1 CRIMINAL APPEAL No.216 OF 2003( D.B.) - - - - 1. MURLI SINGH @ YADAV 2. LALMOHAR SINGH @ YADAV … … Appellants Versus THE STATE OF BIHAR … … Respondent Against the judgment and order dated 6.5.2003 passed by Fast Track Court No. I, Buxar, in Sessions Trial No. 144 of 1988 arising out of Koransarai P.S.Case No. 53 of 1986. - - - - For the appellants: Shri. Vindhyakeshri Kumar, Sr.Advocate. For the State: Shri Lala Kailash Bihari Prasad, Addl. Public Prosecutor P R E S E N T - - - - THE HON'BLE MR. JUSTICE C.M.PRASAD THE HON’BLE MR. JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha, J.- The two appellants Murli Singh alias Yadav and Lalmohar Singh alias Yadav were tried along with accused Gupteshwar Yadav for a composite charge under Sections 302/34 of the Indian Penal Code by the Fast Track Court- I, Buxar in Sessions Trial No. 144 of 1988. While accused Gupteshwar Yadav was acquitted of the charge, the two appellants Murli Singh alias Yadav and Lalmohar Singh alias Yadav were found guilty of committing offences under Sections 302/34 of the Indian Penal Code and were directed to suffer imprisonment for life by the Presiding 2 Officer of the above noted court by judgment and order passed on 6.5.2003. The appellants have questioned the above judgment and order of conviction as recorded against each of them in the present appeal. 2. The prosecution case, in short, is contained in Ext.2, the F.I.R., lodged by P.W. 5, Sri Kishun Singh in which he alleged that appellant Murli Singh alias Yadav was digging the earth near the house of deceased Kailash Yadav with a spade. Appellant Murli Yadav had also his land there. The deceased Kailash Yadav forbade him to dig the land. Accused Mahadeo Yadav( since dead) came and started slapping the deceased. Appellant Lalmohar Yadav came there with lathi. It is alleged that appellant Murli Yadav ordered to assault upon which appellant Lalmohar Yadav dealt a lathi blow to the deceased which hit him on his head and Kailash Yadav fell down on the ground in an injured condition. The witnesses who had come there intervened and saved Kailash Yadav and the three accused persons named above ran away from there. Thereafter, injured Kailash Yadav was brought to the hospital who was not in 3 a condition to give any statement on account of being unconscious, as such, P.W. 5 lodged the report. 3. After the case being registered, the investigation was taken up by A.S.I. Shoe Dayal Singh( not examined) of Koransarai Police Station and he submitted the chargesheet sending up the accused and accordingly the accused were tried and convicted as indicated above while one of them Gupteshwar Yadav was acquitted. 4. The defence of the accused was that there was no occurrence in the manner as alleged and the witnesses had falsely implicated the appellants. 5. In support of the charges, the prosecution examined as many as nine witnesses out of whom, P.W. 4 Bijay Narain Rai and P.W. 9 Nagendra Narain Lal are the witnesses of formal character having respectively proved the signature of the Officer-in-charge of the above noted Police Station on the F.I.R. as Ext. 2 and the writing of the case diary being in the hand of A.S.I. Mundrika Prasad Singh and on that account the writing of the whole case diary 4 marked as Ext. 4. As indicated above, the informant Sri Kishun Singh, a Chaukidar, was examined as P.W. 5 for the prosecution. P.Ws. 7 and 8, Janardar Singh and Awadhesh Kumar Singh respectively were the witnesses to the inquest and have proved their signature on the document as Exts. 3 and 3/1. P.W. 1 Chhotak Yadav, P.W. 2 Hira Lal Singh, P.W. 3 Awadh Yadav and P.W. 6 Hira Singh have given eye witness account of the occurrence and appear related to each other as also to the deceased and the informant of the case as per their own evidence. Besides, P.W. 6 Hira Singh is not named in the F.I.R. The Doctor was not examined nor the Investigating Officer of the case came to the witness box to depose to the objective finding recorded by him in the case diary. The defence did not examine any witness. 6. The contention of Shri Vindhyakeshri Kumar, learned Senior Advocate appearing for the appellants, was that the witnesses being related and interested in the prosecution of the appellants and the prosecution having admitted the presence of independent persons at the place of 5 occurrence, the non-examination of independent persons is fatal to the prosecution case. The next contention was that the non-examination of the Investigating Officer is yet another fallacy in the prosecution case inasmuch as the genesis of the occurrence would not be established. The veracity of the witnesses is doubtful inasmuch as they have contradicted each other on the manner of occurrence and participation by the accused persons along with the use of weapon. It is further pointed out by the fact that the Doctor was not examined so as to say that the manner as stated by the witnesses regarding the cause of death was correct. It was contended that it could not be a case to be covered by Section 34 of the Penal Code as there was no premeditation nor any meeting of minds. It was contended that the prosecution failed in bringing home the charges but still if the Court happens to place reliance upon the witnesses to hold that there was indeed an occurrence as alleged then it could not be a case under Section 302 of the Indian Penal Code, rather, it may be an offence falling under Section 304 part II of the Penal Code 6 on account of the element of sudden quarrel and dealing of blow on a heat of passion. Shri Kumar referred to us the evidence of the witnesses on all points as indicated above as also cited certain decisions of the Supreme Court as also of this Court and other Courts. 