CRIMINAL APPEALS No.471, 489, 501 & 532, ALL OF 1988 ******* AGAINST THE JUDGMENT AND ORDER DATED 20TH AUGUST, 1988 PASSED IN SESSIONS TRIAL NO.264 OF 1982 BY 6TH ADDITIONAL SESSIONS JUDGE, ARA. ******* 1.BBHARAT PRSAD GUPTA 2.MD. JUHUR MIAN -----------Appellants (In Cr.Appeal no.471/1988) 1.SUMESHWAR PRASAD GUPTA @ SUMESHWAR PRASAD, 2. KANAHIYA PRASAD GUPTA -----Appellants (In Cr.Appeal no.489/1988) 1.RATAN PRASAD @ RATANJEE 2.RAMESHWAR PRASAD @ RAMESHWAR JI. -----Appellants (In Cr.Appeal no. 501/1988) GOPAL PRASAD ALIAS GOPAL PRASAD GUPTA -----Appellant (In Cr.Appeal no.532/1988) Versus THE STATE OF BIHAR------Respondent (In all four Appeals) ******* In Cr.Appeal no.471/1988 For the Appellant : Shri Subhash Chandra Dubey In Cr.Appeal no.489/1988 For the Appellant : S/shri Dr.Binod Bihari Sinha & Sunil Krumar Sinha In Cr.Appeal no.501/1988 For the appellants : S/shri Farooque Ahmad Khan Rakesh Kumar Sinha No.I & Anuj Prakash 2 In Cr.Appeal no. 532/1988 For the appellant : S/shri Jagdish Prasad, Anirudh Mishra & A.K. Verma In all four Appeals For the State : Sushri Shashi Bala Verma, APP P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra, JJ. The batch of four appeals is directed against the judgment of conviction dated 20th August, 1988 passed by the learned 06th Additional Sessions Judge, Ara in Sessions Trial no. 264 of 1982 by which appellant Gopal Prasad @ Gopal Prasad Gupta was found guilty of committing offences under Sections 148 and 302 of the Penal Code and was directed to suffer rigorous imprisonment for life as also for two years under those respective Sections of the Indian Penal Code. The remaining appellants were found guilty under Sections 302/149 of the Penal Code and they were also directed to suffer rigorous imprisonment for life. Ratan Prasad @ 3 Ratan Prasad Gupta and Kanhaiya Pd. Gupta, were also found guilty of committing offence under Section 148 of the Indian Penal Code along with Gopal Prasad @ Gopal Prasad Gupta and the same sentence of rigorous imprisonment for two years was inflicted on the above two appellants. The remaining four appellants were found guilty of committing offence under Section 147 of the Penal Code and each of them was directed to suffer rigorous imprisonment for one year. Four other accused persons, namely, Md. Juhur Mian (since dead) Sumeshwar Prasad @ Sumeshwar Prasad Gupta (since dead), Ratan Prasad @ Ratanji and Bharat Prasad Gupta were also found guilty for committing offence under Section 323 of the Penal Code and each of them was directed to suffer rigorous imprisonment for three months for their respective convictions under that particular offences. 2. The incident occurred on 28th October, 1980 at about 9.00 A.M. for which the fardbayan was lodged by Sri Krishna Lal Gupta (P.W.4). It was stated by him that at about 9.00 A.M. he was at his sweet meat shop situated at Ram Rekha Ghat, Buxar and they were selling 4 different articles. In the meantime, some customers came there to take some sweets. The father of the informant requested the customers to come inside his shop. The appellant Bharat Prasad Gupta asked them to come into his shop. It gave rise to a heated exchange of words between appellant Bharat Prasad Gupta and Radhey Shyam Gupta, father of the informant, and, in the meantime, remaining appellants armed with bhala, Chhura or lathi came there and started hurling abuses. The deceased, Radhey Shyam Gupta, was assaulted by the appellants. The deceased wanted to run away from the shop but appellant Gopal Prasad Gupta gave a bhala blow to Radhey Shyam Gupta as a result of which he fell down on the ground. Appellant Gopal Prasad Gupta, thereafter, gave two three repeated blows with bhala to the deceased whereas other appellants who were armed with lathi and Chhura, also assaulted the deceased. It was alleged that appellant Rameshwar Sao, who has been described as Rameshwar Prsasad @ Rameshwar Ji in the present set of Criminal Appeals, dealt incessant lathi blows to the deceased. The informant wanted to intervene and he was assaulted by the 5 appellant Md. Juhur Mian and Ratan Sao on his arm and legs as a result of which the informant was also injured. The informant raised hulla and that attracted the neighbouring shop keepers, Shambhu Sao (not examined), Basantu Sao (not examined and reported dead) and others upon which the accused persons ran away from there. The informant stated that he along with others brought his badly injured and bleeding father to Buxar Hospital for treatment but he breathed his last on way to the Hospital. 3. On the basis of fardbayan (Exhibit-B) the first information report of the case (Exhibit-1) was drawn up and it appears that investigation was taken up. The Investigating Officer has not been examined and as such we do not know as to how did the investigation proceeded in the case. But, we find that inquest was held and inquest report (Exhibit-6) was prepared and that indicates that the dead body had been sent for post mortem examination. The doctor has not been examined and as such we cannot say as to what was the opinion of the doctor as regards the injuries which could be present on the dead body and the 6 cause and time of death but this much is clear that Radhey Shyam Gupta had died on account of some injuries as a result of which conducting of post mortem examination was necessitated. We find, lastly, that the Police had found a case which was fit to be sent up for trial by the trial court. 