Criminal Appeal (SJ) No. 119 of 1998 ~~~~~~ Against the judgment of conviction and order of sentence dated 30.03.1998 respectively, passed by Sri Baikunth Nath Shahi, learned Additional District and Sessions Judge, Nawadah in Sessions Trial No. 118 of 1996 / 199 of 1996. ~~~~~~ Sunil Yadav, Son of Sri Keshev Yadav, resident of Village – Nawadih, Police Station – Akbarpur, District – Nawada. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ~~~~~~ For the Appellant : Mr. K. P. Singh, Sr. Advocate. Mr. Nand Kishore Prasad No. II, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD The appellant has been convicted for the offence under Section 304 of the Indian Penal Code as well as under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for six years for the offence under Section 304 of the Indian Penal Code and two years for the offence under Section 27 of the Arms Act. 2. The prosecution case in the fardbeyan by the informant Kedar Prasad Tanti is that he heard the sound of firing and ran to the house of Sidheshwar Tanti. He saw his father dead and blood oozing out from his head. Sidheshwar Tanti disclosed that there was quarrel between Chandrashekhar @ Bijali Yadav and Chandrika Yadav. In the mean time, Awadh Yadav intervened to end the quarrel. Subsequently, Sunil Yadav, Lakshmi Narayan Yadav, Tilak Dhari Yadav, Jamindra Yadav, Awatar Yadav, in furtherance of common intention collected on the Kachchi Road in front of the house of Daso Yadav. Sunil Yadav fired at Awadh Yadav on the abetment of Awatar Yadav and Shekhar Yadav to kill but the shot hit at Hiraman Tanti instead of Awadh Yadav and Hiraman Tanti succumbed to injury. The motive behind the occurrence is enmity between Awadh Yadav and Sunil Yadav. 2 3. On the fardbeyan, the First Information Report was lodged and after investigation charge-sheet was submitted, cognizance was taken. The charge was framed under Section 302 of the Indian Penal Code. During the trial 12 witnesses were examined on behalf of the prosecution and one witness examined on behalf of the defence. Out of 12 witnesses P. Ws. 1, 4 and 6 are not the eye-witnesses. P. Ws. 2, 3, 5 and 10 are the material witnesses who claimed to have seen the occurrence. P. W. 7 is the informant. However, in his evidence he also claims to have seen the occurrence. P. W. 9 is the witness of the inquest report. P. W. 8 is the doctor who conducted the post-mortem. P. Ws. 11 and 12 are the I.O. of the case. P. W. 6 is the daughter of the deceased. P. W. 1 is the sister of the informant and daughter of the deceased. P. W. 4 is the uncle of P. W. 10 Awadhesh Prasad Yadav, P. W. 5 is the wife of P. W. 10. P. Ws. 2, 3, 5 and 10 supported the prosecution case that Sunil Yadav fired causing injury to the deceased Hiraman Yadav on the head by which he succumbed to injury. P. Ws. 1, 4 and 6 have stated that on Hulla they went to the place of occurrence and then saw Sunil Yadav fleeing away with the gun. The doctor found the firearm injury and the I.O. found the place of occurrence is near the house of Sidheshwar Tanti. Taking into consideration the evidence of the witnesses the trial court convicted the appellant for the offence under Section 304 of the Indian Penal Code and 27 of the Arms Act and sentenced as mentioned above. 4. Learned counsel for the appellant, however, contended that the occurrence took place on 23.05.1995 and the First Information Report was lodged on 23.05.1995 but the First Information Report was sent and received on 26.05.1995 and hence there is delay in sending the First Information Report, which is in violation of Section 157 Cr.P.C., which indicates or doubts the prosecution case for manipulation and the First Information Report is ante-dated and ante-time. 3 It has further been contended that P.W. 4 in paragraph 5 stated that Sidheshwar Tanti came after his arrival and hence Sidheshwar Tanti is not an eye-witness. P. W. 10 in para 10 has stated that his wife, Musafir Yadav, Sidheshwar Yadav and his neighbours came on Hulla and hence the witnesses have not seen the occurrence. It has further been contended that P. W. 2 in his cross-examination has stated that firing was made from a distance of 15 -20 yards and the I.O., P. W. 12 in his evidence has stated that from the place where the dead body was found the Kacchi road of eastern side is about 100 feet and it was told that Sunil Yadav fired from the eastern Kacchi road and the injury found by the doctor suggest a charred wound of entry blackening and tattooing all around the margin about ¼” in width and hence such injury is not possible from a distance of 15 - 16 yards or 100 feet and hence the prosecution has not been able to prove the prosecution case. Learned counsel for the appellant, however, has strongly relied upon a decision reported in AIR 1956 SC 536. 5. Learned counsel for the State, however, submits that the witnesses have supported the prosecution case and there is nothing in evidence to disbelieve the testimony. Hence, there is no substance in the submissions made by the learned counsel for the appellant. 