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Patna High Court
Brij Nandan Singh vs State Of Bihar on 29 January, 2010
Author: Dharnidhar Jha
             CRIMINAL APPEAL No.568 OF 2004

Against the Judgment of conviction dated 8th July 2004 and order of
sentence dated 10th July,2004 passed by the 5th Additional Sessions
Judge, Bhojpur at Ara in Sessions Trial No.221 of 2001, arising out of
Sahar P.S. Case No.15 of 2001
                                                 ------------

1.ASHOK KUMAR SINGH

2. Bhola Prasad Singh

3. Ram Pravesh Singh

4. Manoj Kumar Singh————————————–(Appellants)
Versus
STATE OF BIHAR—————————————–(Respondents)

WITH

CR. APP (DB) No.604 oF 2004

BRIJ NANDAN SINGH————————————–(Appellant)
Versus
STATE OF BIHAR——————————————(Respondents)

For the Appellants :M/S Rana Pratap Singh, Sr. Advocate,
Sumant Singh, and
Baxi S.R.P. Sinha, Advocates.

For the Informant : M/S Kanhaiya Prasad Singh, Sr. Advocate
Kamla Kant Singh, Atul Bihari, and
Dhiraj Singh, Advocates.

For the State : Mr.Ashwini Kumar Singh, A.P.P.

PRESENT

THE HON’BLE MR. JUSTICE DHARNIDHAR JHA

THE HON’BLE MR. JUSTICE RAKESH KUMAR
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Rakesh Kumar,J. Heard Sri Rana Pratap Singh, Senior Advocate and Sri

Bakshi S.R.P. Sinha, Advocate appearing on behalf of the

appellants and Sri Ashwini Kumar Sinha, Addl.Public Prosecutor

for the Respondent. We have also heard Sri Kanhaiya Prasad Singh,

learned Senior Counsel for the informant.

2. Both the appeals arise out of Judgment of conviction

dated 8th July,2004 and order of sentence dated 10th July,2004 , and

as such, both the appeals were heard together and ,accordingly, are

being disposed of by this common Judgment.

3. The appellants have challenged their order of

conviction and sentence passed in Sessions Trial No.221 of 2001 by

5th Addl.Sessions Judge, Bhojpur at Ara, whereby they were held

guilty and convicted for the offences under Sections 302/34 ,307/34

of the Indian Penal Code and 27 of the Arms Act and all the

appellants were sentenced to rigorous imprisonment for life for the

offence under Section 302/34 of the Indian Penal Code . They were

further sentenced to undergo rigorous imprisonment for 10 years

for the offence under Section 307/34 of the Indian Penal Code and

also to undergo rigorous imprisonment for four years for the

offence under Section 27 of the Arms Act. All the sentences passed

against the appellants were ordered to run concurrently. No sentence
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of fine has been passed.

4. The prosecution case, in short, is that on 1st

March,2001 at about 6.30 P.M. Sri Anil Kumar Singh ( P.W.1)

gave his fardbeyan to Sri Ram Babu Mandal, Officer Incharge of

Narayanpur Police Station on the Canal Road near Harkhen river,

Baghi Market . In his fardbeyan ( Ext.1) , the informant disclosed

that as usual after closing his shop, which runs in the name and style

of “Kumar Machinery Stores” which deals with the Kirloskar

Diesal Engine and its accessories at about 4.30 P.M. he along with

his elder brother ,Bir Kumar Singh ( deceased) and cousin brother,

namely, Rakesh Kumar Singh were returning to his village home,

namely, Bargaon. As his brother Bir Kumar Singh reached near

Baghi Badhar about 25 yards west on Canal road of Harken river, he

saw his co-villager Nandu Chaurasiya coming from eastern side on

a bicycle and on other cycle two unknown persons were going

towards Narayanpur from eastern side. The informant disclosed that

he was behind 25-30 yards back of his brother Bir Kumar Singh. He

further disclosed that after noticing Nandu Chaurasiya his brother

Bir Kumar Singh stopped his bicycle and both of them, i.e. Bir

Kumar Singh and Nandu Chaurasiya started talking. In the

meanwhile, the informant noticed that appellants Ashok Kumar
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Singh, Manoj Singh, Ram Pravesh Singh, Brij Nandan Singh, all

residents of Village-Bargaon, Police Station -Ajimabad in the

district of Bhojpur, who were ambushing in the chart in the northern

side of the Canal armed with rifle and pistol, suddenly came out

and surrounded his brother Bir Kumar Singh and started firing from

their respective arms on his brother , due to which his brother fell

down . In the meanwhile , from the other side of the Canal , Bhola

Singh ,resident of Village -Bargaon , Police Station-Ajimabad ,

District-Bhojpur along with two others , armed with pistol and rifle

came and they also fired on his brother who was lying on the

ground. The informant further stated that when his co-villager

Nandu Chaurasiya asked the accused persons not to do so, then all

the accused persons also opened fire on him through rifle and pistol.

After noticing the said occurrence, the informant (P.W.1) and his

cousin brother started fleeing away from the place of occurrence.

Thereafter, accused persons started firing on him also. It was further

disclosed that in the said firing one of the persons who were coming

from the eastern side on bicycle sustained injury and fell down. Any

how, the informant saved himself and ran towards village Muradpur

and there he narrated about the occurrence to the villagers of the

said village. Thereafter, the informant ( P.W.1) , his cousin brother
-5-

Rakesh Kumar Singh ( P.W.2) and one another persons who had

fled away after leaving his bicycle who had subsequently disclosed

his name as Ranjit Rai of Village- Jeneshar , Police Station Sandesh

in the district of Bhojpur ( not examined) and villagers of village

Muradpur came to the place of occurrence and saw that his brother

Bir Kumar Singh , his co-villager Nandu Chaurasiya and one

another person , regarding whome Ranjit Rai ( not examined)

disclosed that his name was Hare Ram Rai Singh of village

Jeneshar, Police Station Sandesh in the district of Bhojpur, were

lying dead due to fire arm injury . The informant further disclosed

that all the five named accused persons had earlier demanded

Rs.25,000/- ( twenty-five thousand) as Rangdari and in this regard

he had lodged the an F.I.R., bearing Ajimabad P.S. Case No.36 of

1999, on 23.12.1999 for offence under Section 387 of the Indian

Penal Code. The accused persons were putting pressure and giving

threatening for dire consequences for withdrawal of the said case.

The informant claimed that due to said enmity accused persons,

namely, Ashok Kumar Singh, Manoj Kumar Singh, Ram Pravesh

Singh, Brij Nandan Singh and Bhola Singh (all appellants) and two

others had committed the present occurrence. On the basis of the

fardbeyan of the informant (P.W.1) a formal F.I.R. (Ext.6) was
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drawn up on 1st March, 2001 at 11.30 P.M. After recording the

fardbeyan, the police started investigation and finally after

submission of the chargesheet , the aforesaid appellants were put on

trial and they were charged for offences under Sections 302/34 ,

307/34 of the Indian Penal Code and 27 of the Arms Act.

5. During the trial, to prove the case, the prosecution

examined altogether 11 ( eleven ) witnesses ,out of them P.Ws 1

and 2 were examined as ocular witnesses to the occurrence, Arun

Kumar Singh ( P.W.3) and Abhay Kumar Singh ( P.W.6) are

hearsay witnesses. P.Ws 4 and 5 are witnesses on the inquest report.

Baidyanath Singh Singh(P.W.7) is a seizure list witness , Dr. Arun

Kumar Singh ( P.W.8) had conducted post-mortem examination on

the dead bodies of the three deceased . Sri Ram Babu Mandal (

P.W.9) is the main Investigating Officer , Tarkeshwar Prasad (

P.W.10) is a formal witness who has identified writing and signature

of Anil Kumar Singh over a written report, which has been marked

as Ext.10, which was the basis of formal F.I.R. of Ajimabad P.S.

