IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.313 of 1989 Against the judgment dated 16.6.1989 passed by learned Sessions Judge, Siwan, in Sessions Trial no. 132 of 1987. ========================================================== = Chandrama Sah son of late Hiro Sah, resident of village- Hajipur, Police Station- Andar, District- Siwan. .... .... Appellant. Versus The State of Bihar .... .... Respondent ========================================================== = Appearance : For the Appellant : M/s Anuj Prakash and Rakesh Kumar. For the Respondent : Miss. Shashi Bala Verma. For the Informant : M/s Ajay Kumar Thakur and Ramadhar Shekhar. ========================================================== = CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH And HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) Navaniti Prasad Singh & Ashwani Kumar Singh,JJ:- The sole appellant has been convicted by the learned Sessions Judge, Siwan, in Sessions Trial no. 132 of 1987 by judgment dated 16.6.1989 by which the appellant has been held to be guilty of an offence under Section 302 of the Indian Penal Code and sentenced to life imprisonment. The informant has appeared in this appeal and has been granted liberty to assist the Court through learned A.P.P. At the very outset, we may first notice that the deceased Harihar Sah is the eldest of the brothers of the appellant. They are three brothers. The eldest being Harihar Sah, the deceased, whose widow sister-in-law is Gagni has deposed as D.W.1 whereas P.W.2 (Rama Shankar Sah) and P.W.5 Budhan Sah, the informant, are the sons of Harihar Sah and D.W.1 and thus the nephews of the appellant. It is not Patna High Court CR. APP (DB) No.313 of 1989 dt.28-09-2011 2 in dispute that the three families are separate though stay in the same village in close proximity having their agricultural field also nearby. The prosecution case is based upon the fardbeyan of P.W.5- Budhan Sah. It was recorded at 6.30 a.m. on 14.8.1987 by the Officer Incharge of Aandar Police Station, District- Siwan, which is Exhibit- 3. In the fardbeyan it is alleged that on 13.8.1987 at about 4 p.m. the informant along with his father was plucking paddy seedling for transplanting. P.W.2., the informant’s brother, was also there. Having plucked substantial amount of paddy seedling, Harihar Sah, the father of the informant made two bundles thereof and asked the two sons to take it to their home. It is further alleged that while they were plucking the paddy seedling in the adjacent field their uncle, the appellant, was also busy in plucking paddy seedling. Having deposited paddy seedling at their home in village when they were returning to field they heard shouting sound of their father for help. They rushed to the paddy field and found the appellant, their uncle, pressing lathi on his (father’s) neck but on seeing the informant and his brother having arrived there, he ran. He was chased by the two and he came in the village and entered into his house. They waited for some time but when he did not come out they came back to the paddy field to find their father dead. He was then carried to their house. As it had become late in the night, no information could be sent to the police and therefore the fardbeyan was being lodged at the police station itself on the next morning. Upon registering the said FIR, police came to the house of the informant and prepared the inquest report at 9 a.m. on 14.8.1987.This is Exhibit 4. In the inquest report it is noted that the Patna High Court CR. APP (DB) No.313 of 1989 dt.28-09-2011 3 deceased was killed by lathi assault and strangulation but who had allegedly killed, is not mentioned. There were two witnesses to the inquest report. The body was in the house of the informant. Of importance it is to note that in clause 7 of the inquest report notes that the dead body was wearing an old Dhoti, which was wet. It was further noted that as disclosed the deceased had been killed by lathi blow and strangulation, as noted above, but who had killed is not mentioned therein. The body was then sent for post mortem and P.W.4, Dr. Kalika Sharan Singh, conducted the post mortem, which is Exhibit- 1. The post mortem report was conducted on the same day at Siwan Sadar Hospital at 2 p.m. i.e. on 14.8.1987. The post mortem report shows a lacerated wound on the left side of skull, swelling on the left side of the face and forehead, one lacerated wound pinna deep removing half of pinna, bleeding through nose,one incised wound muscle deep on the base of right middle finger, fracture of left radius and ulna in the middle, fracture of left mandible, fracture of left temporal bone, abdominal cavity is full of blood and muscle and skin is lacerated on left temporal region. All the injuries were ante mortem and within 24 hours. Upon investigation having been completed, charge sheet was submitted against the appellant, who having pleaded not guilty of the charges for the murder of Harihar Sah and has been tried and found guilty as such and sentenced to life imprisonment. On behalf of the appellant it is submitted that if the evidence of the witnesses are looked in correct perspective , it would be seen that there is no eye witness to the occurrence. In fact, the prosecution has set up a wrong story and did not tell the true facts. It is submitted that there was inordinate delay in lodging the FIR, yet the story given Patna High Court CR. APP (DB) No.313 of 1989 dt.28-09-2011 4 therein and the story , as tried to be established in course of trial, are quite different. It is pointed out that the FIR having been registered, it took over three days time to reach the Chief Judicial Magistrate through special messenger, which itself creates serious doubt on the prosecution version. It