IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.301 of 1989 Against the judgment and order dated 9.5.1989 passed by Sri Aditya Sharan, 1st Additional Sessions Judge, Madhipura in Sessions Case No.3 of 1985. ========================================================== Amrendra Kumar Singh @ Arbind Singh @ Arbind Kr. Singh Son of Durga Prasad Singh, resident of village-Tamote Parsa, P.S.-Murliganj, District-Madhepura .... .... Appellant Versus The State of Bihar .... .... Respondent ========================================================== Appearance : For the Appellant : Mr. Neeraj Kumar, Amicus Curiae For the Respondent : Ms. Shashi Bala Verma, A.P.P. ========================================================== CORAM: HON‟BLE MR. JUSTICE NAVANITI PRASAD SINGH and HON‟BLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HON‟BLE MR. JUSTICE ASHWANI KUMAR SINGH) ----------- 1. When the case was called out, no one appeared on behalf of the appellant to press the appeal even though the appeal has been on the list for considerable period. Mr.Neeraj Kumar, an Advocate who was present in the court, was requested by us to appear Amicus Curiae and assist the court to which he readily agreed. He had received the paper book and ably assisted the court while the appeal was taken up for hearing today. 2. The sole appellant has challenged the judgment and order dated 9.5.1989 passed in Sessions Case No. 3 of 1985 by Sri Aditya Sharan, the learned 1st Additional Sessions Judge, Madhepura convicting him for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life. 3. The prosecution case is based on the oral statement of Chaukidar Chhoti Rishideo (P.W.6) which was recorded on 11.4.1982 at 1.00 2 a.m. by Sub-Inspector of Police, Araria, Binod Prasad Yadav (P.W.18) in village Tamot Parsa regarding an occurrence which is said to have taken place on 10.4.1082 at 7.00 p.m. The informant has alleged that on 10.4.1982 at about 7.30 p.m., while he was at his door, a rumour was afloat in the village that the appellant along with his father had killed his wife by pressing her neck and set her ablaze by sprinkling kerosene oil on her body. It has also come to his knowledge that the dead body was being cremated in the orchard in stead of Gorhiya Ghat, a place where usually funeral takes place. The informant along with Muni Rishideo Chaukidar (P.W.4), Yogendra Yadav (P.W.13), Mahendra Prasad Yadav ( P.W.5), Yogendra Thakur (P.W.10), Siaram Rishideo, Baijnath Rishideo, Ram Khelawan Rishideo, Kameshwar Yadav ( P.W.16) and Jai Jai Ram Yadav (P.W.11) went to the orchard and found twelve named accused persons present there. They were found busy cremating the dead body of the deceased with dry wood and ghee. The informant protested and told them that they had killed the deceased and they were destroying the evidence. He forbade the father of the appellant and told him that he would not allow the burning of the corpse. The accused persons requested the informant to let the funeral process be completed or else they would get implicated in criminal case. The informant did not agree to the request and got the dead body forcibly removed from the funeral pyre. Thereafter the accused persons fled away. The informant has further stated in his fardbeyan that the dead body was left under the control of other persons who had gone together with him in the orchard and he went to the house of the appellant. He came to know from Madan Prasad Yadav (P.W.3) , a servant of the appellant‟s father, Durga Singh, that the deceased was not beautiful and good looking and as such the appellant and his father were not happy with her. The deceased was not having cordial relationship with her 3 husband and father-in-law. At the time of occurrence, Madan Prasad Yadav was at the door of the appellant‟s house. He could notice that the deceased was being beaten in her kitchen by the appellant. He thought that a quarrel was going on as usual between them. Madan Prasad Yadav tried to proceed towards the courtyard but father of the appellant did not allow him. After a few hours, he came to know regarding death of the deceased. He (Madan Prasad Yadav) thereafter raised alarm in the village. The informant has clearly stated in his fardbeyan that he wanted to send information through the Chaukidar Munni Rishideo (P.W.4) to the police station but came to know that Mukhiya had already intimated the police regarding the occurrence and thus Munni Chaukidar was not sent to the police station. The police on its own arrived at the place of occurrence at 1.00 a.m. on 11.4.1982 whereafter statement of the informant was recorded immediately. The police drew a formal