Criminal Appeal (DB) No.105 of 1989 --------- Against the judgment of conviction and order of sentence dated 31st day of January, 1989 passed by Shri Janaki Ram Saran, Sessions Judge, Aurangabad in Sessions Trial No.135 of 1988 --------- Ram Anugrah Narayan Singh @ Birjan Singh, son of Nanhe Singh, resident of village-Manar, Police Station-Daudnagar, District-Aurangabad. –Appellant. VERSUS The State of Bihar -Respondent. --------- For the Appellant : Mr. Kanhaiya Pd. Singh, Sr. Adv. Mr. Sudarsan Sharma, Adv. For the State : Miss Shashi Bala Verma For the Informant : None. ******* P R E S E N T HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH & HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ****** Navaniti Prasad Singh, J. The sole appellant, Ram Anugrah Narayan Singh @ Birjan Singh stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and further convicted under Section 27 of the Arms Act and sentenced to 5 years rigorous imprisonment. The sentences have been ordered to run concurrently by the learned Sessions Judge, Aurangabad by his judgment and sentence dated 31st January, 1989 as passed in Sessions Trial No.135 of 1988. The appellant has been charged with using his licensee double barrel gun for intentionally killing Anup Singh. It may be noted that the appellant was about 50 years age when he was convicted in 1989. The prosecution case as appearing from the first information report (Ext.7) as registered on basis of the fardbeyan of the informant Saraswati Singh (P.W.2) along with Jai Ram Singh 2 (P.W.9), the later being the ‘Samadhi’ of the informant, is that they were sitting at the ‘Darwaja’ of one Dasrath Singh in village Manar, P.S. Daudnagar, District Aurangabad in the morning at 7:30 AM on 14.02.1988. The appellant, Ram Anugrah Narayan Singh @ Birjan Singh was sitting on a chair in front of his ‘Darwaja’. It is alleged that about 2 years back Ram Anugrah Narayan Singh @ Birjan Singh had got a case registered through a co-villager Janardan Singh against Anup Singh, informant’s Nati (grandson) which resulted for final form, accused persons being found innocent therein and since then Ram Anugrah Narayan Singh @ Birjan Singh had been threatening the informant that he would get the informant’s legs cut. They took no notice of the threats. On the fateful day Ram Anugrah Narayan Singh @ Birjan Singh, who was sitting at his ‘Darwaja’, again reiterated the threat of cutting the informant’s legs. The informant told him that he was sitting there and his legs could be cut. Informant then told him not to waste his breath upon which Ram Anugrah Narayan Singh @ Birjan Singh started abusing. In the meantime, the deceased Anup Singh with the informant’s other grandson Raju Singh (P.W.4), who were returning from their mustard field, hearing the verbal altercation came and enquired why were they quarrelling and they should not quarrel. Upon which, Ram Anugrah Singh @ Birjan Singh went inside his house and from the roof thereof shot with his licensee double barrel gun, Anup Singh who was standing thereunder killing him on the spot. Hearing gun shot sound number of villagers assembled. The F.I.R. was registered at Daudnagar Police Station at 9:30 AM, which is 8 KM from the place of occurrence, and was sent by special messenger to the Court and has been seen by the Chief Judicial Magistrate, Aurangabad on 15.02.1988. 3 It appears that on the F.I.R. being registered the police came to the place of occurrence and inquest report (Ext.8) was prepared at 10:30 AM on the same day which was witnessed by two independent witnesses, namely, Bhagwan Singh (P.W.1) and Nawal Kishore Singh (P.W.3) who both independently opined that the deceased was shot dead. It is mentioned that the dead body was lying in a pool of blood at the ‘Darwaja’ of the appellant, Ram Anugrah Narayan Singh @ Birjan Singh. Police thereupon seized the double barrel gun of the appellant, empty cartridge, two live cartridge and gun licence as per seizure list and production cum seizure list (Exts.9 & 10). The firearm was sent for ballistic test, the report of the Sergeant Major, P.W.11 is Ext.6, which mentions that the fire arm was capable of being used and was used. Apparently, soon thereafter the dead body was sent to Aurangabad Sadar Hospital for postmortem which was performed at 2:30 PM on the same day by Dr. Nand Kishore Prasad (P.W.5). The postmortem report is Ext.5 which will be discussed in some detail at an appropriate stage but suffice to note that it noted that rigor mortis had set in. There was a single entry wound of about 1½’’x2’’ above the left