Case No.36 of 1999. Sri Parmanand Bisna , Sub Inspector of

Police(P.W.11) had partly investigated the case and submitted

supplementary chargesheet in the case.

6. In the case, the appellants also examined altogether
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8(eight) witnesses in their defence. The defence of the appellants

was complete denial and they have taken stand that they were

falsely implicated in the case and some of them also took the plea of

alibi.

7. Sri Rana Pratap Singh, Senior Counsel , appearing

on behalf of the appellants has precisely formulated the following

points:

(i) Sri Anil Kumar Singh (P.W.1) and Sri

Rakesh Kumar Singh (P.W.2) are not eye

witnesses to the occurrence.

(ii) The whole F.I.R. is anti-dated as it was

belatedly prepared

(iii) Inquest reports i.e.Ext.7-Inquest Report of

Nandu Chaurasiya , Ext.7/1- Inquest Report

of Bir Kumar Singh and Ext.7/2 – Inquest

Report of Hare Ram Rai , were prepared on

1.3.2001 at 19.15 hours( i.e. 7.15 P.M.),

1.3.2001 at 19.30 hours ( i.e. 7.30 P.M) and

1.3.2001 at 19.45 hours( i.e. 7.45 P.M.)

respectively and all the three Inquest Reports

bear Sahar P.S. Case No.15 of 2001, whereas
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formal F.I.R. in the case was drawn on

1.3.2001 at 23.30 hours( i.e. 11.30 P.M.)

(iv) Four bicycles were not seized by the

Investigating Officer from the place of

occurrence.

         (v)           Not even a single witness         from village

                       Muradpur has come forward to depose as

                       prosecution witness.

         (vi)          There is conflict in between medical evidence

                       and ocular evidence , and

         (vii)         All the witnesses who have supported the

                       case, formal or eye witnesses,       come

                       from one family.



8. Elaborating his argument on the aforesaid points ,

Sri Singh has emphasized that in the case, the prosecution has

examined only two witnesses who had claimed to witness the actual

occurrence and those witnesses are Sri Anil Kumar Singh ( P.W.1)

who is none else but full brother of the deceased Bir Kumar Singh

and Sri Rakesh Kumar Singh ( P.W.2) who is cousin of the

informant. With a view to create doubt regarding the veracity of the
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two witnesses , learned counsel has categorically stated that it is the

specific case of the prosecution that accused persons firstly

surrounded the deceased Bir Kumar Singh and thereafter fired from

their respective weapon, due to which Bir Kumar Singh fell down

and again thereafter Bhola Singh ( appellant no.2 in Cr.Appeal

No.568 of 2004) along with two others appeared and they also fired

from rifle and pistol on the body of Bir Kumar Singh. By referring

the postmortem report of Bir Kumar Singh, the learned Senior

Counsel argued that none of the injuries caused on the body of the

deceased Bir Kumar Singh show charring/tattooing mark. It was

argued that if from such a close range, firing is done, then certainly

the injury will reflect charring/tattooing mark on the body. He

further argued that since they had no such injury, a doubt is raised

regarding the credibility of the witnesses who have claimed to be

the eye witnesses to the occurrence.

9. Sri Singh has forcefully challenged and claimed that

the F.I.R. was ante-dated and prepared in a planned manner to

implicate the appellants who were already made accused by the

informant in Ajimabad P.S. Case No.36 of 1999 for the offence

under Section 387 of the Indian Penal Code. The plea which has

been taken by the appellants is that though the inquest reports which

– 10 –

were claimed to be prepared on 1.3.2001 after the occurrence in

between 7.15 P.M. and 7.45 P.M. and formal F.I.R. was lodged on

the same day at 11.30 P.M. in a Police Station, which was about 10

Kilometer away from the place of occurrence , it was beyond the

imagination that the said inquest reports would have contained the

F.I.R. number before formal registration of the same.

10. Regarding non-seizure of bicycles by the

Investigating Officer from the place of occurrence, it was argued

that when there was specific case of the prosecution that the

deceased persons were on bicycles at the time of occurrence, then

seizure of bicycles at the place of occurrence by the Investigating

Officer was necessary. However, bicycles were not seized by the

police from the place of occurrence. Learned senior counsel

emphasizing the non-seizure of bicycles by the Investigating

Officer from the place of occurrence as a measure flaw in the

investigation argued that this also creates serious doubt on the

question of occurrence being seen and claimed by the two eye

witnesses.

11. Sri Singh further argued that it was specific case of

the informant that after the occurrence to save their lives the

informant, his cousin brother and one another person, namely,

– 11 –

Ranjit Rai (not examined) had rushed to village Muradpur and

thereafter along with villagers of Muradpur they arrived at the place

of occurrence, where the police also arrived subsequently, but none

of the villagers from village Muradpur were examined to prove the

prosecution case. This also creates serious doubt on the prosecution

case.

12. Sri Singh argued that all the witnesses except

official witnesses are related to the informant and as such, the

witnesses appears to be not truthful and all the witnesses are

interested witnesses.

13. Now in the light of the argument on behalf of the

appellants and with a view to test the veracity of the prosecution

case, it is necessary to examine minutely the evidence of P.W 1 and

P.W.2 who are the eye witnesses to the occurrence. P.W.1 Sri Anil

Kumar Singh during the trial has categorically supported his

fardbeyan. P.W. 1 has disclosed that at Narayanpur Bazar he had

shop of Kirloskar Diesal Engine and its accessories in the name and

style of “Kumar Machinery Stores” and he is resident of Bargon,

which is 6 Kilometer in the eastern direction from village

Narayanpur. He stated that he himself and his deceased brother Bir

Kumar Singh were running the said shop. He stated that usually they

– 12 –

used to close the shop at about 4.30 P.M. and return to village

Bargaon on cycle. On the date of occurrence i .e. 1.3.2001 , P.W.,

the deceased and his cousin brother Rakesh Kumar Singh ( P.W.2)

after closing the shop at about 4.30 P.M. were returning to their

village. P.W.1 and his cousin Rakesh Kumar were on one cycle and

coming behind his deceased brother Bir Kumar Singh who was on

another cycle . At about 5.00 P.M. they reached near Harkhen river

in the western side of Canal road . At that time, Nandu Chaurasiya

was coming from eastern side over a cycle. Thereafter, his deceased

brother Bir Kumar Singh stopped Nandu Chaurasiya for talking.

P.W.1 further disclosed that from behind Nandu Chaurasiya two

persons were coming on a cycle while his brother was talking with

Nandu Chaurasiya . The appellants Ashok Kumar Singh, Manoj

Kumar Singh, Ram Pravesh Singh and Brij Nandan Singh having

rifles and pistols came out from the lower level of canal from

northern side. P.W.1 stated that appellant Ashok Kumar Singh was

carrying rifle and other three accused persons were carrying pistols

in their hands. Thereafter, they surrounded his brother Bir Kumar

Singh and fired by their arms on his brother. Thereafter, he fell

down. In the meanwhile from the southern side of the canal,

appellant Bhola Singh and two unknown accused persons came out

– 13 –

and fired through their respective fire arms on his brother who had

already fallen down. Whereupon Nandu Chaurasiya protested and

on said protest appellant Ashok Kumar Singh who was having rifle

and others fired at him and he also fell down. Anil Kumar Singh (

P.W.1) further stated that he and Rakesh Kumar after throwing the

cycle started fleeing away to save themselves .He claimed that

accused persons also started firing on him with a view to kill .

