CRIMINAL APPEAL No.64 OF 2003 DB With CRIMINAL APPEAL NO. 265 OF 2003 DB ------- Against the judgment and order dated 21st January, 2003 passed by Shri Baleshwar Prasad Singh, Presiding officer, Addl. Court No. 1, (Fast Track Court), Sasaram --------- Kapil Sah @ Kapildeo Sah, son of Sakhi Sah, resident of village – Mednipur, P.S. – Sasaram (M), District - Rohtas ……Appellant (in Cr. Appeal No. 64/2003) Sudarshan Sah, son of Kapil Sah alias Kapildeo Sah, resident of village – Mednipur, P.S. – Sasaram (M), District – Rohtas at Sasaram ……..Appellant (in Cr. Appeal No. 265/2003) Versus The State of Bihar ……………. (Respondent in both the appeals.) ------- For the Appellants : S/s Vikram Deo Singh, Pawan Kumar Singh, Advocates For the Respondents: Shri Abhimanyu Sharma, A.P.P. ---------- P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA & THE HON'BLE SRI JUSTICE RAKESH KUMAR --------- Dharnidhar Jha Rakesh Kumar, JJ. The two appeals arise out of the judgment dated 21st January, 2003 rendered by the learned Additional Sessions Judge I –cum- Presiding Officer, FTC, Sasaram in Sessions Trial no. 92/88 / 380/2002 by which the two appellants, one in each of the two appeals, were found guilty of committing offence under section 302 read with section 34 of the Indian Penal Code and were directed to 2 suffer rigorous imprisonment for life. Besides, appellant Sudarshan Sah who was found guilty of also committing offence under section 27 of the Arms Act while the other appellant Kapil Sah alias Kapildeo Sah was acquitted of that charge, was directed to suffer rigorous imprisonment for three years on that account. The appellants have brought into question the findings recorded by the learned Trial Judge through these two appeals. 2. The prosecution case is contained in Ext. 1, the Fardbeyan of P.W. 5, Sardar Ram who happens to be the son of the deceased Sheo Pujan Ram. It is stated that while the informant and his family members were asleep in the night of 10.2.1987, he picked up the sound of some Kharkharahat on which, his father came out of the room in which he was sleeping, and found the two appellants along with four others to have jumped inside his Angan. Appellant Kapil Sah was armed with lathi whereas appellant Sudarshan Sah was having a pistol in his hand. The deceased cried to the informant to open the door of the room as appellants had come along with the criminals to kill him. The informant opened the doors and his father entered inside it in a hurry. It is alleged that accused persons, thereafter, hammered the doors with Silwat and Musal (both heavy stone and wood materials), as a result of which, the doors were broken and the room was opened. The two appellants along with four unknown are said to have entered inside it and they are further alleged to have hurled abuses on the informant, P.W. 5, his wife, P.W. 4 and the wife of his younger brother, P.W. 2 Ram Daiya 3 Devi and were made to stand in the corner of the room and thereafter appellant Sudarshan Ram shot fire into the head of his father, as a result of which he fell down dead. 3. It is alleged that the two appellants threatened the informant and his family members not to report the matter to the police else they would also be liquidated and after firing a shot again in the Angan all culprits went away. It was alleged that an earthen pot which was kept inside the room, was broken during the incident. 4. As regards the cause of occurrence, it was alleged that the son of appellant Kapil Sah had been murdered and the deceased Sheo Pujan Ram was one of the witnesses on behalf of the prosecution but was not ready to depose against the accused persons of that case. As such, the appellant Kapil Sah had taken a vow to kill the deceased and also of not shaving his beards till he fulfilled his vow. 5. On the basis of Fardbeyan, (Ext. 1), FIR, (Ext. 6) was drawn up and investigation was taken up. It appears that the dead body was sent up for postmortem examination to Dr. A.K. Upadhyaya who found a semi circular penetrating wound on the right side of the forehead with burning of the surrounding skin and the whole circumference of the cranial vault broken into pieces exposing the cranial cavity. The brain matter was also found in pieces and part of the méninges was missing. In the opinion of P.W. 6, Dr. Upadhyaya, the injury was ante mortem caused by some fire arm and was sufficient to cause death in the normal course of nature. It 4 appears further that after finding sufficient material against the accused persons they were sent up for trial by the police, after which the impugned judgment was pronounced. 6. The defence of the appellants was that they had falsely been implicated on account of suspicion. It was further suggested to the witnesses that the deceased was a man of criminal antecedent, even being prosecuted for a charge under section 302 of the IPC and had earned many enemies and any of whom could have done the act. It was suggested to the witnesses that they had falsely implicated the appellants. The appellants further challenged their identification by the witnesses and suggested that the two were not there and the evidence on identification of the appellants was false and incorrect. 