Criminal Appeal (DB) No 371 of 1989 Against the judgment and order dated 26.06.1989 passed by Shri Bhagwan Pd Singh, Additional Sessions Judge VI, Purnea in Sessions Trial No 100 of 1986/118 of 1984. Md Yunus, son of Sheikh Jainul of Village – Madanpur Chand Bhag, P S – Araria, District - Purnea .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr Manindra Kr, Advocate For the Informant : M/s Uday Bhanu Roy & Shashi Priya Pathak, Advocates For the S t a t e : Mr Shiwesh Ch Mishra, APP =========================================================== CORAM: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH) 1 This appeal is by the sole appellant who was convicted by judgment and order dated 26.06.1989 passed by Additional Sessions Judge VI, Purnea in Sessions Trial No 100 of 1986/118 of 1984 convicting this sole appellant under Sections 302/148 of Indian Penal Code (IPC) and sentencing him to life imprisonment for an offence under Section 302 IPC with no separate punishment for the offence under Section 148 of IPC. It may be mentioned here that while appellant was convicted, four other accused persons who were charged under Sections 302/149 of IPC were acquitted in the same trial. It may be noted that in the appeal before us, the informant also appeared and was permitted to assist. Patna High Court CR. APP (DB) No.371 of 1989 dt.06-09-2011 2 2 The prosecution case starts with a Fardbayan of one Zubair Ahmad (PW 6) as recorded by Sub Inspector of Police, Araria Police Station camping at Madanpur. The said statement was recorded on 05.11.1981 at about 9.30 am at Madanpur, Police Station – Araria, District – Purnea. The case, as it appears from the Fardbayan, is that Zubair Ahmad, the informant (PW 6) had purchased about 5 decimals of land. The appellant Md Yunus had also purchased 5 decimals of adjacent land. It is alleged that on 03.11.1981, the informant had constructed a ridge in between the two lands which annoyed the appellant. It is further alleged that at about 8 am on 05.11.1981 when the informant’s father Md Islamuddin was returning to his house after irrigating his field, Md Yunus, the appellant and other accused persons started to assault his father first with hands and feet and then the appellant is alleged to have assaulted his father with a Samath (an implement used for crushing paddy) on the head as a result of which the skull was broken and, with profused bleeding, he fell down. Allegedly, in order to save himself, the appellant then set fire to his own house. Upon cry for help when others assembled, the appellant and other accused persons fled away. In the Fardbayan itself, it is mentioned that the incident was seen by Md Khenhar (PW 1), Sheikh Zahir (PW 2), Md Ilyas (PW 3), Sheikh Sayeed (PW 4) and Sheikh Siddique (PW 5). On basis of the said Fardbayan, as recorded on 05.11.1981 at 9.30 am, the first information report was registered on 06.11.1981 at 10 am at Araria Police Station giving rise to Araria Police Station Case No 465 of 1981 under Sections 147, 148, 323, 325, 307 of IPC. 3 Here, we may point out that the first information report is said to have been witnessed by two persons that is Md Zainul Abedin and Mokid, both residents of the place of occurrence. 4 Here, we would also, at the very outset, note some other Patna High Court CR. APP (DB) No.371 of 1989 dt.06-09-2011 3 important aspects of this Fardbayan and the first information report based thereon. As noted above, the first information report was registered at 10 am on 06.11.1981 and is alleged to have been dispatched to the Court on 07.11.1981. It is now not in dispute that it was first brought on judicial records having reached the Additional Chief Judicial Magistrate, Araria on 16.11.1981 that is after 9 days. It may also be noted here that the two first information report witnesses, as noted above, have not been examined by the prosecution. The Sub Inspector of Police, A P Singh, who recorded the Fardbayan has also not been examined by the prosecution. The Investigating Officer of the case has also not been examined by the prosecution. It may be noted that the Sub Inspector of Police, A P Singh, who recorded the Fardbayan, was later entrusted the investigation of the case as well. There has been no explanation whatsoever offered by the prosecution for non-examination of these material and important witnesses. The signature of the informant (PW 6) on the Fardbayan has been exhibited and marked as Exhibit–2 and the first information report has been marked as Exhibit–7. Fardbayan is Exhibit – 8. 