CRIMINAL APPEAL No.346 OF 1988 *********** (Against the judgment and order of conviction dated 6th of June, 1988 passed by 5th Additional Sessions Judge, Rohtas, Sasaram in Sessions Trial No. 35 of 1980). *********** 1. Bansropan Singh, son of Rak Lagan Singh. 2. Sheomurat Singh, son of Ram Briksh Singh. 3. Bhagwan Koieri @ Bhagwan Singh, son of Basdeo Koieri. 4. Jai Pati Singh @Jaipati Koieri, son of Bansropan Singh. 5. Jaishree Singh, son of Ram Briksh Singh. All are resident of village Nasej, P.S.-Kudra, District-Rohtas. ………..Appellants Versus The State of Bihar ………..Respondent For the Appellants : Mr. B.P. Pandey, Sr. Advocate : Mr. Pramod Kumar, Advocate For the State : Miss Shashi Bala Verma, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH ********** S.K. Sharma & D.K. Singh, J.J. The appeal was initially filed by the five appellants, though, subsequently due to the death of Bansropan Singh/Appellant No. 1 and Jai Pati Singh/Appellant No. 4, the appeal on their behalf has abated. The appellants have challenged the judgment and order of conviction dated 6th June, 1988 passed by learned 5th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 35 of 1980 whereby and whereunder all the accused were convicted under Section 302/149 of the 2 I.P.C. and sentenced to undergo rigorous imprisonment for life. Accused Jai Pati Singh and Bhagwan Singh were also convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. Both the sentences were directed to run concurrently. The prosecution case started rolling with the fardbeyan of Indrasan Koeri (P.W. 9) recorded on 03.06.1979 at 7:30 A.M. at Kudra P.S. to the effect that on 02.06.1979 the informant (P.W.9), his uncle Ramdeo Koeri (deceased) and his cousin brothers Awadhesh Singh (P.W.1), Janardan Singh (P.W.2), Kishori Singh (P.W.3) reached at the western side of the orchard at 8:30 P.M. The informant, his cousin brothers and the deceased slept on a cot outside the chamber. One electric bulb was lighted near the chamber. The informant heard the sound of gunshot firing at 1:00 A.M. in the night when his uncle Ramdeo Koeri (deceased) screamed by saying “Ah Dada Jan Gail” upon which the informant and his younger brothers woke up and saw accused Jaipati Koeri and Bhagwan Koeri armed with gun, Jaisri Koeri, Bansropan Koeri and Sheomurat Koeri armed with lathi and balam, standing there. The informant thereafter raised alarm on which the accused persons fled away towards north. The informant found a hole like injury below the chest of his uncle. The informant claimed that he along with his younger brothers and several other witnesses 3 came to the chamber and saw the dead body. It is also alleged that there was a land dispute between the informant’s side and the accused side, for which there was a litigation in Court, which was decreed in favour of the informant’s side. Due to the said dispute the accused persons came variously armed and killed the uncle of the informant. The informant could not go to the police station due to the apprehension with regard to threat to his life and hence in the morning, when the Dafadar and Choukidar came at the P.O., the informant went to the police station. Two attesting witnesses, Rama Shankar Tiwari and Shyam Sundar Tiwari (not examined) signed on the fardbeyan. Consequently Kudra P.S. Case No. 2(6) of 1979 was registered under Sections 148, 149, 302 of the I.P.C. The F.I.R. was registered on 03.06.1979, whereas the F.I.R. was received in the Court on 05.07.1979. The police, after investigation, submitted chargeheet under Section 302/34 I.P.C. and Section 27 of the Arms Act. After commitment, all the five accused persons were charged under Section 302/149 of the I.P.C. whereas Jai Pati Singh and Sri Bhagwan Singh were also charged under Section 27 of the Arms Act. The prosecution examined altogether ten witnesses of which P.W. 1-Awadhesh Singh, P.W. 2- Keshnath Singh, P.W. 3- Kishori Singh and P.W. 9-Indrasan 4 Koeri (informant) claim to be the eye witness of the occurrence. P.W. 4-Dr. Bhuwan Mohan Singh conducted the postmortem. P.W. 5- is Wakil Dusadh, the Chaukidar, who went to the chamber and found Ramdeo Koeri dead, having fire arm injury and accompanied the informant to the police station. P.W. 6- Ram Suresh Singh and P.W. 7- Dularchand Ram are the seizure list witnesses, regarding seizure of blood stained Tosak(mattress), Ext 2/and 2/1, respectively. P.W. 7 is also a witness to the inquest report, Ext 2/2. P.W. 8 -Jamuna Singh is the witness of production list Ext 2/3. P.W. 10- Satendra Kumar Srivastava is a formal witness who has proved the F.I.R. (Ext 3), seizure list (Ext 4) and inquest report (Ext 5). The defence has also examined two D.W.s of which D.W.1 is Ramnath Singh, a formal witness, who has proved the latter dated 18.01.1988 bearing No. 28 (Ext A) written by Record Keeper, Bhabhua Record Room, Mr. Vijoy Ansari. D.W. 2- Quam Ansari, has proved the certified copy of the petition (Ext B) filed by accused Bansropan Singh in the Court of S.D.J.M., Bhabhua in a proceeding under Section 147 Cr.P.C. Janardan Prasad has been examined as Court Witness No. 1, who has proved the affidavit-Ext E, sworn by Indrasan Koeri (informant) - P.W. 9, in his presence on 11.06.1979. 