F.I.R. under Sections 302 and 201 of the Indian Penal Code on 11.4.1982 at 9.00 a.m. against altogether twelve accused persons including the appellant and his father. The case was investigated by Sub.Inspector of Police, Binod Prasad Yadav (P.W.18), who on conclusion of investigation submitted chargesheet against all the named accused persons under Sections 302 and 201 of the Indian Penal Code. Since the offence alleged was exclusively triable by the court of Sessions, the case was committed to the court of sessions. The appellant and his father were charged under section 302 of the Indian Penal Code and further all the twelve accused persons who were sent up for trial including the appellant were charged under Section 302/201 of the Indian Penal Code. The accused persons did not plead guilty to the charges and claim to be tried. 4. In order to bring home the charges, the prosecution has examined 18 witnesses in all. It is to be noted here that the trial court after 4 holding the trial acquitted all the other accused persons including the father of the appellant namely Durga Singh of the charges levelled against them and the appellant alone was found guilty of the charges under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. 5. Out of 18 witnesses examined in course of trial, Satya Narayan Yadav (P.W.1), Lalan Kumar Jha (P.W.2) and Bishwanath Singh (P.W.12) are formal witnesses. Madan Prasad Yadav (P.W.3), the alleged servant of Durga Singh (father of the appellant) from whom the informant claims to have come to know regarding the actual commission of murder, has been tendered by the prosecution for cross-examination even before he could speak a single line to support the prosecution case. Likewise, Jai Jai Ram Yadav (P.W.11) has also been tendered by the prosecution. Muni Rishideo (P.W.4) and Kameshwar Yadav (P.W.16) have been declared hostile by the prosecution as they did not support the prosecution case in course of trial. Dr. A.Z.Mallick (P.W.17) is the doctor who conducted the postmortem examination on the dead body of the deceased and Binod Prasad Yadav (P.W.18) is the police officer who recorded the fardbeyan and investigated the case at first instance. It is to be noted here that P.W.18 is not the police officer who submitted chargesheet in this case as it has come in evidence that at later stage of the investigation he was transferred from the police station and he had handed over the charge to other police officer. It has also come in evidence that the subsequent investigating officer who conducted part of the investigation and submitted chargesheet was Tarni Prasad. He has neither been examined by the prosecution in course of trial nor any explanation has been given for his non-examination by the prosecution. Choti Rishideo (P.W.6) is the informant of the case. Mahendra 5 Prasad Yadav (P.W.5), Bechu Ram (P.W.7), Mahendra Thakur (P.W.9), Yogendra Thakur (P.W.10), Yogendra Yadav (P.W.13), Upendra Ram (P.W.14) and Ram Sunder Prasad Mandal (P.W.15) are the other witnesses who have supported the prosecution case. Chandradip Singh (P.W.8) is father of the victim. He is a hearsay witness. In his evidence, he has given a new colour to the prosecution case by saying that his daughter was subjected to cruelty for non-fulfilment of demand of dowry by the appellant and his father. In order to support his contention, he has also brought on record some letters which have been marked as Exhibits in this case. 6. Apart from the oral testimony of the witnesses examined on behalf of the prosecution certain document have also been brought on record which have duly been proved and marked as Exhibits. P.W.1 (Satya Narayan Yadav) has proved the formal first information report which has been marked as Ext.1. He is a constable. In cross-examination, he admits that the same was not drawn in his presence and he has no knowledge about the contents of the formal first information report. The fardbeyan has been proved by an Advocate Clerk which has been marked as Ext. 2. He has also proved endorsement of Binod Prasad Yadav, the then officer-in-charge (P.W.18) on the fardbeyan which was marked as Ext.2/1. In cross- examination, he also admits that neither the fardbeyan was recorded in his presence nor he had any knowledge regarding the contents of the fardbeyan. Choti Rishideo (P.W.6) has proved his signature on the fardbeyan which has been marked as Ext.3. Yogendra Thakur (P.W.10) has proved his signature on the seizure lists which have been marked as Exts.4, 4/2 and 4/4. He has also proved the signature of Bechu Ram (P.W.7) on the seizure lists which have been marked as Exts.4/1, 4/3 and 4/5. Bishwanath Singh (P.W.12) has brought on record eight letters which were marked for identification as X/1 6 to X/8. He has also proved the production list and his own signature which have been marked as Exts. 5 and 5/1 respectively. Ext.5/2 is the signature of Chandradip Singh (P.W.8) on the production list. Exts.6 to 6/7 are letters, Ext.7 is carbon copy of the inquest report, Ext.8 is post mortem report of the deceased and Exts. 9 to 9/2 are the seizure lists. 