is submitted that apparently Harihar Sah while keeping a watch on the paddy seedling at night had been killed by some miscreants and his body was discovered in the morning. Accordingly FIR was lodged falsely implicating the appellant only to settle the family disputes. On behalf of the informant it is submitted by Sri Ajay Kumar Thakur, learned Senior Counsel that there are virtually four eye witnesses. The motive is also there and hence the appellant has been rightly convicted. We have heard the parties at length and examined the entire materials on record. In our view, the conviction and sentence cannot be sustained. Learned counsel for the informant is correct when he says that there are four eye witnesses virtually. In fact, as would be seen that there are no truthful witness on which the Court can rely. Four witnesses have claimed to be the eye witnesses. They are P.W.1 Munri, a professed independent eye witness, Ramashankar Sah, son of the deceased, who is P.W.2, Ramnaresh Sah, P.W.3, an independent eye witness, not of the occurrence but of allegedly having seen the appellant run from the place of crime and P.W.5 Budhan Sah, who is also the son of the deceased and is the informant. First, we may high light the facts, as found in the fardbeyan. Fardbeyan is by P.W.5, the son of the deceased and it says that while Patna High Court CR. APP (DB) No.313 of 1989 dt.28-09-2011 5 returning to the field he and his brother P.W.2, heard cry of their father, the deceased, for help from the paddy field. Paddy field situates about half kilometer away from the village . Upon hearing the sound they ran and saw the appellant, their uncle, pressing his neck and trying to strangulate. Upon seeing the informant and his brother, he ran and was given a hot chase and he entered into his house in the village. They waited for some time and then they returned to find their father dead. The body is said to have been carried to the house in the evening itself. What is to be noticed here is that apart from the informant and the name of P.W.2, no other name is mentioned with regard to the facts of having seen the occurrence or assisting in chase or present in the village when the appellant ran and entered his house though it is mentioned that a large number of villagers had assembled, both at the place of occurrence in the paddy field and at the house. The second more important thing is to be noted that the fardbeyan was being given and registered almost 12 hours after the occurrence. The occurrence is of the evening of 13th August, 1987 and the fardbeyan is recorded at the police station at about 6.30 a.m. on 14.8.1987. The third thing is to be noted that the fardbeyan having been registered as FIR at 6.30 a.m. on 14.8.1987 it was then sent to Chief Judicial Magistrate by special messenger but it was received by the learned Chief Judicial Magistrate, Siwan only on 17.8.1987 as per endorsement on the FIR itself. Thus, there appears to be three days inordinate delay in the FIR reaching the Chief Judicial Magistrate. The relevance of these issues now come. P.W.1- Munri Devi, turned up to depose in the Court. Her deposition is to the effect that she was also plucking paddy field seedling from her neighbouring Patna High Court CR. APP (DB) No.313 of 1989 dt.28-09-2011 6 agricultural field. While returning to the village she saw the appellant armed with lathi assaulting the deceased. She ran towards the village. While returning , on the way, she met the informant and his brother and told them that their father was being assaulted by their uncle and they should rush to save him and it is upon this information they ran to the place of occurrence It may be noted that this is a story which came for the first time, in the Court. It is not even suggested or mentioned in the fardbeyan. When the Investigating Officer, P.W.6, was cross examined, as to whether the informant P.W.5 disclosed to him this fact that it was Munri Devi, who saw the occurrence and disclosed it to them upon which they ran to the place of occurrence, the investigating officer answered in the negative. Thus, it would be seen that in the fardbeyan or the statement of P.W.2 and P.W.5 in terms of Section 161 Cr.P.C. they did not even mention Munri Devi and the incident accordingly. Thus, it is evident that Munri is not mentioned in the FIR. She is not mentioned by the two sons of the deceased in course of investigation and therefore her evidence that she had seen the occurrence and she had seen the appellant brutally assaulting the deceased cannot be accepted. She has been introduced only to give evidence as an independent witness improving the prosecution case and substantiating it. She is thus unreliable witness specially when the prosecution had over 12 hours to decide the contents of the fardbeyan, they did not mention Munri. This fact is also clear when we refer to the inquest report. The inquest report is prepared at about 9.30 a.m. at the village but here again it is not mentioned as to who had killed the deceased. If what is alleged by the prosecution is correct then the identity of the appellant, Patna High Court CR. APP (DB) No.313 of 1989 dt.28-09-2011 7 who was their own uncle was known from the evening itself. Thus, the evidence of Munri Devi and the implication of the appellant become doubtful. Our finding is further supported by the evidence of D.W.1,Gagni. She is the aunt of the informant and the sister-in-law of the appellant. She is a widow. She in her deposition clearly stated that she is separate from other brothers. She lives by her own. When the dead body of her elder brother-in-law was brought to the house she went to the house of the deceased upon coming to know of his death in the morning. No name was mentioned much less of the