CRIMINAL APPEAL No.289 OF 1989 Against the judgment of conviction and order of sentence passed by Additional Sessions Judge (I), Barh, Patna in Session Trial No. 769 of 1987 dated 11.04.1989. Pappu Singh alias Banna, S/o – Hriday Singh, resident of village Baba Asthan (Bahadurpur) P.S. – Athmalgola (Barh), District – Patna. ------- Appellant. Versus The State of Bihar -----------------------Respondent. ***** For the Appellant : Mr. Bimal Kumar, II, Advocate, For the State : Mr. Ajay Mishra, Additional Public Prosecutor ****** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ******* Akhilesh Chandra, J. The solitary appellant Pappu Singh @ Banna charged under Section 302 of the Indian Penal Code and 27 of the Arms Act for allegedly committing murder of deceased Janardhan Singh on 1st of May 1986 has preferred this appeal assailing his conviction for the aforesaid offences and order of sentence to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and rigorous imprisonment for three years under section 27 of the Arms Act awarded by learned 1st Additional Sessions Judge, Barh, Patna on 11.04.1989 in Sessions Trial No. 769/1987. 2. In spite of repeated calls none turned up to represent the appellant. We found no other option but to accept offer of Sri Bimal Kumar No. II, Advocate, to represent the appellant as amicus curiae. Consequently he 2 was appointed on 24.02.2011, and made all his endeavours to represent the case of the appellant to the best of his capacity. 3. The prosecution case, in short, as reveal from Ext.3, the fardbeyan of Arun Kumar (P.W.5) son of the deceased Janardhan Singh recorded on 01.05.1987 at 12.45 P.M. in the field of Ganesh Ram of village Dakshini Chowk, Bahadurpur (place of occurrence) by Sri Krishnadeo Prasad (P.W.9) Officer-in-charge of Athmalgola Police Station, is that at about 8.45 P.M. the deceased on his bicycle proceeded for home from Athmalgola station. The informant along with Tarun Singh (P.W.1) and Sheo Kumar Singh (P.W.3) were also just behind him on foot and since there had been some rain, deceased was passing slowly when the deceased arrived in the field of Ganesh Ram situated south east of an orchard near Athmalgola station he was intercepted by three persons including the appellant in the flash of torch by these witnesses, they could identify one of the interceptors as the appellant having pistol in his hand with two unknown also having same weapon. The informant questioned “Pappu Singh yeh kya kar raha hai” soon thereafter the appellant shot at the chest of the deceased who met an unsuccessful attempt to leave the place even after being injured but fell down after proceeding a few steps. The informant and his associates could do nothing due to fear of the armed miscreants who fled away towards 3 north. The reason behind the occurrence as stated in fardbeyan is that the appellant used to stole coal and dynamo belt of railway and sell the same which was objected by the deceased who was also once instrumental in arrest of the appellant, on alarm from station at village side several persons arrived. The fardbeyan was also witnesses by Sheo Kumar Singh (P.W.3). On the basis of Ext.3, formal First Information Report (Ext.2) against appellant and two unknown was instituted under section 302/34 of the Indian Penal Code and 27 of the Arms Act. After investigation police submitted charge sheet against the appellant. On taking cognizance, case was committed to the court of sessions and the trial commenced in the manner aforementioned. 4. In order to substantiate its case, the prosecution has examined altogether 10 witnesses, out of whom besides the informant Arun Kumar (P.W.5), Tarun Kumar Singh (P.W.1) and Sheo Kumar Singh (P.W.3) are the eye witnesses, Anil Kumar Singh (P.W. 2), Lalan Prasad Singh (P.W. 4), Pramod Kumar Singh (P.W.6), Ram Sagar Singh (P.W.7) are the persons getting details of the occurrence through the eye witnesses and also witnessing seizure list, inquest report etc. Dr. Pancha Nand Das (P.W.8) held autopsy and proved post mortem examination report (Ext.2), Krishnadeo Prasad (P.W.9) is the Investigating Officer and Lalan Paswan (P.W.10) is a 4 constable brought material Exhibits from Malkhana. Apart from the above ocular evidence, prosecution has produced the following documentary evidence: Exhibit 1 to 1/5 : Signature Exhibit 2 : Carbon copy of P.M. Report Exhibit 3 : Fardbeyan Exhibit 4 : Formal F.I.R. Exhibit 5 & 5/1 : Seizure list Exhibit 6 : Inquest report Exhibit 7 : Challan M. Ext. I and I/1 : Torch M. Ext. : Catridge 5. Neither oral nor documentary evidence has been placed in defence, which as appears from the trend of cross examination and suggestion given to the witnesses is false implication of the appellant and the deceased might have been killed by some one else due to political and other rivalries in otherwise manner. But, on the basis of the aforesaid materials the trial court finding the charges against the appellant proved, hold him guilty and sentenced, giving rise to instant appeal. Now it is to be seen whether the prosecution has substantiated the charges against the appellant beyond any shadow of reasonable doubt or the finding of the trial court needs interference. 