CRIMINAL APPEAL No.64 OF 2003 DB
With
CRIMINAL APPEAL NO. 265 OF 2003 DB
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Against the judgment and order dated 21st January, 2003 passed by Shri
Baleshwar Prasad Singh, Presiding officer, Addl. Court No. 1, (Fast Track
Court), Sasaram
———
Kapil Sah @ Kapildeo Sah, son of Sakhi Sah, resident of village –
Mednipur, P.S. – Sasaram (M), District – Rohtas
……Appellant (in Cr. Appeal No. 64/2003)
Sudarshan Sah, son of Kapil Sah alias Kapildeo Sah, resident of village –
Mednipur, P.S. – Sasaram (M), District – Rohtas at Sasaram
……..Appellant (in Cr. Appeal No. 265/2003)
Versus
The State of Bihar ……………. (Respondent in both the appeals.)
——-
For the Appellants : S/s Vikram Deo Singh,
Pawan Kumar Singh, Advocates
For the Respondents: Shri Abhimanyu Sharma, A.P.P.
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PRESENT
THE HON'BLE SRI JUSTICE DHARNIDHAR JHA
&
THE HON'BLE SRI JUSTICE RAKESH KUMAR
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Dharnidhar Jha
Rakesh Kumar, JJ. The two appeals arise out of the judgment dated 21st January,
2003 rendered by the learned Additional Sessions Judge I -cum-
Presiding Officer, FTC, Sasaram in Sessions Trial no. 92/88 /
380/2002 by which the two appellants, one in each of the two
appeals, were found guilty of committing offence under section 302
read with section 34 of the Indian Penal Code and were directed to
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suffer rigorous imprisonment for life. Besides, appellant Sudarshan
Sah who was found guilty of also committing offence under section
27 of the Arms Act while the other appellant Kapil Sah alias
Kapildeo Sah was acquitted of that charge, was directed to suffer
rigorous imprisonment for three years on that account. The
appellants have brought into question the findings recorded by the
learned Trial Judge through these two appeals.
2. The prosecution case is contained in Ext. 1, the Fardbeyan of
P.W. 5, Sardar Ram who happens to be the son of the deceased
Sheo Pujan Ram. It is stated that while the informant and his family
members were asleep in the night of 10.2.1987, he picked up the
sound of some Kharkharahat on which, his father came out of the
room in which he was sleeping, and found the two appellants along
with four others to have jumped inside his Angan. Appellant Kapil
Sah was armed with lathi whereas appellant Sudarshan Sah was
having a pistol in his hand. The deceased cried to the informant to
open the door of the room as appellants had come along with the
criminals to kill him. The informant opened the doors and his father
entered inside it in a hurry. It is alleged that accused persons,
thereafter, hammered the doors with Silwat and Musal (both heavy
stone and wood materials), as a result of which, the doors were
broken and the room was opened. The two appellants along with
four unknown are said to have entered inside it and they are further
alleged to have hurled abuses on the informant, P.W. 5, his wife,
P.W. 4 and the wife of his younger brother, P.W. 2 Ram Daiya
3
Devi and were made to stand in the corner of the room and
thereafter appellant Sudarshan Ram shot fire into the head of his
father, as a result of which he fell down dead.
3. It is alleged that the two appellants threatened the informant
and his family members not to report the matter to the police else
they would also be liquidated and after firing a shot again in the
Angan all culprits went away. It was alleged that an earthen pot
which was kept inside the room, was broken during the incident.
4. As regards the cause of occurrence, it was alleged that the
son of appellant Kapil Sah had been murdered and the deceased
Sheo Pujan Ram was one of the witnesses on behalf of the
prosecution but was not ready to depose against the accused persons
of that case. As such, the appellant Kapil Sah had taken a vow to
kill the deceased and also of not shaving his beards till he fulfilled
his vow.
5. On the basis of Fardbeyan, (Ext. 1), FIR, (Ext. 6) was drawn
up and investigation was taken up. It appears that the dead body
was sent up for postmortem examination to Dr. A.K. Upadhyaya
who found a semi circular penetrating wound on the right side of
the forehead with burning of the surrounding skin and the whole
circumference of the cranial vault broken into pieces exposing the
cranial cavity. The brain matter was also found in pieces and part of
the méninges was missing. In the opinion of P.W. 6, Dr.
Upadhyaya, the injury was ante mortem caused by some fire arm
and was sufficient to cause death in the normal course of nature. It
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appears further that after finding sufficient material against the
accused persons they were sent up for trial by the police, after
which the impugned judgment was pronounced.