7. The defence is total denial of the prosecution case. It has been contended that the accused persons were falsely implicated in this case. The dead body was being burnt on the funeral pyre but the Mukhiya Ram Sunder Prasad Mandal (P.W.15) set up his supporters who forcibly took out the dead body from the funeral pyre and in that process the body might have suffered fracture injury. The defence in support of its case examined three witnesses. Dr. Smt. B. Rana (D.W.1) is a doctor. She has stated that on 16.01.1982 she was posted as a Civil Assistant Surgeon in Sadar Hospital, Madhepura. On that date, she had examined Smt. Vijay Laxmi Devi (the deceased) and had treated her for irregular menses. She has proved her prescription which has been marked as Ext.A. Shiv Nandan Yadav (D.W.2) claims himself to be „Serpanch’ of Tamot Gram Panchayat. He has stated that he knows Upendra Ram S/o Gonar Ram. Gonar Ram has got no alias name. Gonar Ram has four sons. Upendra Ram S/o Gonar Ram was never employed as a servant of accused Durga Singh who is a very respectable person of the village- Murliganj. He has also stated that there were serious differences between Durga Singh and Ram Sunder Prasad Mandal (P.W.15) with respect to post of Mukhiya. Gonar Ram S/o Moti Ram is D.W.3. He has stated that his brother‟s name is Upendra Ram and his father‟s name is Moti Ram. His brother was a servant in the house of Durga Singh about ten years ago. His brother-in-law is also named Upendra Ram whose father‟s name is Gonar Ram. Thus, the defence as a matter of fact has seriously 7 challenged the identity of Upendra Ram (P.W.14) who was examined on behalf of the prosecution in support of the case. 8. The defence has also relied on certified copy of Ext.B which is the Judgment of the Sessions Case No. 27 of 1947, Ext. C to C/2 are depositions of three witnesses in Sessions Case No. 27 of 1947. The defence has also brought on record a copy of the order dated 14.04.1970 of the High Court which has been marked as Ext.D. Exts. E to E/1 are raiyati khatiyan and Exts. F to F/1 are certified copies of the voter lists. The documents adduced on behalf of the defence are on the point that P.W.15 who is sitting Mukhiya was on inimical terms with accused Durga Singh. On the strength of the documents adduced on behalf of the defence, it has been stated that P.W.15 was the person who set up his labourers in order to implicate the appellant and his father as enmity existed between. Both P.W.15 and Durga Singh (father of the appellant) had filed nomination papers for contesting the election of Mukhiya. The nomination paper of accused Durga Singh was rejected. At least this fact has been admitted even by P.W.15 in his deposition. 9. As noted above, from the first information report itself, it is apparent that prior to the Fardbeyan being recorded, the Mukhiya of the village Ram Sunder Prasad Mandal (PW 15) had already sent information regarding the occurrence to the Police Station. The informant who is also a Chawkidar had reached in the orchard where cremation of the deceased was taking place at about 7.30 pm on 10.4.1982. The investigating officer (PW 18) reached at the place of occurrence at 1 am on 11.4.1982 and certainly the informant had not sent the information to the Police Station. The informant has admitted in his cross-examination that Sheo Narain Yadav who is son of Raghuni Mandal and son-in-law of PW 15 (Ram Sunder 8 Prasad Mandal) had gone to inform the police regarding the occurrence. The Investigating Officer has also admitted in his cross-examination that he might have made a Station Diary Entry 2-3 hours ahead of recording of the Fardbeyan on receipt of information regarding the occurrence. 