6. Tarun Kumar Singh (P.W.1) examined in court on 1st August 1988 has come to say that on 01.05.1987 at about 8.45 P.M. he along with Sheo Kumar Singh (P.W.3) and Arun Kumar (P.W.5) the informant, was returning to house from Athmalgola railway station and when 5 they trio arrived near an orchard in village Bahadurpur, deceased Janardhan Singh co-villager crossed them on his bicycle though running slowly due to rains just before when he proceeded for 15-20 steps and reached in the field of Ganesh Ram he was intercepted by three persons, out of whom, he could identify appellant Pappu Singh in the flash of torch met by Sheo Kumar Singh (P.W.3) and Arun Kumar (P.W.5). All the three miscreants had pistol in their hands immediately Arun Singh asked “Pappu ye kya kar raha hai” but the appellant shot at the chest of Janardhan Singh who fell down even after taking an U-turn and proceeding for about 8-9 steps of his cycle. The miscreants fled away, alarm was raised and when trio arrived near the Janardhan Singh found him dead. He further stated that the appellant is known to him since before and he was in habit of stoling coal from the train and also cutting dynamo belt which was objected by the deceased causing annoyance to him. This witness has further stated that he was returning from Bazar situated near Athmalgola railway station. This witness was cross examined at length but he was not shaken rather stood the test of lengthy cross examination during which he has also said that the police recorded his statement at the place of occurrence itself at about 10.11 P.M. besides recording statement of P.W.5, P.W.3, P.W.4, P.W.2 and P.W.7 and also said that the police after doing all paper work and taking the dead body in custody brought the same 6 from place of occurrence to a nearby school where besides him and other witnesses police also stayed whole night and brought the body to the hospital for post mortem examination in the morning at about 7.00 A.M. He further admits about the criminal antecedents of the appellant in hurry. He could not spoke in his statement under section 161 of the Criminal Procedure Code. 7. The second eye witness Sheo Kumar Singh (P.W.3) has narrated almost the same story what P.W.1 has stated with minor variation about arrival of one Shailendra Singh (not examined) also on alarm and in cross examination further stated that deceased was shot at by the appellant from a distance of just a two steps and after ½ an hour after arrival of police this witness produced his torch likewise other companion. He too stood all the tests of cross examination. 8. Arun Kumar (P.W.5) the informant, has stated the prosecution case likewise other two companions and further states that within half an hour of occurrence police arrived recorded fardbeyan at the place of occurrence which is marked as Exhibit 2 (subsequently collected as Ext.3) and also handed over some cash and papers and other belongings of the deceased on Jimmenama, prepared seizure list, inquest report etc. He also produced the torch to the Investigating Officer who after doing everything brought the dead body of the deceased near in school campus from 7 where it was brought to hospital in the following morning for post mortem examination. In cross examination this witness accepts that at Athmalgola he had his P.D.S. Shop, wherein his father, the deceased, was also managing the affairs and sale proceeds and other papers were also with him at the time of his death which were handed over to him besides his obstacles etc. on Jimmanama. On subsequent recall he proved Material Exhibits - 1 and 1/1. The two torches and two pellets were recovered from the persons of deceased. From cross examination of this witness also the defence could not brought anything in its favour. 