However, in the said firing one person out of two unknown who

were coming on cycle got fire-arm injuries and the said unknown

person also fell down. He further stated that he, Rakesh (P.W.2) and

other unknown cyclist who hadescaped injury came to village-

Muradpur. The said unknown person disclosed his name to P.W.1 as

Ranjit Kumar Rai of village Janeshra, Police Station-Sandesh and he

also told that Hare Ram was his co-villager and coming with him on

a cycle has received gun-shot injury. Anil Kumar Singh (P.W.1)

deposed before the court that he told the villagers of Muradpur

about the occurrence and thereafter they returned to the place of

occurrence and found that his brother Bir Kumar Singh, his co-

villager Nandu Chaurasiya and Hare Ram of Village Jeneshra had

died. In his deposition P.W.1. disclosed that prior to the said

occurrence, appellants Ashok Kumar Singh, Ram Pravesh Singh and

– 14 –

Manoj Kumar Singh were demanding Rs.25,000/- as Rangdari

from him and his brother Bir Kumar Singh, but they refused to give

money , so they were threatening to kill them. Thereafter, he had

filed a case vide Ajimabad P.S. Case No.36 of 1999 on 23.12.1999

against them, which was pending and chargesheet was already filed.

P.W. 1 further stated that accused persons were threatening to

withdraw or compromise the case otherwise they will be murdered.

He also stated that police came and recorded his fardbeyan at about

6.30 P.M. in presence of Ranjit Rai (not examined) and Rakesh

Kumar Singh (P.W.2). This witness has further stated that in his

presence P.W.9- Sri Ram Babu Mandal, Sub -Inspector of Police

prepared inquest reports of three dead bodies and seized blood-

stained soil. Thereafter, the Officer Incharge , Pankaj Kumar Das

(not examined ) came and seized three rifle empty cartridges and

one empty cartridge of pistol from northern ditch in his presence

and Baijnath Singh ( P.W.5). The said seizure list was marked as

Ext.2. P.W.1 also stated that at the place of occurrence Arun Kumar

Singh (P.W.3), Abhay Kumar Singh (P.W.6) of village Bargaon and

villagers of Muradpur and Baghi had come. He further disclosed

that one Sunildeo Singh (not examined) of Baghi had told him that

he had seen the accused persons while fleeing away. This witness,

– 15 –

Anil Kumar Singh , has also deposed before the court that accused

persons were threatening him and his family members . This

indicates that even during the trial , the accused persons were

threatening P.W.1. P.W.1 identified all the five appellants who

were produced from custody in the dock. The examination-in-chief

of this witness was complete on 2.3.2002 and thereafter on the same

day P.W.1 was cross-examined and only one question was asked by

the defence and cross-examination was deferred to 13.3.2002.

However, on 13.3.2002, on repeated calls, none came on behalf of

the defence to cross-examine P.W.1 and thereafter P.W.1 was

discharged. Subsequently, after two months i.e. on 27.5.2002, P.W.1

was cross-examined on recall. In cross-examination at para-18 ,

P.W.1 disclosed that after the occurrence , all the cycles were left

there. After his return, he saw the cycles were lying. He stated that

on the cycle of his deceased brother, there was mark of blood. He

could not see what happened to the cycle, but on the next date,

villagers of Baghi returned the cycle. He stated that he was not in a

position to show his cycle to the police. Even his cycle was also

returned on the next date and even thereafter he never produced

two cycles before the police. He further stated that he knew nothing

about other two cycles. On perusal of cross-examination of P.W.2,

– 16 –

the Court is of the view that the defence has not extracted anything

from the cross-examination of P.W.1 , which creates any doubt on

the veracity of his evidence, and as such, the evidence of P.W.1

cannot be doubted , as argued on behalf of the appellants.

14. In the case, the next important witness who has seen

the occurrence is Sri Rakesh Kumar Singh ( P.W.2) who is cousin

brother of the informant and deceased . In his deposition, he has

stated that on the date of occurrence, he had gone to Narayanpur on

his cycle for the purchase of Cement. He has stated that in

Narayanpur Market, the informant and his deceased brother Bir

Kumar Singh was running a shop of Machinery part. After

purchasing cement and iron rod, he loaded the same on his bicycle .

However, the bicycle developed some problem, and as such, he put

his bicycle inside the shop of his brother at Narayanpur and he along

with the informant Anil Singh on a bicycle and deceased Bir

Kumar Singh on another bicycle started for his village after closing

the shop at 4.30 P.M. on the date of occurrence. He stated that Bir

Kumar Singh was moving ahead on his cycle and at about 5.00 P.M.

in Baghi Market near Harkhen @ Kumhari river, Bir Kumar Singh

was about 25-30 yards ahead of eastern side and P.W.2 along with

P.W.1 was following him. P.W.2 saw that his villager Nandu

– 17 –

Chaurasiya was going towards Narayanpur and after seeing Bir

Kumar Singh , Nandu Chaurasiya stopped his cycle and both of

them started talking . In the meanwhile , from the northern side of

the canal, appellants Manoj Singh, Ram Pravesh Singh , Brij

Nandan Singh and Ashok Singh , armed with rifle and pistols came

out on the road and started indiscriminate firing on Bir Kumar

Singh, whereupon Bir kumar Singh fell down . P.W. 2 further

stated that from the southern chard of the canal , appellant Bhola

Prasad Singh along with two unknown persons armed with rifle and

pistol came out and started firing on Bir Kumar Singh who was

already fallen down. Thereafter, Nandu Chaurasiya tried to

persuade the appellants not to do the thing, on which appellant

Ashok Kumar Singh shot Nandu Chaurasiya from his rifle , which

hit on his abdomen. Others were also firing. When Nandu

Chaurasiya fell down after sustaining injury of fire arm , the

accused persons with a view kill Anil Kumar Singh ( P.W.1) started

firing . At that very time, P.W.2 noticed two persons going towards

Narayanpur on one bicycle and among them one of the persons

received fire arm injury. He stated that in the firing opened on Anil

Kumar Singh (P.W.1), one person of the said cycle received fire arm

injury and he also fell down. Thereafter, P.W.2, Anil Kumar Singh

– 18 –

(P.W.1) and one of the said cyclists to save their lives fled away

towards village Muradpur . P.W.2 further stated that the said

unknown persons disclosed his name as Ranjit Kumar Rai( not

examined) who was resident of Village Jeneshra, P.S. Sandesh ,

District-Bhojpur and the person who was on cycle and received fire

arm injury was Hare Ram Rai of his village. P.W.2 further deposed

that subsequently with 10-15 villagers of Muradpur , he returned to

the place of occurrence, where he found that all the three persons

had already died at the place of occurrence itself. He stated that

villagers of Bhaghi also arrived at the place of occurrence and he

and his brother Anil Kumar Singh narrated the story to the villagers

of Baghi village. In his presence, at the place of occurrence

fardbeyan of Anil Kumar Singh ( P.W.1) was recorded and he and

Ranjit Kumar also put their signatures as witnesses to the fardbeyan.

In his cross-examination, P.W.2 has categorically explained

regarding his visit to Narayanpur and the story regarding coming

back to his village along with P.W.1 and deceased and also his

presence at the time of occurrence. He was cross-examined at length

by the defence, but from the examination nothing could emerge

which can even suggest that the defence succeeded in creating

doubt on his evidence. In para-6, during his cross-examination he

– 19 –

categorically stated that at the place of occurrence, the police arrived

at about 6.30 P.M. He categorically stated that police after arrival at

the place of occurrence has prepared several documents and police

remained there for about two hours. In paragraph 8 of his cross-

examination, P.W.2 has stated that at the place of occurrence after

arrival of villagers of Muradpur and Baghi , his co-villagers also

arrived and he narrated the story to his villagers also. He stated that

Abhay Kumar Singh ( P.W.6), Arun Kumar Singh, Baijnath Singh

and others were there. He also admitted that Abhay Kumar Singh (

P.W.6) is his brother . In paragraph 13 of his cross-examination,

P.W.2 has reiterated that at the time of occurrence, deceased Bir

Kumar Singh was about 20-25 yards ahead of him and the whole

occurrence took place in between one and two minutes.