eye with the skull bone on the back of the head blown of with a wound of about 6½’’x4’’ . Three pellets were recovered from the bottom of skull and most of the duramatter of the left side of the brain was scattered. The injury was apparently on being shot from top and the cause of death was the fatal injury by gun shot as deposed by the doctor. Upon chargesheet being submitted with large number of witnesses including eye-witnesses the case was committed to the Court of Sessions after cognizance for an offence punishable under 4 Section 302 IPC read with Section 27 of the Arms Act. Charges having been framed under both the aforesaid Sections separately, the appellant pleading not guilty agreed to be tried. In course of trial prosecution examined 17 witnesses in all. P.W.1 is Bhagwan Singh who is one of the witnesses to the inquest. Informant, Sarswati Prasad Singh who is eye-witness also is P.W.2. Prosecution examined Nawal Kishore Singh (P.W.3), Ram Ekbal Sharma (P.W.6), Kaushal Kishore (P.W.8) as eye-witnesses to the occurrence but their names though mentioned in the chargesheet as witnesses is not there in the F.I.R. Raja Kumar (P.W.4) the other grandson of the informant who was with the deceased has also been examined as an eye-witness and is named in the F.I.R. As noticed earlier, Jai Ram Singh, the ‘Samadhi’ of the informant who has also signed the F.I.R. has been examined as an eye-witness as P.W.9. Dr. Nand Kishore Prasad, the Civil Assistant Surgeon, Aurangabad has been examined as P.W.5 being the doctor who conducted the postmortem on the deceased and submitted his report, which is marked as Ext.5. Bhungi Saw (P.W.7) and Lakhan Paswan (P.W.15) have been examined, allegedly, as hearsay witnesses. Bhandari Manjhi, the Sergeant Major, Aurangabad Police Line, who gave the ballistic report Ext.6, has been examined as P.W.11. Five prosecution witnesses have been tendered. The Investigating Officer, Thakur Kamala Prasad has been examined as the last prosecution witness, that is, P.W.17. The Investigating Officer, it is pertinent to note, in his examination-in-chief produced a site map (not to scale) which was marked as Ext.12 and it was contradicted by a carbon copy of a site map prepared by him earlier which formed a part of the police case 5 diary and which was produced in Court by the defence and marked as Ext. A. The importance of this and variation therein will be discussed at appropriate stage. Defence examined five witnesses but at the time of hearing of this appeal before this Court learned Senior Counsel appearing for the appellant, Mr. Kanhaiya Prasad Singh fairly stated that the defence case may not be relevant to be looked into at all as the onus was on the prosecution to establish its case which in his humble submission it has failed to do beyond reasonable doubt. Upon evidence as led by the parties, the trial Court came to the conclusion that the appellant has used his double barrel gun from the roof to fire the fatal shot at Anup Singh who was standing down below and the prosecution story or the genesis of the events was fully established and hence the conviction and the sentence. Mr. Kanhaiya Prasad Singh, learned Senior Counsel appearing for the appellant raised basically two issues. While submitting that the onus is upon the prosecution to prove its case beyond reasonable doubt and the weakness or the otherwise of the defence case cannot be a ground for awarding conviction. He would further submit that if one was to refer to the allegations as made in the F.I.R., the detail evidence of the informant (P.W.2) in course of trial, it would be apparent that the prosecution materially tried to altered the genesis of crime and when further compared with the site maps (Exts.12 & A) the story set up is most improbable. He would then submit that the definite case of the prosecution was that the appellant has used his double barrel gun from the roof of the house at quite some distance on the deceased but the postmortem report showed not 6 only charring mark at the entry site of the wound it was singular leaving three pellets in the bottom of the skull and a wide exit wound blowing of the back of the skull which could only happen when the gun was discharged at a very short distance, from close proximity and not by shooting from the roof at the ground. Elaborating the submissions on the first count, it was submitted that reading the F.I.R. (Ext.7) a clear story is built up that the informant was sitting on a chair infront of the ‘Darwaja’ of one Dasrath Singh facing North and the appellant was sitting on a chair