5 It appears that upon the deceased having been grievously hurt, he was immediately taken to Dr S Ahmad (PW 7), Civil Assistant Surgeon, Araria Subdivisional Hospital who prepared the injury report (Exhibit-3) and referred the injured to Purnea Sadar Hospital for better treatment. It may be noted here that if one refers to injury report (Exhibit – 3), it would be seen that it has been prepared on the backside of the requisition as made by the police which has not been exhibited but the injury report though alleged to have been prepared on 05.11.1981 is signed by the doctor himself on 27.11.1981 that is after 22 days next. It appears that once the injured was brought to the Purnea Sadar Hospital for better treatment, he died in the morning of 07.11.1981 and an inquest report was prepared at 9.15 am by the Investigating Officer which has been exhibited as Exhibit-5. It is Patna High Court CR. APP (DB) No.371 of 1989 dt.06-09-2011 4 pertinent to note that a reference to the inquest report would show that there is no mention of any Police Station case number or any such identification number on the inquest report. Neither the informant nor the witnesses in the first information report are shown to be witness to the inquest report. We then come to the post mortem report which has been exhibited as Exhibit-4. The post mortem was then conducted in the morning of 07.11.1981 itself by Dr R N Choubey who was the Civil Assistant Surgeon. The first thing that is noted here again, as in the case of inquest report, there is no mention of police case number rather there is a sign of interrogation with an endorsement of OD slip beyond which there are no details. The post mortem report finds three ante mortem injuries, one on the head, the other broken ribs and the third lacerated wounds on the left upper arm. We have noted this because, as per the Fardbayan, there was only one injury by Samath on the head on which he had fallen down. This becomes significant when we will come to the evidence as deposed in Court by various witnesses. It may also be noted that the body was brought for post mortem by a police Constable Awadh Kishore Yadav who has also not been examined and it is surprising to note that even he could not supply the case number for being written in the column meant for it in the post mortem report. 6 We may also at this stage notice that though the person had died on 07.11.1981, from records, we find that Investigating Officer, for the first time, informed the Court for adding Section 302 of IPC on 23.11.1991. 7 Upon completion of investigation, police submitted chargesheet, inter alia, under Sections 302, 148, 149 and other Section of IPC on five persons that is the appellant and four others. Upon the accused persons pleading not guilty, charges were framed. So far as appellant is concerned, he was charged under Sections 148 and 302 of IPC. So far as others are concerned, they Patna High Court CR. APP (DB) No.371 of 1989 dt.06-09-2011 5 were charged under Section 147 and Sections 302, 149 of IPC. 8 `` In course of trial, prosecution examined 10 witnesses. First six witnesses, as noted above, are all said to be eye witnesses. PWs 1 to 5 are named in the Fardbayan. PW 6 is the informant being the son of the deceased. PW 7 is Dr S Ahmad who has prepared the injury report (Exhibit-3). PW 8 is Dr R N Choubey who conducted the post mortem examination. PW 9 Manki Soren and PW 10 Md Raziuddin are Constables. These two are formal witnesses. PW 9 Manki Soren has proved the inquest report and the entire case diary which was permitted to be exhibited. PW 10 Md Raziuddin has proved the Fardbayan. The defence in the case was that they have been falsely implicated because of previous enmity. It was clearly submitted that the whole case was concocted. We have, thus, to see whether the prosecution has been able to establish its case beyond all reasonable doubts. 9 From the facts above, it would be seen that though the Fardbayan was recorded at about 9.30 am on 05.11.1981, it was registered after more than 24 hours on 06.11.1981 at about 10 am. It is then said to have been sent to the Court on 07.11.1981 but it has been received in the Court only on 16.11.1981. There are no explanations whatsoever given by the prosecution for these inordinate delays. Then we find that the Sub Inspector of Police, who had recorded the Fardbayan and who was later made the Investigating Officer, was not produced for examination by the prosecution without there being any explanation. We then find that there are two witnesses to the Fardbayan, as noticed above, being Md Zainul Abedin and Mokid of the same village where the occurrence took place. They were also not examined. Further, on the inquest report which was prepared on 07.11.1981, upon death of the injured in the Government Hospital, there is no mention of any Police Station case number even though he was admitted to Patna High Court CR. APP (DB) No.371 of 1989 dt.06-09-2011 6 Government Hospital after the case was allegedly registered. In the post mortem report also, there is no mention of the Police Station case number even though the body was brought there by a police Constable. The prosecution has not been able to explain these major and vital discrepancies. 