Accordingly, from the evidence of P.W.2, it is evident that P.W.1 is

truthful witness and his evidence cannot be doubted. P.W.3 Arun

Kumar Singh, who is own brother of deceased and P.W.1, has stated

that after the occurrence one Birendra Kumar Gupta @ Bhuer Sah (

who has been examined on behalf of the defence as D.W.7) arrived

at his residence and informed that his brother Bir Kumar Singh, co-

villager Nandu Chaurasiya and one another person had been

murdered near Harkhen river. Immediately after receiving

– 20 –

information, P.W.3 along with Abhay Kumar Singh ( P.W.6) ran

towards the place of occurrence and at the place of occurrence he

saw that dead bodies of his brother, co-villager Nandu Chaurasiya

and one another person were lying on the ground . At the place of

occurrence itself , Anil Kumar Singh ( P.W.1) informed him that

his co-villager Ashok Kumar Singh, Manoj Kumar Singh, Ram

Pravesh Singh, Bhola Singh , Brij Nandan Singh and two unknown

persons had killed them by fire arm. P.W.3 disclosed that thereafter

Pankaj Kumar Das, Sub Inspector of Police , seized blodd-stained

soil from the place of occurrence and prepared seizure list, over

which P.W.3 and one Baij Nath Singh ( P.W.5) signed as seizure

list witnesses. In dock, this witness identified his signature over the

seizure list, which was marked as Ext.3 and he also identified the

signature of Baijnath Singh, which was marked as Ext.3/1.

15. Sri Chitranjan Singh was examined as P.W.4. He

is the witness to the inquest report, which were prepared in between

7.15 P.M. and 7.45 P.M. on 1.3.2001 at the place of occurrence by

Sri Ram Babu Mandal ( P.W.9) , Sub Inspector of Police. The

inquest reports of three dead bodies of Nandu Chaurasiya, Bir

Kumar Singh and Hare Ram Singh were prepared in his presence

and he has signed on the said inquest report, which were marked as

– 21 –

Exts.4, 4/1 and 4/2. He has stated that the inquest report were

prepared in his presence and Sri Baij Nath Singh (P.W.5) at the

place of occurrence. It is pertinent to mention here that P.W.4 has

also disclosed that the place of occurrence was near Harkhen river.

16. P.W.5 Baijnath Singh S/O Deo Nandan Singh is

also witness to the inquest report. Similarly P.W.5 has been

examined and he disclosed that inquest reports of three dead bodies

were prepared at the place of occurrence near Harkhen river and he

had identified his signature over the same as Exts 4/3,4/4 and 4/5 .

In his cross-examination, P.W.5 has stated that after hearing hulla ,

he rushed to the place of occurrence.

17. P.W.6 Sri Abhay Kumar Singh deposed that on the

date of occurrence, i.e. on 1.3.2001 , he was sitting near the door of

his house along with Arun Kumar Singh ( P.W.3) and at about 5.45

P.M. his co-villager Birendra Kumar Gupta @ Bhuer Singh came

and informed that in Baghi Badhar , east to Harkhen river , Bir

Kumar Singh, Nandu Chaurasiya and one unknown person were

killed by fire arm injury. Immediately thereafter, he rushed to the

place of occurrence and after arrival he saw dead bodies of Bir

Kumar Singh, Nandu Chaurasiya and one unknown person lying at

the place of occurrence. He asserted that all the three persons died

– 22 –

due to fire arm injury . At the place of occurrence, P.W.1 Anil

Kumar Singh informed that co-villagers, namely, Ashok Kumar

Singh, Manoj Kumar Singh, Ram Pravesh Singh, Bhola Singh, Brij

Nandan Singh and other two unknown persons shot them dead. He

has further stated that his statement was recorded by the police at

the place of occurrence. Keeping in view the evidence of P.W.6 and

P.W.3 , it is clear that both the witnesses were present at their house

in village Bargaon at the time of occurrence and both of them were

informed by his co-villager regarding the occurrence and they

rushed to the place of occurrence and saw the dead bodies lying at

the place of occurrence. In the cross-examination of both the

witnesses, nothing could be extracted to create any doubt on

truthfulness of their evidence, and as such, their evidence is

completely reliable and trustworthy.

18. P.W.7 Baidnath Singh S/O Bikramaditya Singh has

been examined as a witness to the seizure list in respect of seizure of

three 30.06 fired cartridges and one 9MM fired cartridge which

were seized from the place of occurrence and he was one of the

signatories to the said seizure list. He identified his signature, which

was marked as Ext.3/2 on the said seizure list. In cross-examination,

this witness has said that he arrived at the place of occurrence at

– 23 –

about 6.45 P.M. he further disclosed that when he reached at the

place of occurrence, he saw his 7-8 co-villagers were present there.

19. Dr. Ashutosh Kumar has been examined as P.W.8

who had conducted postmortem examination and prepared

postmortem report on the three dead bodies. During his

examination, he proved the postmortem report. The postmortem

report on the dead body of Nandu Chaurasiya has been marked as

Ext.5, Postmortem report prepared on the dead body of Hare Ram

Rai has been marked as Ext.5/1 and postmortem report held on the

dead body of Bir Kumar Singh has been marked as Ext.5/2. In his

deposition, P.W.8 has stated that on the dead body of Nandu

Chaurasiya he found following ante-mortem injuries:

External injuries:

(i) Lacerated wound on the ventral aspect of upper

part of left fore arm size 3″x 1 ½” x muscle

deep

(ii) (ii) Lacerated wound on the left lateral aspect

of the abdomen size 4″ x 4″ cavity deep, the

part of the stomach and large intestine was

protruding outside .

Internal Injuries:

– 24 –

On dissection of skull brain matter and ménages were intact

and pale. On dissection of thorax right thoracic cavity was

filled with blood and the lung was lacerated. Right lung

was pale in colour . The chambers of the heart were empty.

Both the heart and lungs were pale.Diaphram was ruptured.

On dissection of abdomen stomach and liver were ruptured.

Abdominal cavity was filled with blood. A metallic

foreign body resembling bullet was found on the right side

of the abdominal cavity. There was 100 C.C. of urine in the

bladder. Both the kidneys and spleen were pale in colour .

In respect of dead body of Hare Ram Rai ,

P.W.8 deposed that he found following ante-mortem injuries:

External injuries:

(i) Lacerated wound on the anterior aspect of the

right side of the chest below right cavity lateral part size ½”

x ½” cavity deep it appears to be wound of entry with

inverted margin.

(ii) Lacerated wound on the anterior aspect

of right side of the chest 2″ below lateral part of right

clavicle with inverted margin ½” x ½”.

(iii) Lacerated wound on the anterior aspect

– 25 –

of upper part of the right arm with inverted margin ½” x ½

” and it appears wound of entry.

(iv) Lacerated wound on the posterior aspect of

right side of the chest with everted margin size 1 ½ ” x 2″ .

It appears to be wound of exit.

(v) Lacerated wound on the posterior aspect of the

upper part of the right arm with everted margin size 2″ x 2″

. It appears to be wound of exit.

On dissection, internal injuries.

