 18 of 2004 but two separate Sessions Trial namely, Sessions Trial No. 567 of 2004 against the appellant Chulhan Rai, Bali Ram Rai and Jhulan Rai and Sessions Trial No. 904 of 2005 against the appellant Anil Rai ending with two separate judgments of conviction and sentence dated 20.01.2006 and 21.04.2006 respectively, whereby and whereunder, all the aforesaid appellants have been convicted for offence under section 302/149 and 148 of the Indian Penal Code as well as Section 27 of the Arms Act and have been sentenced to undergo Rigorous Imprisonment for life for offence under section 302/149 of the Indian Penal Code as also for three years Rigorous Imprisonment for offence under section 148 of the Indian Penal Code and further to also undergo Rigorous Imprisonment for seven years for offence under section 27 of the Arms Act. All the sentences are however to run concurrently. 2. The prosecution case as set out by Dharmendra Kumar Rai in his Fard Beyan before the police at 11.45 P.M. on 27.2.2004 is that at about 8.30 P.M. on the same day i.e. 27.2.2004 when he alongwith his other family members including his deceased father Sudarshan Prasad Rai were going to their home on a Tempo, they were intercepted by five persons on 3 motorcycle and 4-5 on foot and among motorcycle riders Jhulan Rai, Anil Rai, Sanjay Rai, Umesh Kumar Rai and Baliram Rai, armed with rifle and pistols, had got their tempo stopped, whereafter they had dragged out his father Sudarshan Prasad Rai from the tempo and Jhulan Rai, Anil Rai and Sanjay Rai thereafter had caused one fire arm injury each on his, as a result whereof his father had fell down on account of bleeding injuries in his head and stomach. It is said that Umesh Rai and Baliram Rai and other 4-5 unknown persons, who were on foot, had also threatened the informant and others with fire arms in their hands and had asked them to run away failing which they too would be done to death by them. In the Fard Beyan the motive for such assault on the father of the informant is said to be threat given by his father for getting them apprehended by the police. The informant has also claimed that after the accused persons had gone away from the place of occurrence he had seen his father desperate in pain and on hulla made by the informant when a few villagers had assembled, he could with their help proceed to patna for treatment of his injured father but he had succumbed to his injuries in the way to Patna and as such, he had returned back with the dead body of his father to Sonepur Police Station where his Fard Beyan was recorded at 11:45 pm on 27.02.2004 itself. 4 3. From the reading of the First Information Report it would thus be clear that the informant did not name any of his family members as eye witnesses who were allegedly accompanying him and his father in the tempo and had witnessed the occurrence alongwith the informant. The police, however, after completing investigation had submitted a charge sheet against Anil Rai, Baliram Rai, Chulhan Rai and Jhulan Rai as well as one Sanjay Rai, whereafter the case was committed to the court of Sessions on 7.8.2004 in the case of Jhulan Rai, Chulhand Rai and Baliram Rai and 19.12.2005 against the appellant Anil Rai. Sanjay Rai, however, was never apprehended and having been declared absconder his trial has not been held as yet. All the appellants were charged for committing offence under Section 302/34 and 148 I.P.C as well as under Section 27 Arms Act for committing murder of Sudarshan Prasad Rai, the father of the informant Dharmendra Kumar Rai. 4. The prosecution in support of its case in S.Tr.No. 567/2004 had examined nine witnesses out of whom seven of them were again examined in S.Tr.No. 904/2005 and only Manoj Kumar Rai and Rajdeo Prasad Yadav were not examined in course of S.Tr.No. 904/2005. While the four witnesses examined by the prosecution Sunil Kumar Rai (P.W.1), Shyama Prasad Rai (P.W.2), Dharmendra Kumar Rai(P.W.4) and Suresh Rai(P.W.5) had 5 claimed to be the eye witnesses, one Manoj Kumar Rai(P.W.3) is said to be a hearsay witness. Ajay Kumar (P.w.6) is the Investigating Officer, P.W.9 Dr. Shardhanand is the doctor conducting postmortem report, whereas P.W.7 and P.W. 8 are the Police Officers, who are formal witnesses. Though the defence had not examined any witness but it had produced certain evidence to establish enmity as with regard to election dispute in which one of the appellant is said to have contested the election against the deceased on the post of Mukhiya and also a complaint was filed by one of the accused against the deceased and his son. 5. The trial court on the basis of these set of evidence had convicted and sentenced all the four appellants in its two separate judgments dated 20.1.2006 and 21.4.2006. 