10. It is contented on behalf of the appellant that the said Station Diary Entry was as a matter of fact the earliest version given to the police regarding commission of a cognizable offence pursuant to which the Investigating Officer proceeded from the Police Station and, thus, it was that information which should have been treated as first information report. The subsequent Fardbeyan recorded at about 1 am on 11.4.1982 was as a matter of fact, according to the appellant, the statement reduced into writing under Section 161 (3) Cr.P.C. and the same should not have been treated as first information report. It is contended that the Fardbeyan, as such, would be hit by Section 162 Cr.P.C. Advancing the argument further, learned counsel for the appellant submits that in any case the Station Diary Entry so made by the police should have been brought on record as that would have revealed the truth regarding nature of information received by police prior in time regarding the incident in question. The same has deliberately been withheld and as a consequence thereof the Court should draw an adverse inference for withholdment of an important document under Section 114 (g) of the Indian Evidence Act. We find force in the argument. Certainly, it was incumbent upon the prosecution to produce the station diary entry in course of trial and its non-production would raise suspicion regarding veracity of the prosecution version. We further find in this regard that the first information report was registered on 11.4.1982 at 9 am but the seizure lists (Exhibits 9, 9/1 and 9/2) which were prepared on 11.04.1982 at 6.30 a.m., 7 a.m. and 7.10 a.m. respectively on 11.04.1982 at the alleged place of occurrence 9 contains entry of police station case number of the case. As noted above, when the formal first information report was drawn at 9 a.m. on 11.04.1982, the Investigating Officer could not have recorded the police station case number on the seizure list prior to his arrival at the Police Station. This also raises doubt against the persecution version. We further find that first information report though said to have been registered on 11.04.1982 and sent to the Court by Special Messenger could reach the Court on 16.04.1982 that is after a lapse of five days. There is no reasonable explanation much less explanation by the prosecution for such inordinate delay in receipt of first information report in the Court. The inordinate delay in sending the first information report is a circumstance which provides legitimate basis for suspecting that the first information report was recorded much later. If that be so, there was sufficient time was to the prosecution to introduce improvement and embellishment. The delay in sending the copy of the first information report to the concerned Magistrate makes the first information report suspicious. The delay in transmission of first information report to the Court makes the investigation tainted. An inference could also be drawn that the same had been drawn after due deliberation, consultation and discussion. It would be unsafe to rely upon such investigation. 11. The post mortem examination of deceased was held on 11.04.1982 at 5 pm by Dr A Z Mallick (PW 17). The post mortem report has been proved and marked Exhibit 8 in this case. As per postmortem report no external injury was found on the body of the deceased. While deposing in Court, the doctor has admitted that he had not written in the post mortem report that he could find any ante mortem injury on the person of the deceased. Of course, the doctor has found fracture of larynx and first ring of trachea just below of larynx. The defence has taken a plea that such 10 fracture could have been possible while the informant and others were trying to pull and remove the dead body from the funeral pyre. It has come in evidence that most of the part of the body had already burnt and there was no muscle left on the dead body of the deceased. In such situation, if there was an attempt of pulling the dead body which certainly was kept in the funereal pyre under raw wood, fracture injury could have been possible. Even otherwise the case is based on circumstantial evidence. There is no witness on the point of commission of murder. In the first information report, the informant claims that when he went to the house of the appellant, it was Madan Prasad Yadav (PW 3) who disclosed him that he was at the door of the appellant‟s house and when he tried to go inside the courtyard, father of the appellant Durga Singh asked him to go out. In the first information report, we do not find the name of Upendra Ram (PW 14) but subsequently, in course of trial, PW 14 turned up as a star prosecution witness. He claimed himself to be servant of Durga Singh, father of the appellant. He contended in his examination-in-chief that he was present at the door of the house of the appellants at the time of occurrence. He tried to enter inside the house upto the courtyard but father of the appellant asked him to go out. Subsequently, he came to know from father of the appellant that the deceased had committed suicide. He contended