On dissection of the skull, brain matter and

meninges were intact and pale in colour. On dissection of

thorax right thoracic cavity was filled with blood. Right

lung was lacerated. A metallic foreign body resembling

bullet was found on the right side of thoracic cavity. The

left lung was pale in colour. Heart was pale in colour and

chambers were empty. The stomach was pale containing

150 cc of partly digested food. Spleen, both kidneys and

liver were pale in colour. Urinary bladder contains 50 cc of

urine. On dissection of right upper limb, there was

connected fracture of upper part of right humorous.

Similarly, on the dead body of Bir Kumar Singh,P.W.8

– 26 –

deposed that he found following injuries:

External Injuries:

(i) Lacerated wound on the dorsal surface of left

hand in between 2nd and 3rd metacarpal bone with inverted

margin size ½” x ½” wound of entry

(ii) Lacerated wound on the palmer surface of the

left hand in between 2nd and 3rd metacarpal bones with

everted margin size 1″ x 1″

(iii) Lacerated wound on the right side of the back

in the middle oval with inverted margin size ¾” x 1″

cavity deep wound of entry

( iv) Lacerated wound on the left supra clavicular

region with everted margin size 1″ x 1 ¼”- wound of exit.

(v) Lacerated oval wound with inverted margin on

the left side of the neck with inverted margin size ½” x ½”,

i.e. wound of entry.

(vi) Lacerated wound on the lateral aspect of the

left shoulder size 3″ x 2″ x Muscle deep.

Internal Injury:

On dissection of skull brain and mengis all were

intact and pale in colour . On dissection of thorax both

– 27 –

thoracic cavity were full of blood. Both the lungs were

lacerated and pale in colour. Heart was ruptured and was

pale in colour . On dissection of abdomen stomach was pale

in colour containing 200 cc partly digested food. Spleen

was pale in colour. Both kidneys and liver were pale in

colour. Urinary bladder contains 100 cc of urine. On

dissection of right side upper limb, there was a metallic

foreign body resembling bullet was found on the

ateromedial part of right upper part.

20. P.W.8 deposed that cause of death of all the three

deceased were due to haemorrhage and shock following fire arm

injuries. He deposed in para-11 that fire-arms means regular or

country made rifle, gun or pistol.

21. Learned Senior Counsel, Sri Rana Pratap

Singh, who has appeared on behalf of the appellants, have

vigorously argued that in view of non-finding of any charring or

tattooing mark on the dead bodies, the story put forth by the

prosecution, particularly evidence of P.Ws 1 and 2 who have

claimed to be eye witnesses, come under the shadow of doubt. It is

necessary to answer the query of Sri Singh. From the evidence of

P.Ws 1 and 2 none can come to the conclusion that any fire-arm

– 28 –

injury was caused on any of the three deceased from the very close

range. P.Ws 1 and 2, who are the eye witnesses to the occurrence,

have never said that any firing was made from a very close range.

On this very point, Sri Kanhaiya Prasad Singh, learned Sr. Counsel

appearing on behalf of the informant, submitted that if fire arm

injury is caused on a body from a distance of a feet , there is no

possibility of sustaining any charring or tattooing mark. Since , it is

not a case of prosecution that firing was made from a very close

range , the court is not convinced with the arguments advanced by

Sri Rana Pratap Singh, Senior Counsel , that non-finding of

charging or tattooing mark on any of the dead bodies of deceased

belie the evidence of P.Ws 1 and 2 . We are of the view that on the

ground of non-finding of charring or tattooing mark on the body of

the deceased does not persuade us to disbelieve the evidence of

P.Ws 1 and 2 . On the contrary, the injuries found on the dead body

which were caused by fire arm and number of such injuries

corroborate the prosecution story that in the said occurrence

indiscriminate firing was made and due to that reason even one

passerby was also killed besides the murder of Bir Kumar Singh

and one another innocent, who was a co-villager, namely, Nandu

Chaurasiya .

– 29 –

22. In the present case, the Investigating Officer,

namely, Ram Babu Mandal has been examined as P.W.9. He

disclosed that he heard rumour in the evening regarding the murder

of three persons in Baghi- Muradpur Badhar. After hearing the

rumour , he recorded Sanha No.14 and for verification , he along

with Pankaj Kumar Das, Sub Inspector of Police, Officer Incharge

of Sahar ( not examined) along with arm-forces left the Police

Station for the place of occurrence and at about 6.30 P.M.(

evening) arrived at the place of occurrence and at the place of

occurrence, he recorded the fardbeyan of Anil Kumar Singh (

P.W.1) in presence of two witnesses, namely, Ranjit Rai ( not

examined) and Rakesh Kumar Singh ( P.W.2). He has extensively

explained and described regarding the place of occurrence. He has

stated that from the place of occurrence towards eastern side , a

road goes eastern side to Bantola, P.S. Ajimabad and from the place

of occurrence about 20.25 yards away, there is Harkhen river,

which is also known as Kumhari river. He stated that Muradpur

village was 200 Meter west from the place of occurrence. He

disclosed that at the place of occurrence, he prepared a sketch map

and inspected the place of occurrence and he did all the things at

the place of occurrence in the light of Petromax and in his presence,

– 30 –

Sri Pankaj Kumar Das, Officer Incharge seized the blood-stained

soil with blood from the place of occurrence and prepared a seizure

list . He also identified the signature of Officer Incharge, which was

marked as Ext.2/1. He also prepared dead bodies’ challan and sent

them for conducting postmortem. P.W.9 also identified the three

inquest reports which were marked as Exts.7, 7/1 and 7/2. In

paragraph-7 of his deposition, P.W.9 deposed that on the next date,

during the investigation, he arrest Ram Pravesh Singh and Brij

Nandan Singh and rest accused persons were found absconding. In

paragraph 9 of his deposition, he has stated that after getting

information that appellants Bhola Singh and Ashok Kumar Singh

were hiding in village Kukuraha he rushed there. However, none

could be arrested. He was informed by the villagers that appellant

Bhola Singh was functioning as Gram Sewak in Behea Block, and

as such, the Investigating Officer (P.W.9) visited Behea Block and

on enquiry he was informed by the staff of Behea Block that

appellant Bhola Singh was Panchayat Sewak in Dodhara- Tedhara

Gram Panchayat and since last one week , he was not coming to

office. After completing the investigation, he submitted chargesheet

against four appellants and further investigation in respect of

appellant,Bhola Singh and others was kept pending and thereafter he

– 31 –

was transferred from the said police Station and further

investigation against appellant Bhola Singh and two others was

taken up by the Sub Inspector of Police, Parma Nand Birua

(P.W.11). P.W.9, Ram Babu Mandal , has also proved the sketch

map in respect of place of occurrence and the same was marked as

Ext.8. In his cross-examination, the defence tried to establish that

the Investigating Officer had not conducted proper investigation and

even he had not mentioned anything in respect of seizure of bicycle

from the place of occurrence. In paragraph 18 of his cross-

examination, the Investigating Officer has admitted that in the case

diary, he has not mentioned regarding cycle or blood-stained cycle

recovered from the place of occurrence. From the cross-examination

of P.W.9 nothing has been brought on record to suggest that besides

non-mentioning of recovery of cycle in the case diary there were

any other infirmity in the investigation.

23. Sri Rana Pratap Singh has emphatically argued

that non-mentioning of recovery of cycle from the place of

occurrence in the case diary, creates serious doubt on the credibility

of prosecution case as well as bona fide of evidence of P.Ws 1 and

2. Sri Singh has further argued that since the Investigating Officer

had not seen any bicycle at the place of occurrence whereas P.W.2

– 32 –

had built up a case that cycles were lying at the place of occurrence,

it seriously discredit the claim of P.Ws 1 and 2 to be eye witnesses

. It is true that the Investigating Officer has not mentioned anything

regarding the cycle and subsequently one of the witnesses, i.e.