9. Apart from these three eye witnesses, Anil Kumar Singh (P.W.2) arriving at alarm at the place of occurrence soon after the occurrence finding the dead body and blood in huge quantity got detail narration of the occurrence from P.Ws. 1, 3 and 5 witnessed seizure of belongings of the deceased by the police proved his signature (Ext.1) and also signature of P.W.4 (Ext.1/1) and other seizure lists as regard to the torches produced by P.Ws. 3 and 5 to the police, whereupon he and P.W.4 signed as witnesses and proved the same Ext. 1/2 to 1/5. No doubt, in cross examination he admits that in his statement under section 161 of the Code of Criminal Procedure he has not stated about the narration of the occurrence by the eye witnesses aforementioned, but, even his statement on this point comes before the court for the 8 first time it for all practical purposes does not go against the prosecution since the eye witnesses have already stated in detail about the occurrence and he is nothing but an heresay witness, so far occurrence is concerned. 10. Lalan Prasad Singh (P.W.4), another person arriving soon after occurrence on alarm, accepted witnessing on the seizure lists and his signatures thereon respectively Exts. 1/1 and 1/3. In cross examination, para 4, this witness admits bringing of the dead body from the place of occurrence in the nearby school campus where he along with other witnesses and police also stayed whole night and the body was brought to hospital in the following morning from the said school. 11. Pramod Kumar Singh, (P.W.6) has come to say that at the relevant time while he was returning from his sasural to his village home through platform at Athmalgola railway station and soon after arriving near the orchard heard the sound of firing and on alarm “Janardhan Singh ko Pappu Singh ne goli mar diya” immediately arrived at the place of occurrence found the deceased lying dead and just left of him one cycle was also lying. The incident was narrated to him by the three eye witnesses aforementioned, immediately he rushed to railway cabin from where requested to cabin man to inform the police. The cabin man has not been examined and in cross examination, in para 4 he asserts that he stayed in the cabin for about 2 and 1/2 9 minutes and since there was no direct means of communication from cabin to police station, in fact cabin man informed the police through railway station. This part of statement of this witness makes the submission of learned amicus curiae that fardbeyan cannot be treated as basis of the case meaningless, since there is nothing on record to indicate that any definite information regarding occurrence was given to the police station whereas the Investigating Officer, Krishnadeo Prasad (P.W.9) has spoken about hearing of rumour whereon he proceeded to inquire and there is nothing in cross examination of this witness to disbelieve or lending any support to the defence. 12. Ram Sagar Singh (P.W.7) is another person arriving at the place of occurrence on hulla and finding the dead body whose left hand was on the handle of a bicycle nearby. The police prepared inquest report whereon he also put his signature. He further said that the eye witnesses at the place of occurrence itself stated that Janardhan Singh was shot at by Pappu Singh (appellant). In cross examination para 4 this witness admits that after completing all relevant paper work dead body was brought to the nearby school from the place of occurrence. 13. The above ocular evidence appears quite consistent with the prosecution version as regard to time, place and manner of occurrence and besides the assailant Dr. Panchanand Das (P.W.8) on holding autopsy at 8.30 10 A.M. (vide Ext.2) on 02.05.1987, found following ante mortem injury: 1. Oval hole – 2” x 1/2” x chest cavity on the right side of the chest near the right axilla at the level of the 4th right rib – margin of the would was everted and eccymocised – blackening and scorching around the wound. The aforesaid injury according to him was caused by a fire arm, may be a pistol, and it was the entry wound. 2. On dissection found the following : a. Right 4th rib was fractured, b. lacerated would in the right lung, which was through and through the lung, c. A bullet was found in the thorasic cavity which was full of blood. The bullet was sealed by me in a vial. 3. Time lapse till post mortem examination – within 12 hours. 4. The death of the victim was caused, according to him, due to the aforesaid bullet injury leading to shock and hemorrhage. And in his opinion, time lapse since death was within 12 hours caused by bullet injury leading to shock and 11 hemorrhage. He proved post mortem report (Ext.2). In cross examination he said that most probably death of the victim has caused more than 6 hours prior to the post mortem examination but in no way his opinion comes against the prosecution case of death of the deceased at about 9.00 P.M. well within 24 hours of post mortem examination rather finding of blackening scorching around the wound also corroborates the ocular evidence shooting at the deceased from a short distance (two steps). 