6. Learned counsel for the appellants have submitted that as a matter of fact there was no eye witness to the occurrence and that the Fard Beyan was itself not only delayed but also a tainted version which did not inspire confidence in the whole prosecution case. In this regard they have also criticized the manner in which the investigating Officer had conducted the investigation. It was also contended that even when the Investigating Officer had got full details of the cognizable offence either in 6 form of Station Diary entry or in course of preparation of inquest report prior to recording of the Fard Beyan of the informant, the same was not treated to be the First Information Report and the informant was late on allowed to introduce a wholly concocted and fabricated story. Special emphasis was given by the learned counsel for the appellants on the aspect that if the Investigating Officer after receiving telephonic information had already reached at the place of occurrence in Shahpur Diyara and has also come to know from the villagers about the occurrence as also the death of the deceased (Mukhiya Ji) from the villagers, the conduct of the Investigating Officer in not finding out the name of the assailants or not making any effort to inspect the actual place of occurrence would only go to show that the whole investigation was conducted in a dubious and perfunctory manner. It was also contended on behalf of the appellants that an unusual practice of preparing the inquest report first and sending the dead body for postmortem before recording of the Fard Beyan in this case was a deliberate and calculated device of the Investigating Officer to allow the prosecution to falsely implicate the appellants. 7. Learned counsel for the State as also learned counsel for the informant, on the other hand, had stated that the prosecution case was fully 7 supported by its four eye witnesses and the medical evidence and therefore, a little embellishment on the part of the Investigating Officer or his lapse in not seizing the blood stained earth or blood soaked cloth of the deceased and/or persons accompanying him or not sending pellets recovered from the dead body of the deceased for its examination by the Ballistic Expert would not adversely affect the correctness of the prosecution case. 8. As noted above the informant did not name any one as eye witness to the occurrence nor had disclosed the manner in which the deceased in the injured state was being taken from place of occurrence to Patna but in course of trial, however, a major facelift was given to the prosecution case by filling up all the gaps in the First Information Report, inasmuch as in the First information Report there was no eye witness but then the informant introduced his own uncle, the brother of the deceased as also his two cousins, Bhatija and Bhagina of the deceased, as eye witnesses. Additionally, the prosecution gave up the story of the deceased being taken for treatment to Patna on the tempo and it was claimed that the deceased after sustaining injuries was being taken to Patna Medical College and Hospital in a Maruti Car arranged by the villagers and that the deceased succumbed to the 8 injuries in way to P.M.C.H. in that very Maruti Car which was thereafter brought back to the Police Station where the Investigating Officer had first prepared the inquest report of the deceased in the Maruti Car itself, whereafter the dead body of the deceased was sent for postmortem and only thereafter the Fard Beyan was recorded. In course of deposition though all the alleged four eye witnesses are said to have consistently supported the prosecution version of the deceased sustaining three fire arm injuries, one each caused by Jhulan Rai, Anil Rai and Sanjay Rai but only two of them were corroborated in medical evidence of the doctor conducting the postmortem report who had also found a sharp cut injury on the head of the deceased whereas the eyewitnesses had claimed such head injury to have been caused by rifle. 9. In the considered opinion of this Court on a close perusal of deposition of eye witnesses and connected materials on record it would be difficult to believe that there was any eye witness to the occurrence. Though the prosecution has initially claimed that Sunil Kumar Rai, Shyama Prasad Rai, Manoj Kumar Rai, Dharmendra Kumar Rai and Suresh Rai were the five eye witnesses who were said to be accompanying the deceased in the fateful night in the tempo but keeping in view that no one except the informant was named as 9 an eye witness in the First Information Report, if the evidence of the informant Dharmendra Kumar Rai is first examined it would be found that even though he is said to be all along present from the inception of the occurrence till lodging of the Fard Beyan, curiously enough his Fard Beyan was recorded as a last act on the date of occurrence. It is rather surprising that even when the Police Officer, Investigating Officer had received information of the murderous attack on the father of the informant on telephone for which Sanha entry was also recorded in the Station Diary, he did not record the Fard Beyan of Dharmendra Kumar Rai till he had prepared the inquest report in presence of Sunil Kumar Rai and Shyama Prasad Rai, P.W.1 and P.W.2, in both the sessions trial which was prepared at 11 P.M. on 28.2.2004. This abnormal conduct of the Investigating Officer of not recording the Fard Beyan first has a direct bearing on the varacity of his version, inasmuch as he has in his evidence in court admitted that he had met the Investigating Officer much earlier to recording of his fard beyan while he was carrying his father to Patna for his treatment. In paragraph No. 25 of his deposition the informant has stated that: ^^iVuk tkrs le; lksuiqj iqfyl dh xkM+h feyh rFkk mlij Fkkuk izHkkjh Fks muls ?kVuk