6. The defence of the appellants was that they had falsely been
implicated on account of suspicion. It was further suggested to the
witnesses that the deceased was a man of criminal antecedent, even
being prosecuted for a charge under section 302 of the IPC and had
earned many enemies and any of whom could have done the act. It
was suggested to the witnesses that they had falsely implicated the
appellants. The appellants further challenged their identification by
the witnesses and suggested that the two were not there and the
evidence on identification of the appellants was false and incorrect.
7. In support of the charge, the prosecution examined seven
witnesses and one court witness, out of whom, P.W. 7, Manik
Chand Ram was a witness of formal character who had witnessed
the holding of the inquest on the dead body and preparation of the
report Ext. 4 as also seizure of two empty cartridges, one from the
place of occurrence room and the other from Angan of the deceased
and the preparation of seizure memo, Ext. 5. Same is the case of
the solitary court witness, Badri Narayan Singh, who proved the
writings of the FIR, Ext. 6. Out of the remaining witnesses, P.W. 6,
as we have just indicated, is the doctor who held the post mortem
examination and prepared the report Ext. 2. P.W. 1 Sheo Prasad
Ram is a witness who had not witnessed the incident of breaking
open the door, entering the room by the accused persons and killing
5
the decease but has deposed that on hearing the cries of the family
members he came there and found that they were all weeping and
telling that it were the two appellants who had killed the deceased.
As regards P.W. 2, Ramdaiya Devi, she is the wife of the younger
brother of P.W. 5 and has presented herself as eye witness to the
occurrence like P.W. 3, Tetri Devi who is the wife of the deceased
and mother of P.W. 5. Both Sardar Ram (P.W.5), the informant of
the case, and his wife P.W. 4, Manbanti Devi have also given eye
witness account of the occurrence.
8. We have heard Shri Vikram Deo Singh, learned counsel for
the appellants who has, firstly, contended that there was no story of
identification or any indication about the source of identification in
the fardbeyan but after over three years of the incident, the
witnesses, who also appeared not making such statement before the
police, made a statement in court that there was an electric bulb
burning in the room in question and the witnesses identified the
appellant in light thereof. It was contended, by referring to the
evidence of different witnesses, that the attention of the witnesses
was drawn to their respective statements on the above point and
they claimed to have made that statement. That fact would have
been proved or disproved by the examination of the Investigating
Officer. Besides, the existence of the electric bulb in the place of
occurrence room could also have been verified by the police officer
who had inspected it. But his non-examination has materially
prejudiced the appellants. It was further contended that even if
6
assuming that it could be a circumstance which could be created by
the evidence of witnesses, it was incumbent upon the learned trial
judge to have put it as a question to the appellant during their
examination under section 313 of the Code of Criminal Procedure
but a perusal of the recorded statement of the appellants at pages 63
and 64 of the paper book, makes it evident that no such question
was put to either of the appellants and still the court below has held
that there was sufficient light and the appellants were duly
identified therein. It was contended that the whole trial appears
vitiated and the factum of identification must not be said to be
established.
9. The second point which was raised before us, was the belated
receipt of the first information report by the court below. It was
contended that the FIR, having been drawn on 11.2.1987 and the
place of occurrence being away by 12 kilometers from the court
premises, it creates suspicion as to how it took two days to travel
12 kilometers which is a distance covered by macadamized road
and railways also. The possibility of concoction, due to deliberation
and preparation of the document after consultation, may not be
ruled out. It was contended by drawing our attention towards Ext. 2,
the post mortem examination report, that the dead body was
received at 2 P.M. on 11.2.1987 and the P.W. 6, the doctor, started
the post mortem examination at around 4 P.M. but curiously
enough, there is no case number or any reference as to in what
connection the dead body had been received in the mortuary
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specially when the FIR had been drawn up on 11.2.1987 at 11.15
A.M. It was contended in this connection that assuming that the
Investigating Officer of the case who dispatched the dead body to
the mortuary might not have mentioned the number of the case but
he must have at least mentioned about the fardbeyan of the
informant as a reference material for dispatching the dead body. It is
contended that these two circumstances are so telling as to creating
the biggest deficiency in the prosecution case and it was onerous
upon the court below to have considered them and to have given
benefit of doubt to the appellants.