7. In support of the charge, the prosecution examined seven witnesses and one court witness, out of whom, P.W. 7, Manik Chand Ram was a witness of formal character who had witnessed the holding of the inquest on the dead body and preparation of the report Ext. 4 as also seizure of two empty cartridges, one from the place of occurrence room and the other from Angan of the deceased and the preparation of seizure memo, Ext. 5. Same is the case of the solitary court witness, Badri Narayan Singh, who proved the writings of the FIR, Ext. 6. Out of the remaining witnesses, P.W. 6, as we have just indicated, is the doctor who held the post mortem examination and prepared the report Ext. 2. P.W. 1 Sheo Prasad Ram is a witness who had not witnessed the incident of breaking open the door, entering the room by the accused persons and killing 5 the decease but has deposed that on hearing the cries of the family members he came there and found that they were all weeping and telling that it were the two appellants who had killed the deceased. As regards P.W. 2, Ramdaiya Devi, she is the wife of the younger brother of P.W. 5 and has presented herself as eye witness to the occurrence like P.W. 3, Tetri Devi who is the wife of the deceased and mother of P.W. 5. Both Sardar Ram (P.W.5), the informant of the case, and his wife P.W. 4, Manbanti Devi have also given eye witness account of the occurrence. 8. We have heard Shri Vikram Deo Singh, learned counsel for the appellants who has, firstly, contended that there was no story of identification or any indication about the source of identification in the fardbeyan but after over three years of the incident, the witnesses, who also appeared not making such statement before the police, made a statement in court that there was an electric bulb burning in the room in question and the witnesses identified the appellant in light thereof. It was contended, by referring to the evidence of different witnesses, that the attention of the witnesses was drawn to their respective statements on the above point and they claimed to have made that statement. That fact would have been proved or disproved by the examination of the Investigating Officer. Besides, the existence of the electric bulb in the place of occurrence room could also have been verified by the police officer who had inspected it. But his non-examination has materially prejudiced the appellants. It was further contended that even if 6 assuming that it could be a circumstance which could be created by the evidence of witnesses, it was incumbent upon the learned trial judge to have put it as a question to the appellant during their examination under section 313 of the Code of Criminal Procedure but a perusal of the recorded statement of the appellants at pages 63 and 64 of the paper book, makes it evident that no such question was put to either of the appellants and still the court below has held that there was sufficient light and the appellants were duly identified therein. It was contended that the whole trial appears vitiated and the factum of identification must not be said to be established. 9. The second point which was raised before us, was the belated receipt of the first information report by the court below. It was contended that the FIR, having been drawn on 11.2.1987 and the place of occurrence being away by 12 kilometers from the court premises, it creates suspicion as to how it took two days to travel 12 kilometers which is a distance covered by macadamized road and railways also. The possibility of concoction, due to deliberation and preparation of the document after consultation, may not be ruled out. It was contended by drawing our attention towards Ext. 2, the post mortem examination report, that the dead body was received at 2 P.M. on 11.2.1987 and the P.W. 6, the doctor, started the post mortem examination at around 4 P.M. but curiously enough, there is no case number or any reference as to in what connection the dead body had been received in the mortuary 7 specially when the FIR had been drawn up on 11.2.1987 at 11.15 A.M. It was contended in this connection that assuming that the Investigating Officer of the case who dispatched the dead body to the mortuary might not have mentioned the number of the case but he must have at least mentioned about the fardbeyan of the informant as a reference material for dispatching the dead body. It is contended that these two circumstances are so telling as to creating the biggest deficiency in the prosecution case and it was onerous upon the court below to have considered them and to have given benefit of doubt to the appellants. 10. Shri Abhimanyu Sharma, learned A.P.P. for the state has done the best he could under the circumstances of the case to convince us that even if the story of presence of an electric light at the place of occurrence is overruled, there could be sufficient evidence appearing from the prosecution case to hold that the prosecution witnesses had the opportunity of seeing the appellants and identifying them. Sri Sharma drew our attention towards the evidence of P.W. 5 in which he has stated that it was a moon lit night and has further submitted that the appellants were very closely standing by the witnesses, while the witnesses were being made to stand in the corner of the room and the appellants being villagers, they must have been picked up by the witnesses correctly. It was further contended that while they had arrived at the scene of the occurrence, they had been observed by the witnesses and that could have given sufficient opportunity to them for identifying them 8 correctly. It was contended that the doctor found the corresponding injuries and the consistency is there in the evidence of witnesses and it was under the above circumstances that the learned trial judge was perfectly writing his judgment. It was contended, lastly, by Shri Sharma that not putting the circumstance of identification of the appellant in electric bulb might not be a circumstance which could be as important as to vitiate the judgment of conviction. 