10 In view of the aforesaid facts, in our view, the learned counsel for the appellant is right when he submits that the very foundation of the prosecution case cannot be relied upon. We are of the view that it must be assumed in view of the aforesaid discrepancies that the first information report is not truly depicting the incident. It has been later drafted contrary to what had actually taken place. In this connection, we may refer to the case of Ishwar Singh –Versus- State of Uttar Pradesh since reported in AIR 1976 Supreme Court 2423 and, in particular, what is said in paragraph-5 thereof which is quoted hereunder: “5 … … … Section 157 of the Code of Criminal Procedure, 1898 as well as of 1973 both require the first information report to be sent “forthwith” to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, as Mr Anthony suggested, that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. … … …” 11 we may then refer to the judgment in the case of Arjun Marik and others –Versus- State of Bihar since reported in 1994 Supp (2) SCC 372. There also, in paragraphs-24 and 25 of the reports, with reference to Sections 157 and 159 of the Code of Criminal Procedure, the Apex Court has said that the report of a cognizable offence, registered by the Police, must be sent to the Magistrate forthwith. If there is a delay then it gives time for prosecution to introduce a distorted version after deliberation and consultation. That would throw Patna High Court CR. APP (DB) No.371 of 1989 dt.06-09-2011 7 grave doubt upon the prosecution story. We may also note that this was a case which went from this State and the Apex Court had a word of caution and warning as to the state of affairs prevailing in this State which is quoted hereunder: “25 … … … He submitted that in Bihar State even in murder cases FIR is never sent to the residence of a Magistrate on Sundays and holidays. If that be so, we are afraid such a practice can never be said to be healthy practice which renders the mandatory provision nugatory. If such a practice is prevalent it must be deprecated and it is high time that the authorities concerned should wake up and see that the provisions of Section 157 CrPC are complied with in letter and spirit.” 12 We, therefore, feel that these vital discrepancies were required to be duly explained by the prosecution but regrettably no such effort was made. We may also add that from the circumstances noted above, it is apparent that the Fardbayan cannot be said to have been recorded as mentioned therein. Even so far as the first information report is concerned which, admittedly has been recorded after 24 hours, that is also doubtful. In that situation, we can usefully refer to the case of State of AP –Versus- Punati Ramulu and others since reported in 1994 Supp (1) SCC 590 and, in particular, what is said in paragraph-5 thereof which is quoted hereunder: “5 … … … Once we find that the investigating officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have stopped to fabricate evidence and create false clues. … … …” 13 In view of the aforesaid facts and the law as indicated above, we are of the view that the very foundation of the prosecution case which is the Patna High Court CR. APP (DB) No.371 of 1989 dt.06-09-2011 8 Fardbayan cannot be taken to be the correct version of the incident. 14 On behalf of the informant, it is submitted, with reference to the case of Baldev Singh and another –Versus- State of Punjab, AIR 1996 Supreme Court 372 and the case of State of Punjab –Versus- Gurmit Singh and others, 1996 CRI L J 1728, that first information report is not substantive evidence and it does not require to be a complete anthology of facts. To our mind, there is no quarrel with the said proposition. It is well settled that a first information report is not a substantive evidence. It has to be corroborated and it can be used for contradiction but nevertheless it is the foundation of the prosecution case and if the foundation itself is unreliable or shaken, the superstructure thereon cannot stand. If the very story, propounded in the first information report, cannot be relied on as the truth then no matter what amount of corroboration it may receive from other prosecution witnesses, that cannot treat an unreliable story and make it reliable. It is equally well established that it is not the number of witnesses or corroboration which determines the truthfulness of a case but it is the quality of evidence that is brought on record. 