IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.90 of 2005 ======================================================= Against the judgment of conviction and order of sentence dated 23rd December, 2004 passed in Sessions Case No. 127 of 2002 by Sri Bijoy Prasad Poddar, IInd Additional Sessions Judge, Banka. ======================================================= BAL GOVIND SINGH SON OF LATE PANCHU MARAR @ LATE PANCHU PRASAD SINGH, R/O VILL- RAMPUR TOLA P.S.- RAJOUN, DISTRICT- BANKA……………...... ........... APPELLANT VERSUS STATE OF BIHAR... .............................................. RESPONDENT ====================================================== Appearance : For the Appellant/s :Mr. Yogendra Pd. Sinha, Advocate Mr. Nirmal Kumar Sinha-3, Advocate Mr. Arun Kumar, Advocate For the Respondent/s :Mr. Ashwini Kumar Sinha, APP ======================================================= CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA And HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) The appellant named above has assailed the judgment of conviction and order of sentence dated 23rd December, 2004 passed in Sessions Case No. 127 of 2002 by the learned 2nd Additional Sessions Judge, Banka whereby he was convicted under section 302 IPC and section 27 of the Arms Act and he was sentenced to undergo rigorous imprisonment for life under section 302 IPC and three years under section 302 IPC. It was ordered that both the sentences shall run concurrently. 2. The fard-beyan (Ext. 3) of Lacho Devi (PW 2) was recorded at 11.30 hours on 26.3.2011 in village Amdaha by P. K. Sinha, Sub-Inspector of Police of Rajaun Police Station. She alleged that in the night of 25th May, 2001 at 8.00 P.M. she was Patna High Court CR. APP (DB) No.90 of 2005 dt.16-09-2011 2 sleeping along with her husband and children in the Verandah. At that time a lantern was giving light. At about 9.00 P.M. she heard a sound and saw accused Bal Govind Singh armed with pistol on the Verandah, near the cot of her husband. Suddenly Bal Govind Singh fired twice on her husband, and thereafter he ran away. The informant saw that there were other persons outside her house but they could not be identified as night was dark. The informant’s husband died. On her cry, the villagers and her family members came to the place of occurrence and the informant disclosed about the occurrence to them. The motive for the occurrence was that her husband was running small grocery shop and the accused Bal Govind Singh had purchased was taking articles on credit, on demand, he refused to pay the price of the articles. When the deceased complained, then he was murdered. Fard-beyan resulted in Rajaun P.S. Case No. 70 dated 26.5.2001 under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act. After investigation chargesheet was submitted and the case was committed to the Court of Sessions where charge under section 302 IPC and 27 (3) of the Arms Act was explained to the accused to which he pleaded innocence and trial proceeded. 3. The defence of the appellant was of false implication on account of enmity from before in connection with Rajaun P.S. Case No. 26 of 1998 and Complaint Case No. 1045 of 1998. Patna High Court CR. APP (DB) No.90 of 2005 dt.16-09-2011 3 4. In order to prove the charges the prosecution has examined 18 witnesses. They are Company Rajak (PW 1), Lacho Devi (PW 2), Rajesh Rajak (PW 3), Bhaso Rajak (PW 4), Germani Rajak (PW 5), Manhori Yadav ( PW 6), Manohar Harijan (PW 7), Muni Lal Rajak (PW 8), Prakash Mandal (PW 9), Anil Rajak (PW 10), Siyaram Singh (PW 11), Gopal Prasad Singh (PW 12), Aklu Rajak (PW 13), Munna Mandal (PW 14), Chakradhar Prasad Singh (PW 15), Dr. Sushil Mandal (PW 16), Nawal Kishore Yadav (PW 17) and Pramod Kumar Sinha (PW 18). Out of them PWs 6, 7, 9, 10, 13 and 14 were declared hostile. PWs 1, 4, 5 are the brothers of the deceased and they come to the place of occurrence, after the accused persons escaped and they were told about the occurrence by PW 2. PW 3 is the son of PW 2. PWs 11, 12 and 15 have supported the factum of killing of Bajrangi Rajak in the night but they have given a different version of the occurrence, by stating that PW 2 has not disclosed the name of the assailant to them. PW 17 is a formal witness. PW 18 is the Investigating Officer. PW 16 is the Doctor who has conducted post mortem upon the dead body of Bajrangi Rajak on 27.5.2001 and has found (i) lacerated penetrating wound on the right postero and lateral side of the head in size ½” x ½”. It extends anterioly. The external jugular was injured on the right side and (ii) Lacerated penetrating wound with blacken margin was present above the chin in size ½ x ½”. Near this wound, small part of mandible bone was broken and lost. All the lower incisor Patna High Court CR. APP (DB) No.90 of 2005 dt.16-09-2011 4 teeth and canine teeth were broken. Injuries were corresponding to each other and it was caused by fire arm. Therefore, from the opinion of the Doctor PW 16 it is apparent that the deceased Bajrangi Rajak received one fire arm injury and he had no other injury. 