5 The defence has also exhibited the documents with regard to Sections 133 and 144 Cr.P.C. proceeding between the parties which has been marked as Ext C, C/1, D, D/1, D/2. Learned Trial Court found the accused persons guilty and convicted them on the basis of the evidence of P.W.s 1, 3 and 9. Now this Court has to examine as to whether P.W.s, 1, 3 and 9 have been able to prove the case beyond the shadow of reasonable doubt or the impugned judgment needs any interference on reappraisal of the evidence on record. Admittedly from the fardbeyan itself, it is apparent that P.W.s 1, 2, 3, and 9 did not see the actual firing and it is the consistent evidence of all these witnesses that they woke up on the gunshot firing, when they saw the accused persons standing near the bed of the deceased and when alarm was raised, the accused persons fled away. They found an injury below the chest of the victim, hence the evidence of P.Ws, 1, 2, 3 and 9, to the extent of seeing the accused persons near the place of the occurrence immediately after the occurrence, has to be scrutinized in view of the fact that both sides were on litigating terms from before and the fact that all the eye witnesses are closely related to the deceased. P.W. 1- Awadhesh Singh, who happens to be the 6 nephew of the deceased claims to wake up on the alarm raised by the deceased on receiving the gunshot firing. This witness saw Jaipati Singh and Bhagwan Koeri armed with gun, Jaisri Koeri and Bansropan Singh with lathi, Sheomurat Koeri with balam and on his alarm, the accused persons fled away and the other persons woke up and then he saw fire arm injury on the chest of his uncle, who was already dead. Hence the evidence of this witness only suggests the presence of all the five accused persons at the place of the occurrence but in view of two persons armed with fire arm, it is difficult to suggest specifically as to who fired and since the doctor has found only one injury during postmortem, the accusation against other accused persons who were armed with lathi and balam, can not be corroborated on the basis of the evidence of the doctor. Hence the evidence of P.W. 1 only suggests the presence of accused on the P.O. P.W. 2- Keshnath Singh, who happens to be the son of the deceased has also claimed himself to be the eye witness of the occurrence, but he has admitted that his alias name is Janardan Singh. The claim of this witness has been challenged by the defence during his evidence which has been denied by this witness. P.W.3- Kishori Singh, who happens to be the own brother of P.W. 2- Keshnath Singh, in para 6 of his evidence, has admitted that P.W. 3 are three 7 brothers and the second brother’s name is Janardan Singh whereas third brother’s name is Keso Singh @ Keshnath Singh. From the fardbeyan, it is apparent that P.W. 3 was present at the place of occurrence along with P.W. 1- Awadhesh Singh, P.W. 2 - Janardan Singh, and P.W. 9- Indrasan Singh along with the deceased, hence in such circumstance there was no need of P.W. 2- Janardan Singh to depose by impersonating himself as Keso Singh @ Keshnath Singh, which not only completely discredits P.W. 2 but also discredits the version of the informant, as recorded in the fardbeyan and the version of P.W.s 1 and 3 to the extent that they made improvements during course of deposition, hence it can be said that they did not come to the Court with clean hands. Since P.W. 2 tried to impersonate his brother Keshnath Singh, hence by his own conduct he has jeopardized his credibility. Hence the learned Trial Court has rightly not relied on P.W. 2. P.W., 3 admittedly, also woke up after the firing and he also saw the accused persons variously armed and fleeing away from the place of the occurrence. To this extent, the evidence of P.W. 3 is contradictory to the evidence of P.W. 1, as P.W. 1 firstly found the accused persons standing near the bed of the accused and subsequently on alarm they fled away, but P.W. 3 only saw the accused persons fleeing away from the place of the 8 occurrence and he did not see any accused person firing on the victim. Hence the evidence of P.W. 3 also does not help in any manner in reaching to the specific conclusion, as to who actually killed the deceased. P.W. 9- Indrasan Singh is the informant. He also claimed that at the place of the occurrence he was sleeping with P.Ws. 1, 2, 3 and the deceased and he has also deposed to the extent that Kesonath Singh and Janardan Singh are the two sons of the deceased, hence there is no reason for P.W. 2 -Janardan Singh to depose by impersonating himself as Keso Singh @ Keshnath Singh and saying that his other name is Janardan Singh. This witness also woke up on hearing the gunshot firing and saw Jaipati and Bhagwan Singh armed with gun, Jaisri and Bansropan with lathi and Sheomurat with balam and on alarm of this witness the accused persons fled away. Hence this witness also did