that Madan Prasad Yadav (PW 3), another servant of co-accused Durga Singh was also near the door at that point of time. According to him, thereafter the dead body was taken to the orchard where the accused persons were cremating the deceased. In the meantime, the informant and others turned up. They pulled and removed the partly burnt body of the deceased. When this witness was cross-examined, he, though claims to be the servant of Durga Singh, denied knowledge as to how many sons Durga Singh had. He could 11 not disclose the names of other sons of Durga Singh. He admitted that Durga Singh had three houses in the village and prior to the date of occurrence, he did not enter any part of the house of the appellant. He further admits that he did not raise „Hulla‟ at the time of occurrence. He did not inform anyone. His identity was seriously challenged by the defence and when specific question was put to him, he admitted in cross- examination that he cannot produce any paper to show that in the voters‟ list, his father‟s name was Moti Ram. He further admits that in the voters‟ list, his father‟s name was mentioned as Gonar Ram. Upendra Ram (P.W.14) had stated in his chief that he had seen the appellant tying his wife on the date of occurrence. When the investigating officer was confronted with this part of the evidence of P.W.14, he categorically stated that P.W.14 had not stated in his statement under section 161 (3) of the Cr.P.C. recorded by him that the appellant was tying his wife. He has further admitted that Upendra Ram in course of investigation had not disclosed the name of his father as Gonar Ram. 12. The defence in order to prove its innocence has also examined three witnesses. D.W.3 examined on behalf of the defence is Gonar Ram son of Moti Ram. He has stated in his evidence that he has another brother whose name is Upendra Ram. His father is Moti Ram and he has no alias name. In his deposition he has further stated that his brother-in- law also resides in the same village whose name is also Upendra Ram. The father‟s name of said Upendra Ram was Gonar Ram. 13. When we scrutinize the evidence of P.W.14, we first find that his name has not been given by the informant at the time of recording of fardbeyan though he claims to be present at the door as well as at the place where the burning had taken place. Admittedly, the informant 12 had reached immediately after 7.30 p.m. on 10.4.1982. The fardbeyan was recorded almost five hours thereafter. In between, there was enough time that, if P.W.14 was present, the same could have been brought to the notice of the informant or the investigating officer. However, nothing of that sort had happened. His identity has seriously been challenged. The investigating officer who was examined subsequently has not stated in categorical terms that it was Upendra Ram (P.W.14) son of Gonar Ram who had made statement before him in course of investigation. The investigating officer referring to previous statement of P.W.14 contradicted him regarding story of tying the deceased by the appellant at the time of occurrence. All these facts makes him an unreliable witness. 14. Mahendra Prasad Yadav (P.W. 5), Choti Rishideo (P.W.6), Bechu Ram (P.W.7), Mahendra Thakur (P.W.9), Yogendra Thakur (P.W.10) and Yogendra Yadav (P.W.13) are all on the point of cremation of the dead body of the deceased. P.W.15 is a hearsay witness. He claims to have come to know regarding the occurrence from Madan Prasad Yadav (P.W.3) who has been tendered by the prosecution. He admits to have sent a person to inform the police. He directed the Chawkidar and others to stop burning of the dead body. He admitted that Durga Singh had filed nomination papers for contesting elections on the post of Mukhiya but his nomination paper was rejected. He, thereafter, filed a writ petition in the High Court for staying the election but no stay order was issued by the High Court. 15. The only witness who could have thrown some light regarding alleged commission of murder was Madan Prasad Yadav (P.W.3), who, as stated above, has been tendered by the prosecution even before he could speak anything regarding the prosecution case. In other words, the 13 prosecution has given him up. 16. The investigating officer though claims to have seized certain articles from the place of occurrence such as Jute rope, blood stained earth and some clothes from the place of occurrence but neither the seized articles were sent for forensic test nor material exhibits were produced in court in course of trial. We have already taken note of the fact that the alleged seizure lists were though prepared prior to the institution