4. The defence of the appellants was of complete denial about their participation in the occurrence and they suggested to the informant (P.W.4) that they had falsely been implicated on account of greed, grudge and envy and, in fact, the occurrence, as alleged had not really taken place. 5. The prosecution examined a total number of ten witnesses in support of the charges. Out of whom, P.W.1 Dadan Sah, P.W.5 Sarbjeet Prasad Gupta, P.W.6 Bhisham Halwai, P.W.7 Triloki Nath Gupta, were declared hostile whereas P.W.8 Mithai Lal was tendered for cross- examination. P.W.10, Anwar Ansari, was a witness of formal character who brought on record all the documents of the prosecution which had been marked exhibit on their behalf in the case, after giving evidence on the writings of 7 the particular officer who had created those documents. P.W.2, Savitri Devi, wife of the deceased and mother of P.W.4, Krishna Lal Gupta, and P.W.3, Kanhaiya Lal Gupta had given eye-witness account of the occurrence in support of the prosecution case. P.W.9, Shambhu Lal Gupta, is the brother of P.W.2, Savitri Devi, and Sala of the deceased and he has also given eye witness account of the occurrence in his evidence. 6. Considering the evidence the impugned judgment of conviction was passed by the learned trial court. 7. We have heard Sri Farooque Ahmad Khan, the learned counsel appearing on behalf of the appellants of Cr.Appeal no. 501 of 1988. We have also heard Sri Binod Bihari Sinha and Sri Jagdish Prasad, Advocates, who have appeared for the appellants in Cr.Appeal no. 489 and 532, both of 1988 respectively. Sri Subhash Chandra Dubey, Advocate, has appeared for the appellant Bharat Prasad Gupta in Cr.Appeal no. 471 of 1988. We have heard Sushri Shashi Bala Verma, learned Additional Public Prosecutor, on behalf of the State. 8 8. After taking us through the evidence of the four eye witnesses, and also that of P.W.5, Sarbajit Prasad Gupta, it was contended before us that initial prosecution story which was contained in Exhibit-3, fardbayan of P.W.4, appears completely given a go bye by the witnesses and a new story appears told by four of them which was altogether new inasmuch as not only the story of initiation of the occurrence was changed but the place of occurrence was also shifted. It was contended that after considering the evidence of witnesses the court may find that none of the witnesses can be eye-witnesses to the occurrence and eye-witnesses to the occurrence, like, P.W.5 or the shop keeper of that particular shop in which Radhey Shyam Gupta was allegedly murdered, Basantu Prasad were not examined. It was contended in that connection that the informant also does not appear to be an eye-witness along with the other witnesses and on that account his evidence can also not be relied upon in view of his evidence and some unexceptional conduct which was accepted by him while narrating the story before the Court. It was, lastly, contended that the witnesses claimed themselves to be 9 injured but no doctor was produced to support the claim of the witnesses nor any witness like P.W.4, Krishna Lal Gupta, who claimed being treated in hospital, himself produced any evidence that there was an injury upon his body which was caused to him during the course of incident. It was contended that the non-examination of the doctor and also of the Investigating Officer appears seriously prejudicing the defence and also appears a serious defect in the prosecution case and as such the charges cannot be held to be proved. 9. Sushri Shashi Bala Verma, the learned Additional Public Prosecutor, has opposed the contentions tooth and nail and submitted that initial version of the prosecution may not be the real version as P.W.4 and all witnesses have stated that the Investigating Officer of the case was not honest while handling the prosecution. Dishonesty of the Police Officer was from the very inception of the case when he obtained signature of P.W.4 on plain paper so as to creating a document which would be inconsistent with the real story. We were taken to some part of the evidence of P.W.4 as well in support of the 10 above contention and it was contended that the court come to the conclusion that the investigation was dishonest or purposely made perfunctory. If it is held then the story of the prosecution witnesses cannot be brushed aside. 10. We have considered the contentions in the light of the evidence. It is true that the value of the fardbayan could not be that of a substantive piece of evidence and, further, that it could be used only for the purposes of Section 162 of the Code of Criminal Procedure, that is, either to seek the corroboration or to contradict the maker of the document. But the importance of the document still remains. It is the basic prosecution document, which contains the story upon which the whole edifice of the prosecution is built up. This is a valuable document both for the prosecution and for the defence. The prosecution could impress upon the court by citing the testimonies of the witnesses to support that the charges on account of other aspect of the prosecution story being supported by the witnesses, stood proved. As against that the defence can also make reference to the document to submit as to what was the initial prosecution 11 story and how the witnesses have departed from the initial prosecution version by making serious embellishments which could be prejudicial not only to the defence but also to the proof of the prosecution charges and thereby could ask the court that the eye-witness account of the witnesses must not be relied upon. This is why that this court had on many earlier occasions held that the first information report of a case is the most potent weapon in the hands of the defence so as to use it for challenging the veracity of its earliest version as also to show the fallacy which may be occurring in the evidence of the eye-witnesses. 