not see the actual assailant or the actual assault. In the circumstance when only one fire arm injury has been found on the body of the deceased and two accused persons were alleged to have been armed with firearm, it cannot be ascertained as to who actually fired. Hence, the evidence of P.W. 9 also, does not help the prosecution to reach to the conclusion as to who actually fired. Admittedly, P.Ws. 1 and 9 being nephew, P.W. 2 and 3 being the sons of the deceased, are the only eye 9 witnesses to the occurrence as no independent witness has come forward to support the prosecution case. It is the admitted case of the eye witnesses that the neighboring people came after the raising of alarm, which is evident from the fardbeyan and para 2 of the evidence of P.W. 1, where he admits that co-villagers Sheogovind Singh and Rambarat Singh and others came on alarm at the P.O. but both have not been examined. Similarly, P.W. 2 in para 4 of his evidence has admitted that on hearing alarm Rammurat Singh and Sheogovind Singh and others came at the P.O. Though, P.W. 9 in para 2 of his evidence has stated that Sheogovind, Jaigovind, Kedar and Sheo Jogi came which reflects that all the four eye witnesses named the different persons who reached the P.O. immediately after occurrence, but none of these witnesses who reached to the P.O. have been examined, which clouds the prosecution version. In the fardbeyan, informant P.W. 9 has stated that after the occurrence, P.W. 5 came to the P.O. with whom he accompanied the informant to the police station, but surprisingly, P.W. 5 has not been made attesting witness to the fardbeyan, whereas, Rama Shankar Tiwari and Shyam Sunder Tiwari have been made attesting witnesses to the fardbeyan, who have also not been examined, for reasons best known to the prosecution. P.W. 5 in his evidence has stated that he has not been examined 10 by the police under Section 161 Cr.P.C., nor P.W. 9 ever said about the name of the accused persons, rather he went to the P.O. on his own, where he found several persons present near the dead body. Hence, to this extent, the evidence of P.W. 5 not only contradicts the evidence of P.W. 9, but also discredits the evidence of P.W. 9 and his version as recorded in the fardbeyan. So far as the source of identification of accused persons is concerned, in the fardbeyan, it is stated that the informant identified the accused persons in the bulb light, whereas P.W. 1 in para 9 has stated that the light was on, inside the southern room, whereas P.W. 2 in para 1 has stated that a bulb was switched on outside the chamber, though in para 16, P.W. 2 has stated that the bulb was inside the chamber. P.W. 3 in para 2 admits about the bulb light in the chamber, but the informant in para 28 admits that the bulb was inside the chamber and the door of the chamber was closed. P.W. 1 in para 15 also talks about the chamber, hence in this circumstance, the identification of the accused by the eye witnesses becomes doubtful. The unreasonable behavior of the witnesses not only makes the presence of the P.O. doubtful but also clouds their credibility. P.W. 2 in para 15, P.W. 3 in para 7 and P.W. 9 in para 25 admits that they met no villager while 11 going to the chamber, which makes the claim to be suspicious. The other unreasonable behavior of the eye witnesses is that P.W.9- the informant, in para 34, admits that he did not go to the P.S. in the night, though he gave the excuse for not going due to apprehension of threat to his life, as P.W. 9 in para 26 admits that he, for the first time went to house to change his clothes, in the morning, though in para 34, it is stated that villagers came to see the dead body and thereafter they returned to the village. The informant- P.W. 9, in para 42 has stated that he does not remember whether his statement was recorded by the police subsequent to the institution of the case, which itself makes the credibility of the evidence of the informant doubtful. Admittedly, no independent eye witness or any person of neighbouring area of the P.O. have been examined as witness, except P.W.s, 1, 2, 3 and 9, of which P.W.s 1 and 9 are the nephew of the deceased, while P.W.s 2 and 3 are the sons of the deceased. It is a settled principle of law that it is not necessary for the prosecution to examine all the witnesses as the number of these witnesses only burdens the requirement of proof, but this does not however warrant to rely on the evidence of eye witnesses suffering from various infirmities, which can be relied only if proper corroboration from the other circumstance and independent witness are 12 made. Admittedly, eye witnesses were not only close family members of the deceased but litigation was also going on between the parties, which has been admitted by P.W. 1 in para 18 and 23 by saying that the P.O. land is not the ancestral land of the informant side but it was subsequently purchased and a litigation was going on for the P.O. land. Although, P.W. 3 in para 7, has denied that there was any dispute with regard to the bamboo orchard, but in