14. Lalan Paswan (P.W.10), police constable, is a formal witness just brought Material Exhibits from Malkhana and Krishnadeo Prasad the Investigating Officer (P.W.9), speaks about arriving at the place of occurrence at about 10.45 P.M. just on rumour recorded fardbeyan (Ext.3) of the informant P.W.5, sent the same to police station where formal First Information Report (Ext.4) was prepared recorded the further statement of informant, inspected the place of occurrence, found blood in huge quantity and seize the same and also belongings of the deceased prepared seizure lists and also found at the place of occurrence the sign indicating turn of bicycle and also handing over the belongings of the deceased to his son, the informant. On Jimmanana, he also stated that left hand of the deceased was on the handle of bicycle. He further prepared inquest report (Ext.6) witnessed by one Shailendra Singh (not examined) and Ram Sagar Singh (P.W.7) and further in 12 para 4 he stated that dead body was sent to hospital through challan. No doubt, he is silent about shifting of dead body from place of occurrence to nearby school. He further in para 5 said about handing over the torches by the witnesses making seizure list (Ext.5/1). He further proved Exhibit 7. The challan prepared by him in para 10 of his cross examination admits that he did not investigate as regard to alleged criminal incident of the appellant. 15. The learned amicus curiae in spite of his best efforts could not be able to point out any discrepancies in the ocular evidence of the witnesses which further stands corroborated by medical evidence, but while representing the case of the appellant in his best of his capacity, he tried to make emphasis upon us that the prosecution has failed to establish the motive behind the occurrence besides there is inconsistencies as regard to unwarranted shifting of the dead body from place of occurrence to nearby school besides non observation of the provision as contemplated under section 157 of the Code of Criminal Procedure. Since the First Information Report etc. was received in the court on 06.05.1987, whereas occurrence as alleged took place on 01.05.1987, even autopsy was held by 02.05.1987 and there is no explanation offered by the prosecution in this regard. On the other hand, learned Additional Public Prosecutor representing the State submits that in face of unshaken ocular evidence fully corroborated by post mortem 13 examination report. None of the above as pointed out by learned counsel now representing the appellant has any significance. Judicial notice may be taken that place of occurrence was an open field and some time before the occurrence there had been some rain, just for security purpose dead body was brought to nearby school. 16. We have heard at length the learned amicus curiae as well as learned Additional Public Prosecutor and we are of the opinion that since prosecution has been able to prove its case by consistent ocular and medical evidence and all the none official witnesses examined by the prosecution are consistent in their examination-in-chief as well as some though not stated in examination-in-chief, but in reply to learned defence counsel have said that after completing all the paper work meaning thereby right from recording fardbeyan preparing inquest report, seizure list, making post mortem examination report etc., the police taking the dead body under its control brought the same to nearby school from where it was sent for post mortem examination to the hospital in following morning, and over night some of the witnesses besides police party stayed there in the school. There is no material wrong in non- speaking the same by the Investigating Officer in his evidence as P.W.9, no prejudice is caused to the appellant for such security measure adopted by the police. 