11. While hearing the present set of two appeals, we were taken through the evidence of witnesses, specially, P.Ws 1, 2, 3, 4 and 5 who are not only the family members and the very close relatives of the deceased, but appeared also residing under the same roof of the house. It could not be very easy for a court to reject their evidence by holding that their presence at the place of occurrence could be doubtful. It was the dead of night. They were sleeping after having taken their meals and it could be reasonable for any one to assume that when any such exigency, as has been stated by the informant in his fardbeyan, would have appeared to them, they could have flocked together and there was no wonder that they had flocked together in the place- of- occurrence room. Their competence on that account, we do not doubt, except that they have given up the important part of the story while naming the appellants. They have named and also attributed specific overt acts to the two appellants, but did not whisper a single word as to what had happened of the four unknown persons who were accompanying the two appellants. Besides, what has struck us the most was that it could not be that 9 the deceased was a good Samaritan. The materials available to us on record indicate as if he could be facing criminal charges of committing various offences. One person, as per the statement of P.W. 2, Ramdaiya Devi, had lodged the case of arson against him and the deceased was also facing a murder charge in the court of law. Ramdaiya Devi is the daughter in law of the deceased who was married to his younger son. It is true that the witnesses have denied that the deceased was not facing criminal charges, but we find it coming from the evidence that the deceased was facing multiple criminal charges in more than two criminal cases. He had been an accused indulging in a case of arson in a dwelling house and he had also been charged for committing the murder of one of his villagers. Besides, P.W. 5 also appears being an accused in a case under the Arms Act as may appear from his own evidence in paragraph 10 though he has stated that the case was dismissed. Cases are dismissed on account of various reasons but the fundamental thing remains that one had been an accused for committing criminal act. As we find from the record, the possibility may be that the deceased could be having animus with many others. This is the most important aspect of the case which we have kept in our mind while considering and evaluating the evidence of the witnesses. 12. In the above background, we have proceeded to consider the evidence of identification. It was rightly submitted that Ext. 1 does not contain a whisper about any source of identification being 10 available at the site of incident. In fact, there is no statement in Ext. 1 as to how the appellants or the accused persons were seen and identified. It was after more than three years when the witnesses were being examined in court that P.W. 5 in paragraph 2 of his deposition stated that an electric bulb was burning in his room and he identified the two appellants in the light thereof. His attention appears drawn to the above fact by suggesting to him that he had not made such statement to the Investigating Officer of the case and he was further cross-examined that he had shown the bulb to the Investigating Officer. Similarly, the attention of P.Ws. 2, 3 and 4 was drawn to the above statement of theirs that they had not made such statements to the police. 13. We have appreciated the argument of learned counsel for the appellants and also that of the learned counsel for the state and perused the relevant paragraph 5 of the case diary, which contains the description of the place of occurrence and we find that there is no mention of finding of any electric bulb hanging or being fitted in the room in which the occurrence had taken place. All P.Ws have stated in their evidence that except the room in question other two – three rooms of the house had no such electric light fitted. Thus, we find that the witnesses had improved upon on the most material part of the prosecution story as regards the identification. We further perused the statement of these witnesses and we found that no such statement was recorded in the case diary and we could safely say 11 that there was quite some improvement made by the witnesses as regards the identification of the accused persons in the light. 14. In the light of the serious challenge as we have discussed presently, we feel that it was important circumstance which was necessary to be explained by the accused and the court below ought to have put the circumstance so as to elicit explanation of the two appellants in their respective statements under section 313 of the Code of Criminal Procedure. The non-compliance of the provision of section 313 of the Code of Criminal Procedure on the above point, in our considered opinion, vitiates the trial and the finding of the court below as regards the identification of the appellants. 