5. PW 2 is the sole eye witness to the occurrence. She stated that she was sleeping along with her son and her husband was also sleeping nearby. At that time lantern was burning in the verandah. She heard some sounds and saw the miscreants, she noticed that Bal Govind was present there and was carrying a pistol. Before PW 2 could say a word, Bal Govind fired twice upon the informant’s husband Bajrangi Rajak and after firing twice he escaped. Others who were present in the vicinity could not be identified. After occurrence PW 5 and others came to her house and the informant detailed the occurrence to them saying that Bal Govind had killed her husband. She has stated that her husband was running a small Grocery shop and Bal Govind had refused to pay the amount which was to his credit and when the demand was raised, then her husband has been killed. 6. PW 3 is a child witness and at the time of occurrence he was sleeping with his mother, PW 2. He has stated that he was sleeping on a cot along with his mother. His father was on a different cot. Bal Govind fired upon his father and thereafter, PW 3 got up. Later on Bal Govind fired a second Patna High Court CR. APP (DB) No.90 of 2005 dt.16-09-2011 5 shot upon Bajrangi Rajak and ran from the place of occurrence. He has supported the entire version which has come out through PW 2 regarding manner of assault by Bal Govind to Bajrangi. 7. Other witnesses are not of any use either to the accused or to the prosecution because they have not supported any part of the occurrence and some are either hearsay while others have been declared hostile. Therefore, the prosecution is basing its version entirely upon the depositions of PW 2 and 3. Their evidence is consistent that due to firing of two shots Bajrangi Rajak had died. The post mortem report (Ext. 1) reveals another version of the occurrence and according to it, Bajrangi Rajak (deceased) has only one ante mortem firearm injury. The Investigating Officer who has been examined later on, on the direction of this Court has not explained the inconsistencies between the evidence of eye witness as well as the post mortem report. On the other hand the Investigating Officer, PW 18 has stated that he was told by the witnesses Muni Lal Rajak (PW 7), Manhori Yadav (PW 6), Siya Ram Singh (PW 11) and Gopal Singh that some unknown persons had shot Bajrangi Rajak and they further stated before the Investigating Officer that PW 2 did not divulge that firing was made by Bal Govind Singh. Therefore, there are major contradictions between the account of the informant and other witnesses as well as the Investigating Officer and the account given by the doctor who has conducted post mortem examination and has found only one fire arm Patna High Court CR. APP (DB) No.90 of 2005 dt.16-09-2011 6 injury. The manner of assault thus remains clouded with disputed version of the occurrence. 8. Another aspect which has to be considered in this case is that the occurrence was of the night and identification according to the informant, was possible because of lantern light. Informant PW 2 in her evidence (Para 12) initially stated that lantern was taken away by the Officer in-charge but she later on resiled from her statement and has stated that the lantern was not seized by the Investigating Officer. The duty was upon the investigating Officer to ascertain the source of identification but the I. O. has remained silent and he has not even investigated upon this aspect as to how the accused was identified in the dark night. Non-seizure of the lantern creates doubt regarding the manner of identification. These contradictions are compounded by another aspect of the case. The occurrence is at the night of 25th May, 2011 but the formal FIR has been registered on 26th may, 2001. Section 157 Cr.P.C. emphatically asserts that the matter should be immediately reported to the Magistrate taking cognizance. The purpose of Section 157 Cr.P.C. is that the Magistrate taking cognizance is made aware immediately about the registration of the case and the purpose of this section is that the Magistrate should remain in control of the investigation. With this purpose this section has been brought in the statute. The word ‘forthwith’ requires immediate compliance of the mandate. If the FIR was registered Patna High Court CR. APP (DB) No.90 of 2005 dt.16-09-2011 7 on 26.5.2011 then it was required for the I. O. to send it to the court either on that date or on the next date but surprisingly the FIR was seen by the Chief Judicial Magistrate on 29.5.2001. This delay coupled with the contradictory versions between the eye witnesses and the post mortem report gives fatal blow to the prosecution version regarding the manner of assault and identification of the accused. The examination of PWs 11, 12, 15 and 18 has further compounded this because they have given another version of the occurrence by saying that when they went to the place of occurrence immediately on hearing the sound of a gut shot and met with PW 2 then they were informed by her that offence was committed by some unknown person. These inconsistencies create a doubt regarding the prosecution version of the occurrence. On such evidence order of conviction cannot be said to be justified. Accordingly, we are of the view that the prosecution has failed to prove its charge against the appellant beyond the shadow of all reasonable doubts. 9. In the result the judgment of conviction and order of sentence is set aside and this appeal is allowed. The appellant is in custody. He is directed to be released forth with if not wanted in any other case. Sheema Ali Khan, J.: I agree. (Shyam Kishore Sharma, J.) (Sheema Ali Khan, J.) Patna High Court, Patna Dated 16th September, 2011 Avin/N.A.F.R.