10. Shri Abhimanyu Sharma, learned A.P.P. for the state has
done the best he could under the circumstances of the case to
convince us that even if the story of presence of an electric light at
the place of occurrence is overruled, there could be sufficient
evidence appearing from the prosecution case to hold that the
prosecution witnesses had the opportunity of seeing the appellants
and identifying them. Sri Sharma drew our attention towards the
evidence of P.W. 5 in which he has stated that it was a moon lit
night and has further submitted that the appellants were very closely
standing by the witnesses, while the witnesses were being made to
stand in the corner of the room and the appellants being villagers,
they must have been picked up by the witnesses correctly. It was
further contended that while they had arrived at the scene of the
occurrence, they had been observed by the witnesses and that could
have given sufficient opportunity to them for identifying them
8
correctly. It was contended that the doctor found the corresponding
injuries and the consistency is there in the evidence of witnesses
and it was under the above circumstances that the learned trial judge
was perfectly writing his judgment. It was contended, lastly, by
Shri Sharma that not putting the circumstance of identification of
the appellant in electric bulb might not be a circumstance which
could be as important as to vitiate the judgment of conviction.
11. While hearing the present set of two appeals, we were taken
through the evidence of witnesses, specially, P.Ws 1, 2, 3, 4 and 5
who are not only the family members and the very close relatives of
the deceased, but appeared also residing under the same roof of the
house. It could not be very easy for a court to reject their evidence
by holding that their presence at the place of occurrence could be
doubtful. It was the dead of night. They were sleeping after having
taken their meals and it could be reasonable for any one to assume
that when any such exigency, as has been stated by the informant in
his fardbeyan, would have appeared to them, they could have
flocked together and there was no wonder that they had flocked
together in the place- of- occurrence room. Their competence on
that account, we do not doubt, except that they have given up the
important part of the story while naming the appellants. They have
named and also attributed specific overt acts to the two appellants,
but did not whisper a single word as to what had happened of the
four unknown persons who were accompanying the two appellants.
Besides, what has struck us the most was that it could not be that
9
the deceased was a good Samaritan. The materials available to us
on record indicate as if he could be facing criminal charges of
committing various offences. One person, as per the statement of
P.W. 2, Ramdaiya Devi, had lodged the case of arson against him
and the deceased was also facing a murder charge in the court of
law. Ramdaiya Devi is the daughter in law of the deceased who was
married to his younger son. It is true that the witnesses have denied
that the deceased was not facing criminal charges, but we find it
coming from the evidence that the deceased was facing multiple
criminal charges in more than two criminal cases. He had been an
accused indulging in a case of arson in a dwelling house and he had
also been charged for committing the murder of one of his
villagers. Besides, P.W. 5 also appears being an accused in a case
under the Arms Act as may appear from his own evidence in
paragraph 10 though he has stated that the case was dismissed.
Cases are dismissed on account of various reasons but the
fundamental thing remains that one had been an accused for
committing criminal act. As we find from the record, the possibility
may be that the deceased could be having animus with many others.
This is the most important aspect of the case which we have kept in
our mind while considering and evaluating the evidence of the
witnesses.
12. In the above background, we have proceeded to consider the
evidence of identification. It was rightly submitted that Ext. 1 does
not contain a whisper about any source of identification being
10
available at the site of incident. In fact, there is no statement in Ext.
1 as to how the appellants or the accused persons were seen and
identified. It was after more than three years when the witnesses
were being examined in court that P.W. 5 in paragraph 2 of his
deposition stated that an electric bulb was burning in his room and
he identified the two appellants in the light thereof. His attention
appears drawn to the above fact by suggesting to him that he had
not made such statement to the Investigating Officer of the case and
he was further cross-examined that he had shown the bulb to the
Investigating Officer. Similarly, the attention of P.Ws. 2, 3 and 4
was drawn to the above statement of theirs that they had not made
such statements to the police.
13. We have appreciated the argument of learned counsel for the
appellants and also that of the learned counsel for the state and
perused the relevant paragraph 5 of the case diary, which contains
the description of the place of occurrence and we find that there is
no mention of finding of any electric bulb hanging or being fitted in
the room in which the occurrence had taken place. All P.Ws have
stated in their evidence that except the room in question other two –
three rooms of the house had no such electric light fitted. Thus, we
find that the witnesses had improved upon on the most material part
of the prosecution story as regards the identification. We further
perused the statement of these witnesses and we found that no such
statement was recorded in the case diary and we could safely say
11
that there was quite some improvement made by the witnesses as
regards the identification of the accused persons in the light.