fo"k; esa dgk rks os cksyk fd bykt ds fy, ys tkb;sA iqfyl okyh xkM+h xks/kk cktkj ls FkksM+k vkxs HksaV gqvk FkkA Fkkuk izHkkjh cksys fd os ?kVuk LFky ij tkrs gSa vki oknh dks iVuk ys tkb;sA** 10 10. A question would, therefore, arise that if the Investigating Officer had already received information at 8.30 P.M. on telephone about the firearm injuries sustained by the father of the informant, who was a Mukhiya and had already started from the Police Station with his police party for place of occurrence for investigating the offence and could also meet the informant in the way to Patna near Godha Bazar, adjacent to Sonepur Town, and could also talk to the informant what could have prevented him in either recording his statement or at least accompanying the deceased to Patna, inasmuch as at that point of time as per the prosecution case the deceased was still alive and was being taken for treatment to Patna. It, therefore, creates a great doubt as to whether the version of the informant who had not named any other person in his Fard Beyan as eye witness was actually himself an eye witness to the occurrence. In fact the crucial gap of more three hours did easily facilitate meeting of mind to the prosecution party and name the accused persons by also arranging eye witnesses among the family members said to be accompanying him and the deceased. Lest there be an impression that the informant’s aforementioned stand in his cross- examination was more of an aberration that he had met the Investigating Officer while he was taking his 11 inured father for treatment to Patna and that there was some exchange of verbal communication between them, as noted above, it has to be kept in mind that a similar statement has also been given by P.W.2, own brother of the deceased and own uncle of the informant who too in paragraph Nos. 11 and 12 of his deposition had stated in similar terms that: ^^?kVuk ds ckjs esa geus dksbZ lwpuk Fkkuk esa ugha nh FkhA ek:rh ls HkkbZ dks iVuk ys tk jgk Fkk rks xksyk ,oa Fkkuk ds chp djhc njksxk th feys FksA njksxk th ls igys ls tku igpku ugha FkhA njksxk th bZ'kkjk fd, fd bZykt ds fy, ys tkbZ;sA njksxk th xkM+h jksddj t[e dks ns[kus dk iz;kl ugha fd, FksA lqn'kZu jk; dks fdrus cts xkM+h esa ykns Fks ;kn ugha gSA iVuk tkus ds dze esa njksxk th ls fdrus cts eqykdkr gqbZ Fkh ;kn ugha gSA** 11. It would thus be difficult to believe the prosecution story which has been subsequently developed to no uncertain end, inasmuch as before the police it is the consistent version of all the prosecution witnesses that after the injury was inflicted on the deceased all of them had proceeded immediately to Patna for treatment of the deceased, who was in great pain on the same tempo and the deceased succumbed to his injuries in way to Patna. Thus, if the Investigating Officer who had already been given the information as with regard to the murderous attack on the deceased at 8.30 P.M. and the Police Officer had having recorded Sanha entry in the Station Diary started for place of occurrence for conducting investigation and in the way he could meet the 12 informant and others, there was no reason either for the Investigating Officer not to record the Fard Beyan till 11.45 P.M. until the inquest report was already prepared by him. Thus, the evidence of P.W.4, the informant and P.W.2, his uncle virtually seals the prosecution version of the Fard Beyan of P.W.4 being the First Information Report. 12. The answer to such an attempt of the informant of introducing eye witnesses to the occurrence lies in the version of P.W.1 who is said to be one of the person accompanying the tempo alongwith the informant and the deceased when the occurrence is said to have taken place. He has in his evidence in court stated that: ^^Fkkuk ij esjk C;ku gqvk lcls igys rFkk dkxt ij esjk nl[kr gqvk esjs vykos ';kek iz0 Hkh nl[kr fd;sA** 13. The question ,therefore, would be if Sunil Kumar Rai was an eye witness and had already been given his statement to police which was also singed by Shyama Prasad Rai (P.W.2) why has the prosecution withheld the same, inasmuch as, there is actually no such written statement of P.W.1 on record. 14. In such circumstance it will be very difficult for this Court to accept that the Fard Beyan in question on the basis of which First Information Report was recorded was the actual first prosecution 13 version in terms of section 154 of the Code of Criminal Procedure. None-the-less keeping in view the purpose of the First Information Report to be only setting the police investigation in motion this Court has also examined other aspects by scanning the evidence of the other witnesses and from them also it transpires that as a matter of fact there is no eye witness to the occurrence, a fact which gets full corroboration from the medical evidence. It has to be taken into consideration that it is the consistent case of the prosecution that only three persons, namely, Anil, Jhulan and Sanjay had caused injuries on the person of the deceased by respective fire arm but the doctor conducting the postmortem found two fire arm injuries and one sharp cut wound injury on the parietal bone 4”x1/4” and about this sharp cut injury the doctor in his cross-examination was very specific herein he had stated that: “I had found a sharp cut injury on the parietal bone of the deceased. This injury was 4”x1” and had caused fracture on the parietal bone.” 15. Thus, if the deceased had sustained also a sharp cut injury it would be too naïve to explain it as has been done by the trial court in the impugned judgment to be either a “slip of tongue or slip of pen”. As a matter of fact the presence of sharp cut 14 injury on the head of the deceased in the light of consistent parrot like statement of all the witnesses of there being only three fire arm injuries caused on the person of the deceased would create a big dent on the veracity and correctness of the alleged five eye witnesses examined by the prosecution. 