11. When we consider the evidence of the witnesses we find that almost all the witnesses have stated that there was no such incident in which a customer had come to the shop of Radhey Shyam Gupta who asked him to go inside the shop but the same customer was asked by the appellant, Bharat Prasad Gupta to go inside his shop. The witnesses have given up this story. They have also not stated that on that account there was some heated exchange of words and altercation between the deceased and appellant Bharat Prasad Gupta, rather the witnesses 12 have stated that Bharat Prasad Gupta came to the shop of P.W. 2, Sabitri Devi, that is the shop of the deceased to lodge a protest or to give a warning that her son Krishna Lal Gupta (P.W.4) was behaving erratically and that he shall be taught a lesson. The witnesses have stated that after leaving his warning verbally at the shop of the deceased, appellant Bharat Prasad Gupta went to have a dip in the ganges and thereafter, P.W.2 stated the fact by going to the shop of her father, Basantu Ram to state to him as to what appellant Bharat Prasad Gupta had stated to her by way of leaving a warning to her for her son. We may also find that the witnesses thereafter state that Bharat sent P.W.5, Shambhu Nath Gupta, his son to the shop of Bharat Prasad Gupta to call the said appellant where P.W.4, Krishna Kumar Lal Gupta, also arrived a little later. As per evidence of P.W.4 and P.W.9, they were beaten up there. Both of them ran to the shop of Basantu and they were followed by the appellants, who were variously armed, up to the shop of the deceased, where the deceased was assaulted and he was again dragged back to the shop of his father in law, that is, Basantu Ram, and was taken 13 inside the shop, where a bhala was pierced by Gopal Prasad Gupta, which was followed by assaults given by him and other two appellants. 12. Thus, what we find is that the whole story of Bharat Prasad Gupta giving warning or threatening to teach P.W.4 a lesson and Bharat Ram, the father in law of the deceased attempting to enquire into the matter so as to pacify it and thereafter the story that P.W.9 and P.W.4 went to the shop of appellant Bharat Prasad Gupta where they were assaulted and from where they were chased up to the shop of the deceased who was dragged to the shop of his father in law where he was killed is altogether a new story are found during the hearing of the present batch of appeals that witnesses had given the evidence of the above facts as may appear from the evidence of P.W.2 in paragraphs 2 to 9. As such her attention was drawn to her statement made in Court in paragraphs 19, 21, 27 and 28 and it was clearly suggested to her that she had not made those statements. Similar is the case when we consider the evidence of P.Ws 3 and 9. As regards P.W.4, we have the statement of the witnesses in the form and Exhibit-3 and 14 we do not find the above story stated by him while lodging the report. What we further find is that the place of occurrence, as per the informant in his first information report, was his own shop where his father was assaulted and killed, but now the four witnesses examined in the prosecution have shifted it to that of Basantu Gupta. 13. What is the distance in between the shop of the deceased and Basantu, witnesses were cross examined on that fact right from P.W.2 to P.W.9 and we find that the shop of the deceased was either the first or second shop just at the bank of river, when one comes out from the river ganges aftrer taking a dip. The shop of Basantu Gupta and that of the deceased were intervened by twelve shops or by a distance of 100 yards. We could not find any reason as what was the basic purpose of shifting the place of occurrence from the shop of the deceased to that of Basantu Gupta. We also could not comprehend as to why the witnesses were so anxious of introducing such fallacious story, inasmuch as the seizure list, Exhibit-5 indicates that the blood was seized from inside the house of Basantu Gupta. We find this evidence 15 probable which was compelling reason to the witnesses to shift the place of occurrence from the shop of Radhey Shyam Gupta to that of Basantu Gupta but on the very evidence which we have just discussed, we could have another inference that the witnesses might not have seen the occurrence. If they had really seen the occurrence, themselves, there would not have been any inconsistency between their evidence in court and the statements which they had made during investigation. This applies more to the evidence of P.W.4, the informant, whose basic story is contained in Exhibit-3. There could not be any other reason for him to shift the place of occurrence if he had been an eye witness. He cannot be held to be an eye witness because as per his report, it was his own shop where the deceased was assaulted and killed. Now, he states that it was his grand father’s shop where his father was assaulted and killed. 