6. Hence, taking into consideration the respective submissions of the parties, the question for consideration is whether the prosecution has been able to prove the charges. 7. The prosecution case is that there was a verbal altercation between Chandrashekhar @ Bijali and Chandrika Yadav. Awadh Yadav intervened to end the quarrel and then Sunil Yadav fired. The quarrel was at the house of Sidheshwar Tanti and firing was done by Sunil Yadav causing injury to Hiraman Tanti by which he succumbed to injury. However, during the trial witnesses have supported the prosecution case. P. Ws. 2, 3, 5 and 10 claimed to be the eye-witnesses and there is 4 nothing in their evidence to disbelieve the testimony and P. Ws. 1, 4 and 6 have deposed that after the occurrence they heard the sound of firing and having learnt rush to the place of occurrence and found the accused Sunil Yadav fleeing away along with gun. The I.O. has mentioned the description of the place of occurrence and from the evidence of the witnesses, it is apparent that the place of occurrence is in front of house of Sidheshwar Tanti and two road passes in the village which is north to south parallel to each other and the house of Sidheshwar Tanti is in the west of the western road. It has also come in evidence that the two roads which passes in the village is north to south one in the east and one in the west called western road. The one is called western road and other is called southern road. It has also come in the evidence that the house of Daso Yadav is on the east of the eastern road and to the east of the road there is house of Rajesh Mistry and hence the place of occurrence has well been established. P. Ws. 2, 3, 5 and 10 supported the prosecution case that there was quarrel between Chandrashekhar @ Bijali Yadav and Chandrika Yadav, witnesses intervened to end the quarrel and within five minutes Sunil Yadav with other co- accused armed with gun and Lathi came. Sunil Yadav fired causing injury to Hiraman Tanti by which he succumbed to injury. The witnesses P. Ws. 1, 4 and 9 have also supported the prosecution case that they came at the place of occurrence and found Sunil Yadav fleeing away with gun and found Hiraman Tanti in injured state. The evidence of the witnesses found to be reliable and trustworthy. 8. Learned counsel for the appellant contended that P. W. 1 is the wife of deceased and P. W. 4 is the uncle and hence they are interested witness. However, merely because the witnesses are interested, their evidence cannot be rejected but requires to strictly scrutinize. 9. However, nothing has been pointed out in the evidence of the witnesses to disbelieve their evidence except that P. W. 10 in his evidence in paragraph 10 has 5 stated that on his Hulla his wife and other witnesses came to the place of occurrence. However, merely for the reasons the evidence of P. Ws. 4 and 5 cannot be discarded as there is evidence that since before the occurrence there was verbal altercation between the parties. The witnesses are resident of the same area having their residence nearby the place of occurrence. Hence, the possibility of their presence at the time of occurrence cannot be ruled out. It has further been contended that P. W. 6 is the daughter of the deceased and P. W. 1 is the sister of the informant. However, merely because they are related with each other their evidence cannot be rejected or discarded when they have stood the test of cross-examination. 10. Learned counsel for the appellant, however, contended that P. W. 2 in his evidence has stated that the firing was made from the distance of 15 to 16 yards. The I.O. P. W. 12 has stated that he found the dead body near the house of Sidheshwar Tanti P. W. 2 on the side of the western road whereas the eastern Kacchi road is at a distance of 100 feet from the western Kacchi road. P. W. 12 further stated in his evidence that he was informed by the witnesses that the firing was made from the eastern road. Hence, it was submitted that if the firing has been made from a distance of 15 - 16 yards which correspond to 45 to 50 feet as per the evidence of P. W. 2 or from a distance of 100 feet as from the evidence of P. W. 12 the injury as alleged is not possible as there is evidence of doctor that there was blackening and tattooing all around the injury which is only possible from a distance below one yard and has placed reliance upon a decision reported in AIR 1956 SC 536. 11. The argument advanced by the learned counsel for the appellant though attractive but not sustainable. The learned counsel for the appellant has relied upon an evidence of the I.O., P. W. 12 that it was disclosed by the witnesses that the firing was made from the eastern road is not admissible in evidence as this evidence is hit by hearsay. The I.O. is not an eye-witness to the occurrence and whatever disclosed to 6 him by a witness or any other sources is not admissible in evidence unless the person who disclosed comes before the court to depose. The evidence of P. W. 2 that the firing was made from a distance of 15 to 16 yards is only estimation and it is very difficult to asses the distance when there was verbal altercation between the parties and this estimation cannot be taken with a mathematical precision when the witnesses supported the prosecution case that the appellant fired causing injury and the distance of firing having not been established with cogent, reliable and unimpeachable evidence. The evidence of the witnesses cannot be rejected. 