15. While perusing the case diary, we are also alive to another aspect of the appeal and the submission also, that the doors of the room were broken by being smashed by some heavy stone material. We may point out that the description of the place of occurrence as mentioned in paragraph 5 of the case diary does not find any mention in the evidence of the witnesses. There is no mention of the fact that the I.O. had found the door broken or any such material on the place of occurrence which could be matching in description with that which was allegedly utilized in smashing the door so as to break them open. Witnesses have sated in their evidence that as soon as the deceased and they all had closeted themselves into the room in question, the accused persons hammered the doors to break them open with Silwat and Musal. These are vital facts which 12 appear materially touching upon the prosecution evidence adversely. 16. As regards other the argument on the belated receipt of the FIR, Ext. 6, by the magistrate, it was rightly submitted by the learned APP that the evidence of the I.O. could have been material in clarifying as to what was the reason under which the FIR could be dispatched and as such, was received belatedly by the magistrate. But, was not it the duty of the prosecution to call the witness for putting on this explanation and the explanatory material on the record of the case? Could it take advantage of its own laches specially when we have some satisfactory material to hold that for quite some time the police did not even know as to what was the case registered on that behalf and might be that it was still groping in dark as to what was the story to be placed before a court after satisfying its conscience as regards murder inside the house. Thus, we can say on various grounds and one that some basic record did not bear the number of the case. Inquest report and seizure memo were prepared much ahead of the time the FIR was drawn up but after the recording of Fardbeyan (Ext.1). But, what could be the explanation when one finds that the reference column in both Inquest Report and the postmortem examination report at their top do not bear any reference, even that to the fardbeyan of Sardar Ram. If the F.I.R. had not been drawn up by 2 P.M. or before 2 P.M., it would have been expected that the officer who was dispatching the dead body to the mortuary for postmortem examination, could have 13 put down in the reference column of the dead body challan and the inquest report, the fardbeyan of Sardar Ram and it could have been sufficient compliance to the requirements of law and we could have also got sufficiently satisfied about its compliance. The very postmortem report, which is available on the record and also a copy of which is placed at pages 61 and 62 of the paper book, indicates that the dead body had been received from Sasaram Mufassil Police station in connection with a case, number of which has not been mentioned. The dead body was received at 2 P.M., as indicated above, the same was seen by P.W. 6 at 3.30 P.M. and the examination started at 4 P.M. The very non-mentioning of the case number at the top right hand corner of the postmortem examination report creates a doubt that before 2 P.M. there was no FIR which had been shown drawn up at that time. This could be the reason that we find that the requirement of section 157 of the Code of Criminal Procedure had not been complied with as the copy of the document, Ext. 6, does not appear to be sent to the magistrate ‘forthwith’. We do not want to burden this judgment by citation on the importance of dispatching a copy of the FIR to the magistrate for the purpose of eliminating any possibility of concoction or of false implication. 17. We find it admitted that the deceased had been cited as witness in a criminal trial which was probably going on for the murder of the son of one of the appellants Kapil Sah. The deceased had refused to depose in the trial. It is alleged that the deceased had been threatened by the appellants. The purpose to state these facts 14 is that it is a case purely based on suspicion that it could be the appellant Kapildeo and his son Sudarshan who could have committed the murder of Sheopujan though the possibility exists that it could be many persons who could be settling their personal scores against the deceased for the reasons we have indicated just now. 18. After having discussed the evidence and the probabilities and the defect which afflicts the prosecution case, we are of the considered view that it was a case in which benefit of doubt ought to have been given to the appellants. Accordingly, we extend the benefit of doubt to them. The Judgment of conviction passed by the learned trial judge and sentence inflicted on the appellants are set aside. The two appellants are acquitted after being given the benefit of doubt. Appellant Kapil Sah is on bail. He shall be discharged from the liabilities of his bail bond. Appellant Sudarshan Sah is in custody. He shall be released from custody if not wanted in any other case. (Dharnidhar Jha, J.) (Rakesh Kumar, J.) Patna High Court, The 1st February,2010 NAFR/Anil/