para 13 of his evidence, he has admitted that there was dispute with regard to P.O. land. P.W. 9, in para 8, has accepted that the accused persons filed the case. Further, P.W. 9 in para 12 has admitted about Section 144 and 145 proceedings and in para 35, about the enmity between the parties. Hence, in view of the enmity between the parties and in the background that the prosecution has relied only on the interested witnesses, the evidence of such witnesses has to be very closely scrutinized. The most formidable evidence of informant is not inspiring confidence. The evidence of the informant, in para 38, where he states that there was no bed on the cot, on which the deceased was sleeping as he was sleeping on a bare chouki(cot), is contrary to the evidence of P.W. 2 in para 20. The evidence of P.W. 6, in para 1, suggests that the blood stained tosak was seized which has been marked as material Exhibit 4, is not merely a simple contradiction 13 but it makes the presence of the informant at the P.O., absolutely doubtful. The presence of P.W. 9 at the P.O. further comes under cloud, when P.W. 9, in para 36, fails to explain the posture in which the deceased was lying and also when he deposed to the effect that he could not see blood at the P.O. due to the darkness of the night. The same not only makes the presence of the informant at the P.O. doubtful, but it also creates doubt on the source of identification at the P.O. P.W. 9, in para 31, fails to state as to for how long the accused kept standing. Apart from that, the evidence of P.W. 9 is contradictory to the evidence of others, as P.W. 9 in para 26 has stated that female members came to the P.O. in the night itself, whereas, the other witnesses have stated that the wife of the deceased came in the morning to the place of the occurrence. Similarly, the other witnesses found the blood stained bed at the P.O., but the same has not been found by the informant. Hence the unreasonableness of the evidence of the informant and the contradictory evidence inter se of the eye witnesses makes the prosecution case doubtful. Admittedly the occurrence took place in the intervening night of 2/3-6-1979, at about 1:00 A.M. and the F.I.R. was registered on 03.06.1979, but it appears that the F.I.R. reached the Court on 05.06.1979. Section 157 of the 14 Cr.P.C. requires immediate transmission of the F.I.R. to the Court. The prosecution has also failed to explain the reasons for withholding the independent witnesses, hence in that view of the matter, we are constrained to draw the adverse inference. Reliance has been placed in the case of Thanedar Singh versus State of M.P. reported in 2002(1) SCC 487 which is based upon the judgment of the Apex Court delivered in the case of Mehraj Singh versus State of U.P. reported in 1994(5) SCC 188. Para 12 of the judgment reads as follows:- “12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the 15 time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the Local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report prepared under Section 174 Cr. P.C., is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8.” The I.O. has not been examined to explain as to 16 why the F.I.R. was not transmitted within the stipulated time prescribed under Section 157 I.P.C. nor the prosecution during trial has given an explanation for the same. Hence in view of the principle laid down by the Apex Court, this Court finds that the delayed dispatch of the F.I.R. is a circumstance which constitutes a legitimate basis for suspecting that the F.I.R. was recorded much later then the said date and time, offering sufficient time to the prosecution to introduce improvements and to embellish and set up a distorted version of the occurrence, as the inquest report ( Ext. 5) does not bear any police case number, which was prepared on 10:30 on 03.06.1979, whereas the F.I.R. was registered in the morning at 7:30 A.M. Hence, this circumstance also suggests antedating/anti-timing of the F.I.R. In the present case, the I.O. has not been examined, which has obviously caused prejudice to the accused. It is a settled law that non-examination of the I.O. is a serious infirmity, which causes prejudice to the accused by depriving them of the opportunity to show the unreliability of the witnesses by proving the inconsistencies and contradictions in their earlier statements made before the I.O. In the present case, though suggestions have been given to the eye witnesses that they have not suggested the name of the accused persons to the I.O., but the said 17 contradictions could not be taken into account in view of non- examination of the I.O. and the contradiction with regard to the availability of the bulb at the P.O., could not also be drawn. Hence, in the present case the non- examination of the I.O. has definitely prejudiced the case of the prosecution. From perusal of the record, it appears that no weapon or fire-arm was recovered from the possession of any of the accused persons, though one pellet was subsequently recovered from the P.O., but the same does