infront of his ‘Darwaja’ facing North and was subjecting the informant to verbal assault and abuse when the deceased intervened and was shot by the appellant who went in the house to the roof and fired upon the deceased standing below. It is further elaborated that in between two, that is, the informant’s position and the appellant’s position, in fact, there was a long Cowshed and another house because of which one could not see across. This is apparent from the site plan as originally drawn by the Investigating Officer which is Ext. A. This site plan, after chargesheet was submitted, was not relied on by the prosecution but the I.O. produced a new site plan Ext.12 where the length of the Cowshed was materially reduced to facilitate the informant and others to allege that they were eye-witnesses. He further elaborates that a reference to the site plan would show that the distance between the two positions was considerable for even verbal altercations and it is for this reason when the informant was examined as P.W.2, he materially improved upon the story as made out in the F.I.R. and now deposed in the Court that the informant was going to sit on the chair infront of the ‘Darwaja’ of Dasrath Singh when the verbal altercation started. He further moved to the ‘Sahan’ (outer 7 courtyard) and approached the appellant who was sitting at ‘Darwaja’ so as to make the prosecution case of being eye-witness of the shooting, which followed, plausible. He further elaborates that P.W.3, P.W.6 and P.W.8 were said to be eye-witnesses were not even named in the F.I.R. and have been brought subsequently to support and give weight to the false prosecution story. If these facts are seen in the totality, it would reveal that the prosecution has tried to build and improve upon the earliest version to make it probable but has not succeeded in fact. Elaborating the second submission with regard to the use of fire arm he submits that the dead body as per the inquest report and the evidence of the I.O. (P.W.17) was found inches away from the ‘Darwaja’ of the appellant. The house was about 12½’ high and had loose brick lining upon the roof of about 2½’ from where the shot was fired vertically downwards. The distance between the barrel and the deceased would not be, thus, less than 6’, if the height of the deceased was about 5’ and the wound so caused would thus have no charring effect. In the distance of about 6’ of the discharge, the pellets would have spread more than a single entry wound of about 1½’’x2’’. There would be no pellets mark on the inner side of the door near the ‘Darwaja’, shot having been fired vertically downwards from the roof, this would clearly falsify the prosecution story in toto about the manner in which and the place at which the deceased was shot and as to credibility of the so called eye witness themselves. Learned Senior Counsel would, thus, submits that if these two things are kept in mind then the whole prosecution story becomes totally suspect without there being any explanation and it 8 cannot be said that the prosecution succeed in establishing its case beyond all reasonable doubts as against the appellant. State, on the other hand, submitted that the fact that the dead body of Anup Singh was found at the ‘Darwaja’ of the appellant not being in dispute, it was for the appellant to explain and give an explanation. It was further stated that it is well established that F.I.R. is not a substantive piece of evidence in itself but corroborative in nature. It is not a complete anthology of the facts but only a report of commission of a cognizable offence and, as such, when the informant (P.W.2) gives details of the events in his deposition in Court as a witness he cannot be said to be improving or changing the prosecution version even if there is a variance as between the F.I.R. and informant’s deposition in Court. That cannot discredit his evidence, especially, when there were other eye-witnesses to the occurrence though not named in the F.I.R. The depositions of the eye-witnesses, who were six in number, were consistent and cannot be disbelieved. Having heard the arguments at length and perused the records, we are of the considered opinion that the appeal must succeed because the prosecution has failed to establish its case beyond reasonable doubt for the reasons indicated hereunder. Before discussing the case on merits, I deem it proper to deal with two legal submissions as made on behalf of the prosecution. It was submitted that F.I.R. is not the complete anthology of the event and details can be supplied in course