P.W.2 has stated that on the next date cycles were delivered by the

villagers .It gives an impression that the investigation up to this

extent can be said to be defective, but on the ground of defective

investigation, the prosecution case, which is otherwise believable

and truthful cannot be demolished. Time without number the

Hon’ble Supre me Court has held that defective investigation cannot

vitiate the case of the prosecution. In a case reported in 2003 AIR

SCW 717 ( Amar Singh Vrs. Balbindra Singh) the Hon’ble Supreme

Court has held that if the prosecution case is established by a direct

evidence of eye witnesses , any failure or omission of Investigating

Officer cannot render prosecution case doubtful or unworthy of

believe. The Hon’ble Supreme Court further in a case, reported in

2006 Cr.L.J,2618 ( Krishna SindeVrs. State of Maharashtra) while

considering the investigation and its defect has held that defective

investigation would not deter a court from convicting an accused if

court finds that dehors the defect accused can be convicted on the

basis of evidence on record .

– 33 –

24. Accordingly, the Court is of the view that merely

non-mentioning of recovery of bicycle in the case diary or non-

preparing of its seizure list can hardly be termed as an omission on

the part of the Investigating Officer and even in no stretch of

imagination the prosecution case in the facts and circumstances and

evidence, brought on the record can be doubted.

25. P.W.10 Tarkeshwar Prasad who is a formal

witness, has simply proved the written report dated 23.11.1999,

which is in the writing and signature of Anil Kumar Singh (P.W.1)

and the same has been marked as Ext.10. On the basis of said

written report, F.I.R. vide Ajimabad P.S. Case No.36 of 1999 was

formally drawn and the same has been marked as Ext.11. It is

necessary to mention here that P.W.1 has categorically stated that

for the demand of Rangdari by three of the appellants in the year

1999, said F.I.R. was registered against the appellants and

repeatedly appellants were putting pressure and threatening the

deceased and his family members to withdraw the case. The

witness has also stated that in the said case, chargesheet was

already filed . Accordingly, the reason for the present occurrence

has got direct relation with the registration of the F.I.R. in the year

1999. The Court can take judicial notice of the fact that during the

– 34 –

relevant period, kidnapping and Rangdari had grown up as an

industry in our State.

26. P.W.11 has conducted further investigation and has

submitted supplementary chargesheet against the appellant, Bhola

Singh.

27. In the present case, during the trial, as usual,

some of the appellants have taken the plea of alibi besides other

defence and in support of their case defence had examined

altogether seven defence witnesses. D.W.1 Jai Ram Pal who was the

Block Development Officer, Ara, being a public servant appears to

have come forward to save the skin of appellant Bhola Singh from

the charges of the case. He deposed that at the time of occurrence,

he was posted in Behea Block as Block Development Officer. He

further deposed that from 19.2.2001 to 3.3.2001, preparation of

Panchayat Election in the said Block was going on and they were

very busy in the said work . In the said work, all the Panchayat

Sewaks were kept engaged till late night and all the works were

being done in the supervision of D.W.1 as per his deposition. D.W.1

has specifically stated that on 1.3.2001 from 10.00A.M.in the

morningto8.00 P.M. night scrutiny of nomination papers were going

on. He emphatically stated that on the said date for the whole of

– 35 –

aforesaid period, Bhola Singh remained present in the Block Office

and he discharged his official duty. He had also granted a certificate

to this effect, which was under his writing and signature and the

same was marked as Ext.A. On perusal of Ext.A, it is evident that

D.W.1 had granted Certificate in favour of appellant Bhola Singh to

the effect that from 19.2.2001 to 3.3.2001 in his Block Office,

Panchayat Sewaks had discharged their duties in respect of

Panchayat Election, nomination, verification and preparation of

different forms. During that period Sri Bhola Pd. Singh, Son of Late

Ram Ekbal Singh, Village + P.O. Bargaon, P.S. Ajimabad, District-

Bhojpur used to remain in the office from 10.00 A.M. to 8.00 P.M.

and discharge the relevant works in respect of Panchayat Election.

Surprisingly, while being cross-examined, D.W.1 in para-4 has

candidly admitted that he learnt that Bhola Singh (appellant) had

been made accused in a murder case. He did not take any

administrative action against him. He further admitted in para-5 that

in the Block, there is not even a single chit of papers from where it

can be ascertained as to who had worked from which period to

which period on a particular date. From the cross-examination of

D.W.1, it is really surprising that as to how and under what

circumstances, Sri Jai Ram Pal, who was holding a responsible post

– 36 –

of B.D.O., Behea , Bhojpur was persuaded to issue such certificate

,i.e. Ext.A in favour of the appellant,Bhola Singh, even though he

was knowing well that appellant Bhola Pd.Singh was one of the

accused in a murder case. Instead of taking any administrative

action, D.W. 1 was kind enough to prepare a certificate in favour of

an accused who had committed a heinous crime. D.W.1 appears to

be so courageous that initially he issued such certificate i.e. Ext.A

and subsequently he even appeared before the trial court and on oath

he deposed in support of plea of alibi in respect of appellant, which

in the opinion of the Court was a false deposition. D.W.1 had also

brought on record the certificate, which was prepared to favour the

appellant Bhola Pd.Singh. We are of the opinion that when the

learned trial judge had already disbelieved the defence case he was

also obliged to take action while exercising jurisdiction under

Section 340 Cr.P.C. against D.W.1. Of course, while hearing the

present appeal, we are not issuing any such direction but the same is

only opinion of the Court. In view of the aforesaid discussions, the

evidence of D.W.1 does not inspire confidence, and as such, no

benefit can be given to the appellants, particularly appellant, Bhola

Pd.Singh.

28. In support of appellant Bhola Pd.Singh and also

– 37 –

with a view to corroborate the evidence of D.W.1, Ram Ayodhya

Singh, who was Panchayat Sewak in Barharwa Block, has come

forward as D.W.2. Similarly, he deposed that on the date and time

of occurrence, Bhola Prasad Singh was present and discharging his

official duty in the Block. However, in the cross-examination, he,

too, admitted that there is no such paper from which it could be

established that from 10.00 A.M. to 7.00 P.M. appellant Bhola

Singh had discharged his duty in office. D.W.2 has further admitted

in para-6 that appellant Bhola Singh was known to him since 1978-

79 and both were appointed simultaneously. In para-7 , he further

admitted that matrimonial village of his wife is village Kukuraha

and accused Bhola Pd.Singh was also having agricultural land in

village-Kukuraha. Accordingly, on the basis of his admission as

well as above discussions of the evidence of D.W.1, the evidence of

D.W.2 appears to be heavily doubtful and cannot be relied upon.

29. Sri Nand Kishore Singh (D.W.3) has come forward

to depose that on 1.3.2001 while he was sitting in the Post Office of

Ram Pravesh Singh ( Appellant) where one Birendra Kumar came

and informed regarding the murder of Bir Kumar Singh and Nandu

Panheri near Harkhen river. D.W.3 further disclosed that Birendra

Kumar is also known as Bhuer Sah who was his co-villager . In the

– 38 –

Post Office at that very time , appellants Ram Pravesh Singh, Ashok

Singh and Manoj Singh were sitting . He further stated that

Birendra Singh did not say as to who had committed the occurrence.