17. No doubt, prosecution has stated as motive 14 behind the occurrence, criminal antecedent of the appellant which was objected by the deceased who was also once instrumental in his arrest and the Investigating Officer failed to investigate on this point. There is no documentary evidence to support this assertion of the prosecution though private witnesses are consistent in asserting the same. It is true that once motive is alleged by the prosecution, it is its duty to establish, but, at the same time, failure of prosecution in establishing the motive as alleged, looses its significance, if otherwise, on the point of occurrence. The prosecution stood the test and established the occurrence beyond shadow of any reasonable doubt in the manner as alleged. In the instant case, as we have found prosecution has been able to do so. Thus, only on the ground of none investigation on criminal antecedent or non production of any documentary evidence in support of alleged motive, the prosecution case cannot be thrown. 18. Last but not the least, submission of learned amicus curiae though has some substance but again in face of evidence on record establishing the prosecution case, it also does not help the appellant in any manner. It is true that First Information Report was placed before the court taking cognizance on 06.05.1987, whereas fardbeyan was recorded in the night of 01.05.1987 whereon case was instituted on the same day by 23.45 P.M. as required under Section 157(1) of the Code of Criminal Procedure reads as 15 such :- “157. Procedure for investigation – (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender.” (Underlined by me). It was the duty of the prosecution to send the report to the Magistrate empowered to take cognizance forthwith. 19. It is undisputed position of law that the above requirement is mandatory and the delay, if any, 16 caused, is to be explained by the prosecution. The Apex Court in a case Alla China Apparao v. State of Andhara Pradesh reported in 2003 Criminal Law Journal 17, in paragraph 9 while explaining above requirement under section 157 of the Code of Criminal Procedure has said :- “The expression „forthwith‟ within the meaning of Section 157(1) obviously cannot mean that the prosecution is required to explain every hour‟s delay in sending the first information report to the Magistrate, of course, the same has to be sent with reasonable dispatch, which would obviously mean within a reasonable time in the circumstances prevailing. If any delay is caused in sending the same to the Magistrate which the prosecution fails to explain by furnishing reasonable explanation, then ipso facto the same cannot be taken to be a ground for throwing out the prosecution case if the same is otherwise trustworthy upon appreciation of evidence which is found to be credible. However, if it is otherwise, an adverse inference may be drawn against the prosecution and the same may affect 17 veracity of the prosecution case, more so when there are circumstances from which an inference can be drawn that there were chances of manipulation in the first information report by falsely roping in the accused persons after due deliberations.” (Underlined by me). In same sequence another decision of Apex Court in a case Sunil Kumar v. State of Rajasthan reported in 2005 Criminal Law Journal 1402, similar question was considered and in paragraph 13 it is said “13. Great stress was laid on the alleged delay in dispatch of the FIR TO THE Ilaka Magistrate. FIR was recorded on 29.10.1999 at about 11.00 A.M. and reached the Magistrate on 30.10.1999 at about 12 noon. It cannot be laid down as a rule of universal application that whenever there is some delay in sending the FIR to the concerned magistrate, the prosecution version becomes unreliable. It would depend upon the facts of each case. In the instant case as appears from the records the investigation was taken up immediately and certain steps in 18 investigation were taken. Therefore, the plea that there was no FIR in existence at the relevant time has no substance. Additionally, no question was asked to the investigating officer as to the reason for the alleged delayed dispatch of the FIR. Had this been done, investigating officer could have explained the circumstances. That having not been done, no adverse inference can be drawn.”(Underlined by me). 20. Similarly, in the instant case before the investigating officer P.W.9, no question was raised inviting any explanation from him on the point of delay. Whereas, the record further shows that after recording First Information Report and transmitting the same through special messenger as endorsed in column 3 of formal First Information Report (Ext.4). The investigating officer has further issued requisition to the court concerned on 02.05.1987 for issuance of warrant and process against the named accused who as stated in spite of taking steps could not be apprehended. And such requisition also appears placed before the court concerned on 06.05.1987 itself, as evident from