15 Now when we come to the evidence of the prosecution, as led in the Court, we find bigger loopholes. The weapon that is the Samath, which was used for causing the fatal injury, was not seized by the police. The so-called injury report has been signed by the doctor after 22 days. The two eye witnesses, who have signed the first information report, were not examined but five other chance witnesses mentioned in the first information report have been examined and in their examination-in-chief they all have given parrot like statement corroborating the first information report barring PW 5. Most of these so-called eye witnesses could not withstand the cross-examination. In the cross-examination, their admissions create serious doubts about their presence at the place of occurrence Patna High Court CR. APP (DB) No.371 of 1989 dt.06-09-2011 9 when the vital assault was made. For Example, PW 1 categorically states that having heard the cry of the informant that the accused persons have killed my father, he came to the site. He was at that time having tea at a shop at some distance. Thus obviously, he had not seen the assault. Similar are statements coming from other PWs who are all supposed to be eye witness. 16 We have considered the evidence and, in our view, it is unsafe to rely upon the depositions of these witnesses. It is clear that in the first information report, these five names have been introduced as chance witnesses. Taking advantage of the delay, the witnesses, who have signed the first information report as being witnesses to the occurrence, have not been examined but witnesses, who have been named by the informant in seriatim, have been examined who have given consistent corroboration to facts, as alleged, with one major difference. In the first information report itself, it is alleged that there was one blow given by the Samath on the head of the deceased. It appears that in the injury report and the subsequent post mortem report, it came out that there were three injuries on the person of the deceased which included a crushed skull, broken ribs and laceration on sides. In view of these subsequent reports, the prosecution materially improved its story when it came to deposing in Court. The witnesses now, contrary to the first information report, states that the appellant gave three blows on the deceased, one on the head, other on the chest and the third on the side. In the first information report, it is categorically stated that only one blow with Samath was given. This clearly shows that at every stage, the prosecution is improving upon its story which makes it even more suspicious. The suspicion having not been made clear, in our view, it is not satisfactory to rely on their evidence. We may also notice that PW 4, who is supposed to be an eye witness, has clearly reached the place of occurrence after the incident. In his deposition, he has stated that others like PW 3 came after Patna High Court CR. APP (DB) No.371 of 1989 dt.06-09-2011 10 him. Thus, we find PWs 1, 3 and 4 are all people who, in their cross-examination, admit having reached after the incident had taken place. Thus, we find that there is no material corroboration of the facts, as stated in the first information report, rather there has been material improvement in the prosecution version by the time it reached the Court. All these, put together, create serious doubts on the prosecution story. 17 In view of the aforesaid, we are unable to persuade ourselves to hold that the prosecution has succeeded in establishing the case beyond reasonable doubt. In such circumstances, the result is that the benefit of doubt is given to the accused person. While doing so, we may notice another aspect. There were four other accused persons who were tried alongwith the appellant. They were charged under Sections 147, 302/149 of IPC. On the same evidence, the learned trial Court has held them to be innocent and has acquitted them doubting their presence. If that be so then important part of the prosecution story is found to be untrue. We wonder why the other part was accepted for convicting the appellant. 18 Accordingly, we allow the appeal, set aside the order of conviction and the sentence. The appellant would be discharged from his liability of bail bonds. (Navaniti Prasad Singh) Ashwani Kumar Singh, J I agree. (Ashwani Kumar Singh) Patna High Court, The 06th of September, 2011, A F R, M E Haque/ Patna High Court CR. APP (DB) No.371 of 1989 dt.06-09-2011 11