12. P. W. 8 is the doctor who conducted the autopsy and found lacerated wound over left side of forehead 1” from the mid line and 1” above the eye-brow or size ¼” x 1” x cavity deep - margin inverted and charred (wound of entry) blackening and tattooing all around the margin above ¼” in width. Bruise over left shoulder or size 2- ½” x 1” in dorsal aspect, on dissection one hole found in left frontal bone of size 1” x 3/4”, blood clots found under the scalp on left size. Brain matter found lacerated over the left side. One metallic object like distorted bullet was found in the brain matter. The time elapsed since death within 24 hours and in cross-examination it has been stated that injury no. (i) skin around the wound was burnt, blackening and tattooing shows that firing was closed range. Close range may be 3 - 4 feet but exact distance cannot be ascertained. Hence, from the evidence of the doctor it shows that there was injury by firearm and injury by close range. However, so far the argument advanced on the basis of the evidence of the I.O. is not acceptable as not admissible in evidence at all. However, the facts and circumstances, reported in decision AIR 1956 SC 536 two plans were proved in the case, one called the side plan prepared by sub-inspector of police and another prepared by the draft men. All the three eye-witnesses stated in their evidence that they pointed out to the Head Constable and the Sub-Inspector and places where the accused was standing when the accused fired by rifle and where the 7 deceased was standing when he was shot and the witnesses stated that they showed two places to him. The distance between the two places is shown as 25 feet. However, under the facts and circumstances it has not been specifically established what was the exact distance of firing between the accused and the deceased and evidence. 13. However, the prosecution case that there was verbal altercation between the parties and there is only evidence that Sunil Yadav fired, the evidence of the I.O. is not admissible in evidence to take into consideration. The evidence of P. W. 2 about the firing from distance of 15 – 16 yard are only a rough estimation which cannot be treated as mathematical precision to disbelieve the witnesses who have deposed and stood the cross-examination about the firing by which the victim succumbed to injury. Hence, the ratio decided in AIR 1956 SC 536 cannot be applied to the facts and circumstances of the present case, whereas in the facts and circumstances of the case reported in AIR 1956 SC 536 the draft men derived information from the eye- witnesses about the places and his evidence read with the map. He prepared plan himself that he measured the distance between the two places and the draft men himself measured and sworn in witness box that the distance shows in the sketch map is correct and hence the decision relied upon by the learned counsel for the appellant is not applicable to the facts and circumstances of the case. 14. However, the learned counsel for the appellant contended that there is delay in sending the formal First Information Report to the Magistrate to take cognizance and hence it is obligatory on the Officer In Charge of the Police Station to send a report of information to the Magistrate forthwith and if the same has not been sent in time then it may be presumed that the First Information Report is ante-dated and ante time and the prosecution case to be looked into with doubt. However, mere delay in sending the First Information Report to the Magistrate under Section 157 Cr. P. C. is only design to keep the Magistrate aware of the form of the investigation so as to be 8 able to control the investigation and if necessary to make appropriate direction under Section 159 Cr. P. C. However, when the First Information Report has been recorded without delay and the investigation started on the First Information Report and there is no other infirmity pointed out or brought to the notice and if the evidence of the witnesses found to be trustworthy and worth of confidence then mere delay in sending the First Information Report cannot lead to an inference that the prosecution version is unreliable or doubtful. However, it only depends upon the facts and circumstances of the each case and unless it is shown some infirmity and defect in the investigation the prosecution case cannot be rejected for mere delay in sending the First Information Report of the cognizance taking Magistrate. 15. Hence, taking into consideration the entire facts and circumstances I find and hold that the prosecution has been able to prove the charges and I do not find any merit in this appeal and hence the order of conviction and sentence is maintained and this appeal is dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 16th November, 2011. N.A.F.R./Kundan.