of the deposition. The proposition is far too broad to accept especially in the facts of the present case. No doubt F.I.R. is corroborative and not substantive piece of evidence and does not have to have all meticulous details. It is information of a cognizable offence, but when a very 9 specific stand is taken therein, which is substantially varied in deposition and the facts are materially improved, there would have to be a good explanation forthcoming for the same otherwise the prosecution version becomes suspect as would be seen in the present case. Secondly, it is said that there are large number of eye-witnesses who are consistent and as such they should not be disbelieved. The answer lies in Section 134 of the Evidence Act. It is not the number of witnesses but the quality that is important. The earliest and definite version of the occurrence is to be found in the F.I.R. which is Ext.7. It is the statement of P.W.2, Saraswati Singh whose grandson Anup Singh has shot and statement is also signed by his ‘Samadhi’, Jai Ram Singh, P.W.9. In that fardbeyan the definite stand taken is that P.W.2 and P.W.9 were sitting on chairs in front of ‘Darwaja’ of Dasrath Singh facing North and the appellant was sitting on a chair on his ‘Darwaja’ facing North. There is no mention therein that as between the seat of the informants and the appellant there is a house of Nawal Prasad Singh and then a long Cowshed extending North-South but this omission by itself in the F.I.R. is not of much consequence because the F.I.R. does not have to have meticulous details. What discredits the prosecution story and the fact of being eye-witness is that when these two witnesses deposed in Court they improve upon the story and materially altered it. In their deposition, they now state that they were approaching the door of Dasrath Singh to sit on chair there and were in the ‘Sahan’, that is, the outer courtyard. When the verbal assault started from the appellant, P.W.2 said that I am coming to you, you can cut my legs and, as such, he walks towards the ‘Sahan’ of the appellant. It may also be noticed that both the witnesses were clearly suggested that this story was not 10 consistent with the F.I.R. or their further statement under Section-161 Cr.P.C. Then the defence confronted the I.O., P.W.17 with the depositions of these two witnesses and their further statement in course of investigation. This clearly shows that not only in the F.I.R. but their subsequent statement had a definite story which was given a go by and materially altered in the Court in course of deposition. The reason is obvious, if one refer to the site map, that is, Exts.12 & A, as noted earlier Ext.12 is the site map as prepared by the I.O. and produced by the I.O. in the Court, the I.O. (P.W.17) admits that it was prepared after completion of investigation and submission of chargesheet as some error was realized in the earlier site map drawn up, which form part of the case diary and which has been produced by the defence and marked as Ext. A. Thus, both Exts.12 & A are documents admitted by the prosecution to be documents prepared by the I.O. at different times. One in course of investigation and other after submission of chargesheet. If we compare the two maps, it is clear that the length of the Cowshed which is running North-South in between the two positions has been reduced to half. It is virtually not in dispute that Ext. A is carbon copy of Ext.12 in which the extended portion of Cowshed is not found. Again, the reason is obvious, as seen from the depositions of the two witnesses in the Court, apparently, having realized that if the informant and the appellant were both sitting at the ‘Darwaja’ respectively facing North then the two were far removed for any conversation and further they could not possibly be viewing each other because of the intervening house of Nawal Prasad Singh and the Cowshed. It is because of this that in their depositions the informant now changed the story to having moved to the ‘Sahan’ and then started moving towards the ‘Sahan’ of 11 the appellant by passing the house of the Nawal Prasad Singh and the Cowshed for establishing visibility to the alleged place of occurrence. In view of being confronted with their earlier statement to the police and in view of the I.O. being confronted with their statement and their deposition, it is clear that was not mere supply of better particulars to the F.I.R. by the deposition in Court but a material improvement or change in the entire set up to buttress the prosecution version of these persons of being