16. It is here that this Court has to also note a major disturbing feature in this case. The Investigating Officer had not only come to know of the murderous attack on the deceased at Police Station at8:30 pm and had started for investigation. The Investigating Officer in his deposition has also admitted that he had reached the place of occurrence at village Shahpur Diyara, the alleged place of occurrence at 9 P.M. from where he could know from the villagers that the deceased had been taken away for treatment to P.M.C.H. and also that he could come to know that his death had taken place in way to P.M.C.H. whereafter he had returned back to the police Station from Shahpur Diyara. However, neither in the Station Diary entry the place of occurrence at Shahpur Diyara was mentioned nor there was any prior information available to him that such an occurrence had been committed at Shahpur Diyara and therefore, it becomes clear that the prosecution case was weaved around deliberate laches and lapses on the part of the Investigating Officer. Such deliberate 15 laches and lapses on the part of the Investigating Officer in the present case going to the root of the matter, inasmuch as: (i) Investigating Officer has made no attempt to make Station Diary entry as a part of his beginning point of investigation and at least his case diary about which his attention was drawn in course of his cross examination does not bears any entry of the Station Diary entry. (ii) The Investigating Officer did not make any attempt to inspect the actual place of occurrence in the night even when he had come to go to the place of occurrence at 9 pm before recording Fard Beyan and that he had inspected of the place of occurrence only in the next morning at 6 A.M. (iii) Even when he had inspected to the place of occurrence in the next morning and had found blood stained earth he did not seize them. (iv) The I.O. was made aware of the fact that the occurrence had taken place when the deceased with informant and others were traveling in the tempo and the occurrence had taken place at least in presence of the tempo driver but no effort was made by him to either trace the tempo or its driver or the owner. It has come in evidence of the prosecution witnesses that one Raju Rai was the owner of the tempo on which the deceased with his son informant and others were allegedly coming to their village home but 16 even Raju Rai was never examined and the prosecution has happily been allowed to go scot free by giving explanation that the tempo and its driver eloped ever since the date of occurrence. (v) The doctor in his cross-examination has stated that he had recovered two pellets from the dead body of the deceased and had handed it over to the Investigating Officer and yet the Investigating Officer did not send them for its examination by the Ballistic Expert. (vi) The Investigating Officer on return to the Police Station had prepared the inquest report first at 11 P.M. without even recording Fard Beyan of the informant who is said to be present in the Police Station and in fact after preparation of the inquest report at 11 P.M. he had sent the dead body for postmortem and thereafter he is said to have recorded the Fard Beyan of the informant. (vii) While preparing the inquest report it has been recorded by the Investigating Officer that a dead body was found by him in a Maruti Car who was said to have been killed by firearm injuries but neither the driver nor the owner of the Maruti Car was examined nor even the Maruti Car itself was examined by him for recording any objective finding with regard to the alleged version of the prosecution of the informant and others arranging a Maruti Car for taking the deceased for treatment at P.M.C.H. and his 17 succumbing the injuries in the Maruti Car on way to P.M.C.H. 17. The aforementioned vital and crucial lapses on the part of the Investigating Officer is further complicated when he admits that in the night of the occurrence he did not do anything else except preparation of the inquest report and recording of the Fard Beyan, especially when two witnesses to the Fard Beyan were allegedly eye witnesses, P.W. 1 and P.W.2 and were before him as witnesses to inquest report prepared at 11:00 pm even before recording of the Fard Beyan at 11:45 pm. This fact coupled with the circumstances that even when all the prosecution witnesses have consistently stated that a large number of villagers had collected at the time of sustaining of injuries by the deceased near the tempo at the place of occurrence in Shahpur Diyara and also that the houses of a number of persons were near the place of occurrence,