7. Shri Lala Kailash Bihar Prasad, learned Additional Public Prosecutor, contended that the witnesses were truthful and non-examination of the I.O. does not appear of much consequence as is the case on account of non-examination of the Doctor and that the conviction was properly recorded. 8. On a perusal of the evidence of P.W. 2 in paragraphs 3 and 12, P.W. 3 in paragraph 4 and P.W. 5 in paragraph 11, it appears that Anant, Mangal and Ram Narain were full brothers. Ram Narain had a son Kishore who was the father of Raghubir and Chhotak Yadav P.W. 1. Mangal had also a son Ramprit who had four sons, Awadh P.W. 3, Saryug Yadav, a witness who was dead, Kailash, the deceased of the present case whose son Hira Singh has been examined as P.W. 6 and Ras Bihari Yadav whose son Surendra was a witness but has not been 7 examined as may appear from paragraph 11 of the evidence of P.W. 5. Likewise, the eldest brother Anant Singh had also a son Ram Swarup( vide P.W. 2 Paragraphs 3 and 12) who had three sons, Barak, Sri Kishun( the informant) examined as P.W. 5 and Hira Lal Sigh( P.W. 2). Janardan Singh who had witnessed the inquest and was examined as P.W. 7 appears a related person as may appear from the evidence of P.W. 3 in paragraph 5 who further stated that the deceased and other brothers including P.W. 3 were all joint in mess and business. Thus, the interestedness inter se the witnesses on account of being related to each other could very easily be discerned from the above admitted position. But that by itself could not be sufficient to reject their evidence. The Court has to approach the appreciation of the evidence of the above noted witnesses with care and caution keeping in mind that they might come forward on account of a psychological pressure exerting itself in their minds to ensure that their testimonies are not rejected and are, rather, made basis of convicting the appellants. As such, if any 8 of the witnesses is found making any vital improvement on some important aspect of the prosecution story then reasonable doubt could arise about the acceptability of the evidence of such a witness. 9. The other approach of the Court has to be that it has to keep in its mind the basic prosecution case which is contained in the F.I.R. It is true that F.I.R. is not a substantive piece of evidence and it could be utilized only to seek corroboration of the prosecution story as also for contradicting the maker of the document. However, the importance of this document appears independent of the above utility as per law. The document could be used by the defence to argue as to what was the basic prosecution case and how far the prosecution witnesses have digressed from that particular story so as to improving upon it and thus making their evidence not acceptable or in other words not free from doubt. The First Information Report is a very potent weapon in the hand of the defence so as to basing the veracity and correctness of the evidence of the prosecution witnesses. 9 10. Learned Senior Advocate appearing for the appellants has attempted to highlight as to how the witnesses have improved upon the story which was put down by P.W. 5 while giving his statement Ext. 2. Reference was made by learned counsel to the evidence of different witnesses. P.W. 1 has stated in paragraph 1, that is, in his examination-in-chief, that three accused Mahadeo(since dead) along with the two appellants were standing at the place of occurrence with lathi and that Mahadeo dealt two blows with the weapon on Kailash which was followed by a single blow being administered by appellant Lalmohar Yadav on the head of the deceased. That Mahadeo dealt two lathi blows to the deceased was reiterated again by P.W. 1 in paragraph 12. The above story as given by P.W. 1 has not been supported by any of the witnesses. P.W. 2 has stated in paragraph 10 that when he reached there he found the deceased lying on the ground unconscious and some independent persons, like, Ganga, Deonath and Sudhan were standing there. Initially he had supported the prosecution story that on the orders of 10 appellant Murli Yadav appellant Lalmohar Yadav dealt a lathi blow on Kailash Yadav and Kailash Yadav fell down unconscious. He has not stated that where the lathi blow fell. P.W. 3 has given a story of scuffle between the parties initially on account of the deceased objecting to the cutting of earth. He has also stated that appellants Lalmohar Yadav and Murli Yadav were standing with lathi along with accused Gupteshwar Yadav and on the orders of appellant Murli to assault, appellant Lalmohar dealt a lathi blow on the head of Kailash Yadav. This witness has introduced the story that acquitted accused Gupteshwar Yadav was armed with a farsa and that farsa was snatched by P.W. 3. This was an introduction of a new fact in the prosecution story and as such the improvement thereon. P.W. 5 in his evidence has changed the initial prosecution story as to who had ordered for assault. He has stated that it was accused Mahadeo who ordered to assault and that statement appears contradictory to the basic prosecution case as contained in the F.I.R., Ext. 2. P.W. 6 has given a story that when he reached there 11 on hearing hulla, he found Murli Mahadeo, Lalmohar and Gupteshwar standing there while Murli was having a Kudal in his hand and Lalmohar and Mahdeo having lathi while Gupteshwar was armed with farsa. The witness has stated that appellant Lalmohar dealt a lathi blow on the frontal part of the head of the deceased. This witness has further stated that accused Gupteshwar(since acquitted) dealt a farsa blow on Awadh Sigh, the uncle of P.W. 6 and