14. While we were considering the evidence of P.W.2, Savitri Devi, we found, as we have just pointed out, that suggestions were given to her in paragraphs 19, 20, 23 and 27 of her evidence that she had not witnessed 16 the occurrence. Similar is the story with other witnesses. P.W.3, Kanhaiya Lal Gupta, also appears to us not an eye witness when we consider his evidence in paragraph 8. He stated that his father and brother ( P.W.4) were assaulted as soon as they reached the shop of his Nana, that is, Basantu Prasad. He further stated that on particular day, there was no occurrence on his shop and since when the quarrel was going on at the shop of his Nana, he cannot say. He did not know about the quarrel as to when it started. In view of the above evidence of P.W.3, it could not be said that he was an eye witness to the occurrence. In earlier paragraph 2 he claimed to be an eye witness who had seen each and every incident happening before him. We have already discussed the evidence of P.W.4 and the reason as to why he could not be said to be an eye witness. Besides that, we want to enforce our reasons as to why he should not be a trustworthy witness. It was the statement of P.W.4 which is Exhibit-3 and that is the basis of the first information report. He stated in paragraph 5 of his evidence that the Sub Inspector of Police did not record his statement and merely obtained his signature on a plain 17 paper. He further states in paragraph 10, while being cross-examined on the above fact, that he had got the statement read over and explained to him but he cannot say as to when this statement was read over and explained to him. He admitted that the signature on the statement was his. He further stated that the Sub Inspector of Police had committed many acts of dishonesty. One such act was cited as an instance as may appear from paragraph 6 of his evidence when he stated that his injuries were seen by the Sub Inspector of Police but he did not issue any injury certificate. As such, he claimed himself being treated in a hospital. We have pointed out at some earlier stage of the judgment that the criticism of the evidence was that neither the doctor examining the injured nor the injury reports were produced in support of their claim that they were injured. In paragraph 10 and onwards he stated that he can say as to what dishonesties were committed by the Investigating Officer and also that the first information report had been dishonestly recorded by him was also highlighted by filing the protest petition by his mother, P.W.2. A question was put to P.W.4 as to what was the 18 number of the accused persons in the first information report and in the protest petition, Exhibit-8. P.W.4 replied that he cannot say exactly as to what was the number of the accused persons in Exhibit-8, the protest petition. We ourselves looked into the document and we find that the number of accused persons were confined to seven in the first information report. There was no scope left for adding up any further name to it, but there was the 8th accused in the protest petition and she was Kishoria Devi wife of Baidya Nath Prasad. 15. We are inclined to take a view that if a witness is going to such a height as to implicate a lady who was never named and was neither suspected to have a hand in the quarrel, then it is always dangerous to place reliance on such evidence. 16. P.W.5, Sarbjit Prasad Gupta, has been admitted by all witnesses to be present inside the shop of Basantu when the deceased was being assaulted by his assailants. P.W.5, Sarbjit Prasad Gupta, has not named any of the accused persons. He has not said as to who had done what act. We find from the consideration of the 19 evidence on record that not only the initial prosecution version has been given a go bye but the witnesses who have been examined, appear not making a statement; specially that part of it which had created a new story before the Investigation Officer which discredits their credibility. The doctor has not been examined. The Investigating Officer could have the best person to prove as to what was the initial statement of each and every witnesses who had suggested that they had no knowledge about the non-examination of the Investigating Officer appears not only an infirmity in the prosecution case which goes to its very root but appears also causing prejudice to the defence. 17. We, after considering the evidence and the contention and after having discussed them as above, feel that the prosecution has failed in proving the charges to the hilt. Appellants deserve to be acquitted on account of giving benefit of doubt. We, accordingly, extend that benefit to the appellants whose appeals had not abated. The four appeals are, accordingly, allowed. The appellants are acquitted. The sentences passed against each of them 20 are hereby set aside. The appellants in the four appeals, who are on bail, shall stand discharged from the liabilities of their respective bonds. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High Court, The 26th April, 2010, AAhmad/(AFR).