14. In the light of the serious challenge as we have discussed
presently, we feel that it was important circumstance which was
necessary to be explained by the accused and the court below ought
to have put the circumstance so as to elicit explanation of the two
appellants in their respective statements under section 313 of the
Code of Criminal Procedure. The non-compliance of the provision
of section 313 of the Code of Criminal Procedure on the above
point, in our considered opinion, vitiates the trial and the finding of
the court below as regards the identification of the appellants.
15. While perusing the case diary, we are also alive to another
aspect of the appeal and the submission also, that the doors of the
room were broken by being smashed by some heavy stone material.
We may point out that the description of the place of occurrence as
mentioned in paragraph 5 of the case diary does not find any
mention in the evidence of the witnesses. There is no mention of
the fact that the I.O. had found the door broken or any such material
on the place of occurrence which could be matching in description
with that which was allegedly utilized in smashing the door so as to
break them open. Witnesses have sated in their evidence that as
soon as the deceased and they all had closeted themselves into the
room in question, the accused persons hammered the doors to break
them open with Silwat and Musal. These are vital facts which
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appear materially touching upon the prosecution evidence
adversely.
16. As regards other the argument on the belated receipt of the
FIR, Ext. 6, by the magistrate, it was rightly submitted by the
learned APP that the evidence of the I.O. could have been material
in clarifying as to what was the reason under which the FIR could
be dispatched and as such, was received belatedly by the magistrate.
But, was not it the duty of the prosecution to call the witness for
putting on this explanation and the explanatory material on the
record of the case? Could it take advantage of its own laches
specially when we have some satisfactory material to hold that for
quite some time the police did not even know as to what was the
case registered on that behalf and might be that it was still groping
in dark as to what was the story to be placed before a court after
satisfying its conscience as regards murder inside the house. Thus,
we can say on various grounds and one that some basic record did
not bear the number of the case. Inquest report and seizure memo
were prepared much ahead of the time the FIR was drawn up but
after the recording of Fardbeyan (Ext.1). But, what could be the
explanation when one finds that the reference column in both
Inquest Report and the postmortem examination report at their top
do not bear any reference, even that to the fardbeyan of Sardar Ram.
If the F.I.R. had not been drawn up by 2 P.M. or before 2 P.M., it
would have been expected that the officer who was dispatching the
dead body to the mortuary for postmortem examination, could have
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put down in the reference column of the dead body challan and the
inquest report, the fardbeyan of Sardar Ram and it could have been
sufficient compliance to the requirements of law and we could have
also got sufficiently satisfied about its compliance. The very
postmortem report, which is available on the record and also a copy
of which is placed at pages 61 and 62 of the paper book, indicates
that the dead body had been received from Sasaram Mufassil Police
station in connection with a case, number of which has not been
mentioned. The dead body was received at 2 P.M., as indicated
above, the same was seen by P.W. 6 at 3.30 P.M. and the
examination started at 4 P.M. The very non-mentioning of the case
number at the top right hand corner of the postmortem examination
report creates a doubt that before 2 P.M. there was no FIR which
had been shown drawn up at that time. This could be the reason that
we find that the requirement of section 157 of the Code of Criminal
Procedure had not been complied with as the copy of the document,
Ext. 6, does not appear to be sent to the magistrate ‘forthwith’. We
do not want to burden this judgment by citation on the importance
of dispatching a copy of the FIR to the magistrate for the purpose
of eliminating any possibility of concoction or of false implication.
17. We find it admitted that the deceased had been cited as
witness in a criminal trial which was probably going on for the
murder of the son of one of the appellants Kapil Sah. The deceased
had refused to depose in the trial. It is alleged that the deceased had
been threatened by the appellants. The purpose to state these facts
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is that it is a case purely based on suspicion that it could be the
appellant Kapildeo and his son Sudarshan who could have
committed the murder of Sheopujan though the possibility exists
that it could be many persons who could be settling their personal
scores against the deceased for the reasons we have indicated just
now.
18. After having discussed the evidence and the probabilities and
the defect which afflicts the prosecution case, we are of the
considered view that it was a case in which benefit of doubt ought
to have been given to the appellants. Accordingly, we extend the
benefit of doubt to them. The Judgment of conviction passed by the
learned trial judge and sentence inflicted on the appellants are set
aside. The two appellants are acquitted after being given the benefit
of doubt. Appellant Kapil Sah is on bail. He shall be discharged
from the liabilities of his bail bond. Appellant Sudarshan Sah is in
custody. He shall be released from custody if not wanted in any
other case.
(Dharnidhar Jha, J.)
(Rakesh Kumar, J.)
Patna High Court,
The 1st February,2010
NAFR/Anil/