Awadh Singh(Yadav) snatched his farsa which is again an introduction of a new fact in the prosecution story. Thus, what appears from the above statement is that not only the name of acquitted accused Guptershwar was introduced in the statement of the witnesses, rather, the story of such accused being armed with farsa was also put in by the witnesses. There were improvements on other parts of the prosecution story as regards the number of blows as also the order giver. The witness has stated that the lathi blow given by appellant Lalmohar hit the deceased on his head. There was no specific statement before the court as to which part of the head was hit, but P.W. 6 who is the 12 son of the deceased specified it by stating that it hit the deceased on the frontal part of his head. The Doctor was not examined who could have stated as to what was the nature of the wound and what weapon could have caused it besides as to what were the number of injuries- on which part of the head of the deceased. 11. The learned trial Judge appears noting down in paragraph 17 of his judgment that the contents of the post-mortem examination report were copied in the case diary(Ext.4) and that supported the fact that the injury on the head of the deceased was caused by hard and blunt substance. I have great reservation in upholding the above finding of the learned trial Judge for quite some good reasons, the first being that, as may appear from the above finding of the court below, the post mortem report was copied in any paragraph of the case diary and there is no evidence on record that the original had been lost or destroyed and could not be made available to the court in spite of its best efforts. There is nothing in the judgment or on the record of the trial 13 court that the doctor holding the post-mortem examination was dead or could not be found in spite of best efforts or that his production could have caused inordinate unnecessary delay in the hearing of the case besides incurring unnecessary cost. It is nowhere in the deposition of any witness, specially P.W.9 Nagendra Narain Lal, that the Officer who wrote the relevant paragraph containing the copy of the post-mortem examination report was dead or could not be found and further that that particular writing of paragraph 4 was in the hand of a particular Officer. Besides, what were the contents of that particular paragraph have not been brought on record legally. It could simply be a copy and the evidence on record does not comply with the requirement of law on admission of secondary evidence. In the above light, it appears a finding which is against the evidence on record. As such, I have no hesitation in recording that there was no medical information available to the learned trial Judge and the same is not available to this Court also upon which the manner of assault could be said to be 14 corroborated. There are conflicting stories as may appear from the evidence of P.W. 1 and other witnesses as to what could be the number of blows also and considering that it does not appear safe to say that the prosecution had succeeded in establishing the manner of occurrence. 12. The genesis of the case was that the appellant Murli Yadav came and started cutting the earth of the plinth of the house of the deceased Kailash Yadav. The investigation Officer could have been the person who had visited the place of occurrence and who could have noted down as to what was his objective finding on the cutting or digging of earth in the manner as alleged. He has not been examined and thus the genesis of the occurrence that indeed it was initiated on account of digging of the earth remained to be established. The non- examination of the I.O. appears important more in face of the fact that the F.I.R. itself states that appellant Murli had also his land by the side of the house of the deceased Kailash Yadav. Thus, whether the deceased was cutting or digging his own land 15 remains a question to be answered in absence of non-examination of the I.O. 13. There is ample material on record to indicate that there were persons present at the place of occurrence who saw the occurrence other than those who have been examined by the prosecution. They were independent persons. They have not been examined. Besides, the admitted position is that appellant Lalmohar Yadav was belonging to a family other than that of appellant Murli and appellant Lalmohar had litigated with other accused persons of the case since last 20 years and that litigation was fought up to this Court. This evidence is available in paragraph 20 of P.W. 5, the informant himself. P.W. 6 the son of the deceased has also admitted that the appellant Lalmohar Yadav belonged to another family from that of the other accused persons. The contention as such was that if they were litigating between them then it was simply unacceptable that they will come and join hands in commission of the offence. 14. Thus, On a consideration of the evidence of the witnesses, as discussed 16 above, I find that the prosecution did not prove the charges and there were quite some deficiency in the prosecution case which entitled the appellants to the benefit of doubt. 15. In the result, the appeal is allowed and the two appellants Murli Sigh alias Yadav and Lalmohar Singh alias Yadav are acquitted of the charge framed against them. Appellant Murli Sigh alias Yadav is on bail who is discharged from the liabilities of his bond. Appellant Lalmohar Singh alias Yadav is in custody and he is directed to be released forthwith if not wanted in ay other case. ( Dharnidhar Jha, J.) C.M.Prasad, J.- I agree. ( C. M. Prasad, J.) PATNA HIGH COURT THE 12 NOVEMBER, 2008 Kanth/N.A.F.R.