appellant having killed him. The two things have come from this statement. Firstly, even though she is the sister-in-law of the deceased and lives in the house close-by she was not informed of the death and the recovery of the dead body in the evening or night. She was told of it only in the morning. She was not disclosed the name of the appellant as the assailant. This creates doubt on the prosecution version as to the manner of occurrence and the involvement of the appellant. Now, we may examine the evidence of the second independent eye witness, Ramnaresh Sah, P.W.3. He states that he along with the informant and his brother rushed to the paddy field upon being told that the deceased was being brutally assaulted by the appellant . They saw the appellant trying to strangulate the deceased . Upon seeing them the appellant ran away. This witness along with the informant and his brother chased the appellant all along till the appellant entered in his house and locked. They waited outside the house of the appellant and then he along with the informant and his brother came to the paddy field to find the father dead. He then along Patna High Court CR. APP (DB) No.313 of 1989 dt.28-09-2011 8 with the informant and his brother carried the deceased to the house. If all this is true then one wonders why his name is not mentioned anywhere in the fardbeyan or in course of investigation. or in the deposition of P.W.2 and P.W.5 in the Court. Thus, he is also a set up person to show that an independent person has supported the prosecution. He is most unreliable witness and his evidence cannot be accepted. We come to the evidence of P.W.2 and P.W.5, who are brother and the nephew of the appellant. In their evidence they have categorically stated that they saw the appellant trying to press the neck of their farther with lathi. They do not allege any assault. From post mortem report it appears that there are multiple injuries all over the body but there is no sign of any strangulation or injury on the neck. There is not even abrasion on the neck. To the contrary there is one incised wound 1” x ½” muscle deep on the base of right middle finger. This by no means could have been caused by a lathi. There being no other weapon alleged or found, the injuries, as found, do not corroborate the ocular evidence. We may notice some other facts as well. In the evidence these two witnesses i.e. P.W.2 and P.W.5 as well as the investigating officer admit that though the police station was about 11 kilometers away. In the adjacent village, there was village choukidar, there was a Mukhiya but no one was ever informed about the incident. Three days time to reach the FIR to the Chief Judicial Magistrate is not at all explained by the prosecution specially when it was sent by special messenger. Then we come to the evidence of the Investigating Officer, Patna High Court CR. APP (DB) No.313 of 1989 dt.28-09-2011 9 P.W.6, , who admits in his cross examination that he did not find blood stains or sign of any strangule at the place of occurrence contrary to what is alleged in the fardbeyan that the appellant was plucking paddy seedling in the adjacent field, no such sign of plucking was found. The prosecution witnesses have admitted that in the night people used to guard their paddy seedling. This was with the suggestion that apparently the deceased was guarding paddy seedling in the night and some miscreants killed him. His body was recovered in the morning and brought home making false allegation against the appellant. This suggestion is further substantiated from the evidence that if the deceased was brutally assaulted in the paddy field, which admittedly had about 6” water in it, he would have been soiled all over, which was not the case. If the prosecution version is correct that his body was removed in the house in the night itself then how it is that in the morning at 9.30 a.m next day when the inquest report was prepared his Dhoti was still found to be wet. We may further notice that in the fardbeyan it is alleged that there were several people, who chased the appellant when he entered into the house. There were 100 people assembled outside his house but not an independent witness has been examined in the Court rather the investigating officer in his cross examination has admitted that he had on the same day examined several persons who are named in the cross examination but none of them has been produced in course of trial and no explanation has been given for this. This clearly shows that the prosecution is holding back the evidence that is available in respect of the crime. Even the witnesses to the inquest , which as noted above, does not disclose the name of the appellant have not been examined. Patna High Court CR. APP (DB) No.313 of 1989 dt.28-09-2011 10 We may again note that though the body, after the inquest was prepared at 9.30 p.m., was immediately along with two choukidars sent to Siwan Sadar Hospitals for post mortem, which was done on the same very day at 2 p.m., still the FIR, as instituted, which was sent to Chief Judicial Magistrate on the same morning by special messenger reached the Chief Judicial Magistrate at 4 p.m. three days later, on 17.8.1987.The choukidars, who carried the dead body to Siwan Sadar Hospital for post mortem, have not been examined. Thus, on going through the entire evidence and appreciating it, we have no hesitation in setting aside the judgment under appeal and acquitting the appellant as the prosecution has failed to establish its case beyond reasonable doubt.. In the result, the appeal is allowed and the appellant is acquitted and discharged from the liability of bail bond. Patna High Court, 29th September,2011, NAFR (S.Singh). ( Navaniti Prasad Singh, J.) (Ashwani Kumar Singh,J)