Thereafter, he rushed to the place of occurrence. He further stated

that Anil Kumar Singh ( P.W.1) was also with him either forward

or backward. In his cross-examination, D.W.2 has admitted that his

maternal village is Medinipur , which is in Nasirigang and his

maternal house is in the house of Balram Singh. In his cross-

examination, a suggestion was given that appellant Bhola Singh was

married to his sister and due to that reason with a view to save his

family, he made false deposition. From perusal of the examination-

in-chief of D.W.3 it appears that he not only tried to save the

appellant Ram Pravesh Singh but he also developed a new story

that at the time of occurrence he along with Ram Pravesh Singh,

Ashok Kumar Singh and Manoj Singh was also sitting in the post

office. The evidence of D.W.3 does not inspire any credibility in

view of the evidence of P.W.1 and P.W.2, which is consistent in

nature and the same has been corroborated by other evidences which

have already been discussed above.

Like D.W.3, D.W.4, namely, Ram Naresh Singh and

D.W.5 Shri Ram Singh have also tried to develop a story to support

– 39 –

the case of alibi of appellants and as discussed above, their evidence

is also not credible.

30. D.W.6 Baliram Bhagat has stated that while he

was at his door in the evening on the date of occurrence, he saw that

Bhuer was perturbed and running fastly. Thereafter, he asked and

then Bhuer replied that three persons have been killed near the river,

amongst them one was Bir Singh, second was Nandu Panheri and

third was unknown person. D.W.6 further stated that on enqury ,

Bhuer said that he was going to inform Anil Singh. He did not say

about the murderer. In his cross-examination, at paragraph5 , D.W.

6 has admitted that he does not remember the day of occurrence,

date of occurrence, month of occurrence or year of occurrence. In

para 6 he categorically admitted that when he met with Bhuer , it

was about 4.00P.M.( evening) . He further admitted in para-7 that

from his village to Kumhari river it takes ½ hours if one goes on

foot. In para 12 of his cross-examination, D.W.6 has further

admitted that Parshuram Singh was uncle of the informant(

P.W.1Anil Kumar Singh) and prior to the occurrence in between

Parshuram Singh and his family proceeding u/s 107 Cr.P.C. was

going on. From the evidence of D.W.6 , particularly paragraphs 6

and 7 referred above, it is difficult to imagine that if the occurrence

– 40 –

had taken place at about 5.30 P.M. and from the place of

occurrence, it takes ½ hours to reach village Bargaon ,i.e. village

of D.W.6 how Bhuer informed him regarding the occurrence at

about 4.00 P.M. The ill-will is also evident from the fact that in

between family of D.W.6 and the informant ,Criminal proceeding

under Section 107 Cr.P.C. was going on, and as such, nursing his

grudge D.W.1 appears to have come forward to depose falsely in

favour of the appellants.

31. D.W.7 is Birendra Pd.Gupta who has deposed that

on 1.3.2001, he was going along with Nandu Chaurasiya (

deceased) and while they reached near Harkhen river , he developed

natural call and then he asked Nandu Chaurasiya that he will come

later on and after attending natural call, while he was in midst of

washing , he heard sound of firing and thereafter he fled away . He

did not see any of the assailants. He ran to his village and thereafter

he narrated about the occurrence to his inmates. He also stated that

his statement was recorded by the Police. In cross-examination, he

admitted that at the time of occurrence , he was downward while

the occurrence had taken place at 10 ft raised place from the river

and due to that reason he could not see the assailants. From the

evidence of D.W.7 , it appears that the appellants are not in a

– 41 –

position to gather any favour from the evidence of D.W.7 , and as

such, the evidence of D.W.7 has got no relevant in support of the

appellants defence.

32. D.W.8 Madan Singh has stated that in the said case

occurrence took place on 1.3.2001 at about 4.30 P.M. He further

stated that in his village market, Bhuer Sah came at 5.00 P.M. and

informed that Bir Singh and Nandu Chaurasiya and one unknown

person had been killed. After noticing the said information, he

rushed to the place of occurrence along with Anil Singh ( P.W.1) ,

Rakesh Kumar Singh ( P.W.2) and many others. He stated that Anil

Singh who is the informant, was with him while they reached the

place of occurrence. In his cross-examination at para.4 , he

admitted that he never discussed with any one about the

information, which was given by Bhawar Sah. In his cross-

examination, at paragraph 8, he has admitted that he was an accused

in Sessions Trial No.128 of 1997 for the offence u/S 307 I.P.C.

which was registered on the information of one Shailu Chaoudhary .

However he denied the suggestion that Shailu Choudhary was

labourer of Anil Singh ( P.W.1) . He also denied the suggestion that

accused were his relative. The story set forth by D.W.8 also appears

to be not believable particularly due to the reason that there is

– 42 –

consistent evidence of P.W.1 and P.W.2, which have been

corroborated by other evidences and on the basis of discussions

made herein above, the evidence of P.Ws 1 and 2 cannot be

discarded , and as such, the evidence of D.W.8 appears to be

unworthy and doubtful and the same has been created only with a

view to create false claim of the appellants to show their innocence.

33. In view of the evidences discussed above, it is

evident that P.Ws. 1 and 2 are the real eye witnesses, who had seen

the occurrence and identified the appellants as assailants, and as

such, the evidence of P.Ws 1 and 2 are trustworthy and cannot be

doubted. Further argument was advanced on behalf of the appellants

that the F.I.R. was prepared belately inasmuch as the inquest reports

bear the time of its preparation between 7.15 P.M. to 7.45 P.M.

whereas the F.I.R. was lodged at 11.30 P.M. on the same night .

P.W.9 was pointedly cross-examined by the defence on the point

that how before the registration of the F.I.R. , which was done at

11.30 P.M. on 1.3.2001in the inquest reports, which were prepared

in between 7.15 P.M. to 7.45 P.M. , F.I.R. number was described ?

Answering to this question, D.W.9 has categorically stated that from

the place of occurrence while preparing the inquest reports he got

information through wireless set from the police Station as to which

– 43 –

number was going to be assigned in the present case, and as such, he

recorded the case number in the inquest reports, which were

prepared in between 7.15 P.M. to 7.45 P.M. on the date of

occurrence. This answer of P.W.9 went unchallenged. It was not got

contradicted by the defence, and as such, the Court has got no

option but to rely on the evidence of P.W.9 on the point of

mentioning the case number in the inquest reports even though

F.I.R. was registered later.

34. Sri Rana Pratap Singh has also emphatically argued

that though the F.I.R. was registered on 1.3.2001 at 11.30 P.M. the

same was received/seen by the C.J.M. on 3.3.2001. Taking the plea

of delayed receipt of the F.I.R. in the Court Sri Singh developed his

argument that the F.I.R. was concocted and no one had seen the

occurrence. After going through the evidence of P.Ws 1 and 2,

there is no doubt to hold that the fardbeyan was recorded at the

place of occurrence itself. It has been corroborated by the

Investigating Officer who is P.W.9 as well as other evidence. In

the present case, it is not in dispute that immediately after recording

fardbeyan the police prepared inquest report at the place of

occurrence, seized blood-stained soil from the place of occurrence

and also prepared seizure list in respect of recovery of empty

– 44 –

cartridges from the place of occurrence and at the place of

occurrence itself, statements of witnesses were recorded. So, it

seems reasonable that immediately after the occurrence, the police

started investigation and at 11.30 P.M. On the same date F.I.R. was

formally drawn up and on the next date,i.e. on 2.3.2001, the F.I.R.