eye-witness. The other eye-witnesses being supporting the deposition of these two in contradiction to their own stand in the F.I.R. Thus, if the deposition of being eye-witness of these two prime witnesses for the prosecution is held not to be tenable or reliable the other eye-witnesses with the exception of P.W.4 would also become unreliable. We, accordingly, hold that all other eye- witnesses as well as P.Ws.2 & 9 are unreliable in respect of their claim to eye-witness. Their testimonies in the Court are, thus, to be rejected. Then, I may consider the evidence of Raju Kumar (P.W.4) who is said to have been accompanied the deceased. Suffice to say that he improves the prosecution story by stating that having heard the quarrel between the two parties he and Anup Singh approached the appellant at his ‘Darwaja’ not to quarrel, when the appellant closed the door and went inside while they waited outside. Appellant then climbed on the roof and from there bent down with the gun and shot Anup Singh at an angle. He supports the prosecution story of others like the informant moving outside the house of Dasrath Singh. He as such joins the other witnesses to corroborate the unreliable story set up by the prosecution and, as such, stands equally discredited though an eye-witness. 12 Now Court can consider the aspect of shooting. The postmortem report (Ext.5) shows that rigor mortis had set in. The doctor in his deposition states that rigor mortis has set in partially which fact is not noted in the postmortem report. This apparently is to show that the postmortem was done at a shorter interval of time to suit the prosecution but this Court would not give this much importance to it. What is material in the postmortem report is the charring at the entry point of the wound. Secondly, that the entry point is one singular point of about 1’’x2½’’, there were no multiple entry wounds there and the exist was 6’’x4’’ with three pellets still lodged in the bottom of the skull. Now, it is well settled that in respect of gun shot injury charring occurs at the entry point because of burning of the skin and flesh which is because of the very close proximity as between the gun and the person shot. Here, the definite case of the prosecution is as evident from the deposition of the witnesses and elaborated by the I.O. that the shot was fired from the roof downwards at an inward angle. The roof was 12½’ with further 2½’ of brick lining. Thus, the total height would be about 15’ from the ground. If the height of the deceased is about 5’ the distance from the top, his head would still be 10’ away. It is because of this, the prosecution, to reduce the distance states that the gun was hung downwards. Even if, one accepts that and gives 4’ for the gun to be hung downwards the distance would still be about 6’ as between the barrel and the skull. There cannot be any charring because of firearm injury from this distance. Secondly, we are dealing with a gun shot which is firing multiple pellets. At this distance the pellets start dispersing and it is because of this it would ordinarily be accepted that there would be multiple injury on the entry side of the wound but there is only one with several pellets still lodged 13 in the base of the skull. In other words, the pellets had no time or distance to spread which can only happen if the shot is from a very close proximity. In fact, that is not the case. Thus, it is clear that the postmortem report clearly suggested a very close proximity shot whereas the fact as pleaded by prosecution is that the shot was fired from a distance of at least about 6’ if not more. The other important aspect is that if we see the site map (Ext.12) or for that matter Ext. A, the I.O. admits that on the inner side of the Darwaja (door) of the appellant towards the inner courtyard there were pellets marks. This is totally incompatible with the prosecution story. If the shot was fired by the appellant from the roof downwards and Anup Singh was standing in the courtyard outside the door then how were pellets mark found on the inner courtyard side of the door, this remains totally unexplained. These facts as pleaded by the prosecution make the whole story suspect. Before concluding we must also notice the fact about the use of the particular gun as per seizure and seizure-cum- production list dated 14.02.1988. There were live cartridges, two empty discharged 12 bore cartridge therein as well. P.W.11 is the Sergeant Major, who gave ballistic report Ext.9. In his examination- in-chief he clearly states that the gun and the cartridges live and