was shown to be dispatched from the police Station and the same

was received on the next date i.e. 3.3.2001 in the court of C.J.M..It

is also very much relevant to mention that on three dead bodies

post-mortem was held in the morning on 2.3.2001. So, on the basis

of time and date of events mentioned herein above the Court is of

the view that delay in receipt of the F.I.R. in the Court was not such

a delay, which creates a doubt on the prosecution case nor it can be

viewed that a false case was concocted, particularly in view of the

evidences adduced by the prosecution. Even for the time being if it

is assumed that some delay has occurred in receipt of the F.I.R. in

the court below, we are of the view that merely delay in receipt of

F.I.R. in the court does not vitiate the prosecution case, if the

prosecution case is otherwise established. Sri Rana Pratap Singh,

Senior Counsel emphasizing his arguments that delayed receipt of

F.I.R. frustrates the prosecution case, has referred the case of

Thanedar Singh, reported in (2002) 1 SCC, 487 ( Thanedar Singh

– 45 –

Vrs. State of Madhya Pradesh) and pointedly referred paragraph

5.2. of the said Judgment. For the sake brevity, it is apt to quote

paragraph 5.2. of the said Judgment:-

“5.2.P.W.6 did not reveal to his kith and kin and the
villagers who came to the place of occurrence in the
morning about the names of any of the accused, however, he
deposed that the names of the accused persons were
mentioned in Jagjit, Balmukund and Maharaj Singh, but,
they were not examined. As seen from the cross-examination
at para 24 , he did not even disclose the name of the alleged
assailant to his son Banari. Had he identified the accused,
who were known to him, he would have in the normal
course disclosed the names at least to his close relations.
This fact should be viewed in the context of the defence
version that the F.I.R. was not recorded at the time and date
it was purportedly recorded. Complaint was supposed to
have been lodged by P.W.8 at 9 a.m. on the morning
following the night of occurrence. The defence produced a
certified copy of the FIR received by the Court of the First
Class Judicial Magistrate, Amba, in which a note written by
the clerk of the court showed that it was received on
21.5.1982. That document is Ext.D-4. The evidence of the
date of sending the copy of F.I.R. to the Magistrate’s court
was not adduced by the prosecution in spite of giving more
than one opportunity , as borne out by the endorsements on
the order sheets dated 28.11.1984 and 7.12.1984. On
28.11.1984, it was noted that adverse inference will be
drawn if the record was not produced. Yet, the prosecution

– 46 –

failed to adduce proof . A specific suggestion was put to
P.W.10 ( SHO, Sihonia P.S.) that FIR was prepared 2 or 3
days after the occurrence which, of course, was denied.
PW10 admitted that no attempt was made to apprehend the
accused on 19th and 20th May. It is significant to note that the
crime number/FIR number is not to be found in the inquest
report (P-6), site Plan ( P-5) or P-8 which is a requisition
sent to the hospital for postmortem. No reference
whatsoever is made in Ext.P-6 about the information, if any,
furnished by PW8 or PW6 . All this would support the
defence version that FIR (P-10) in which the names of the
accused were mentioned would have probably come into
existence much later. In this context it is apposite to refer to
the decision of this Court in Meharaj Singh V. State of U.P.
There also the question whether FIR was ante-timed to rope
in the accused after some deliberations or to suit the
investigation came up for consideration. Dr.A.S. Anand,J.(as
His Lordship then was) speaking for the Bench observed
thus:(SCCpp 195-96,para12)
“12. FIR in a criminal case and particularly in
a murder case is a vital and valuable piece of evidence
for the purpose of appreciating the evidence let at the
trial. The object of insisting upon prompt lodging of
the FIR is to obtain the earliest information regarding
the circumstance in which the crime was committed,
including the names of the actual culprits and the parts
played by them, the weapons, if any, used, as also the
names of the eyewitnesses, if any. Delay in lodging the
FIR often results in embellishment, which is a creature

– 47 –

of an afterthought . On account of delay, the FIR not
only get bereft of the advantage of spontaneity, danger
also creeps in of the introduction of a coloured version
or exaggerated story. With a view to determine
whether the FIR was lodged at the time it is alleged to
have been recorded, the courts generally look for
certain external checks. One of the checks is the receipt
of the copy of the FIR, called a special report in a
murder case, by the local Magistrate. If this report is
received by the Magistrate late it can give rise to an
inference that the FIR was not lodged at the time it is
alleged to have been recorded, unless, of course the
prosecution can offer a satisfactory explanation for the
delay in dispatching or receipt of the copy of the FIR
by the local Magistrate. Prosecution has led no
evidence at all in this behalf . The second external
check equally important is the sending of the copy of
the FIR along with the dead body and its reference in
the inquest report. Even though the inquest report,
prepared under Section 174 Cr.P.C. is aimed at serving
a statutory function, to lend credence to the
prosecution case, the details of the FIR and the gist of
statements recorded during inquest proceedings get
reflected in the report. The absence of those details is
indicate of the fact that the prosecution story was still
in an embryo state and had not been given any shape
and that the FIR came to be recorded later on after due
deliberations and consultations and was then ante-
timed to give it the colour of a promptly lodge FIR. In

– 48 –

our opinion, on account of the infirmities as noticed
above, the F.IR has lost its value and authenticity and
it appears to us that the same has been ante-timed and
had not been recorded till the inquest proceedings were
over at the spot by PW.8″

Earlier, the fact that the number of FIR or crime number
was not found in the inquest report or in the requisition for
the post-mortem was adversely commented upon by the
learned Judges. The fact situation is more or less the same
here. We do not think that there is anything in the decision
of this Court in Shiv Ram V State of U.P. which goes
against the legal position laid down in Meharaj Singh case.
No broad proposition can be said to have been enunciated in
that later case that inordinate and unexplained delay in
sending the F.I.R. to the Magistrate would be an immaterial
factor liable to be ignored altogether.”

There is no dispute in respect of proposition of law laid

down by Hon’ble Supreme Court on this point. However, most

important thing while considering the delayed receipt of F.I.R. is to

see as to whether the prosecution has established a case that

fardbeyan was recorded with promptitude and thereafter

investigation, such as preparation of inquest report, seizure list,

recording of statements, have commenced with immediate effect or

not and if the prosecution is in a position to establish the fact that

after the occurrence fardbeyan was recorded immediately and

– 49 –

thereafter investigation had commenced, then delayed receipt of the

F.I.R. in the court losses its significance . In Pala Singh’s case,

reported in AIR 1972 SC 2679 ( Pala Singh & Anr Vrs. State of

Punjab), the Hon’ble Supreme Court while considering the delayed

receipt of F.I.R. has held that delay in receipt of occurrence report

by the Magistrate by itself does not make the investigation tainted .

Paragraph nos.3 and 7 of the said Judgment , if it is quoted would

suffice the purpose and same are as follows:

“3. The learned Additional Sessions Judge
acquitted all the accused persons holding that the
Assistant Sub Inspector , Kashmiri Lal, whop had
investigated the offence had not performed his duties
in a fair and straightforward manner and that the
prosecution evidence was not trustworthy so as to
bring home the offence to the accused beyond the
possibility of a reasonable doubt. The trial court
expressed the view that the first informant report had
been recorded after great delay and after there had
been consultation with the interested persons. The
special report had also not reached the duty magistrate
till after the expiry of 8 or 9 hours though the duty
magistrate lives in the same town. The inquest report
prepared by A.S.I. Kashmiri Lal had also been
tampered with inasmuch as there were interpolations
in the statements of at least two witnesses recorded
herein. Gokal Chand ( P.W.3) was also disbelieved

– 50 –

by the trial court and so was Trilochan Singh (
P.W.9). The recovery of blood -stained sword at the
instant of Trilok Singh, appellant, was also discarded
as unreliable. The site plan prepared by A.S.I.
Kashmiri Lal was also held to have been prepared
not, as it purported to be, before 9.45 a.m. but long
thereafter when he had decided to implicate Hazara
Singh also as a party to the conspiracy under S.120B
,I.P.C. As observed earlier, all the accused were
acquitted by the learned Additional Sessions Judge.

7. Shri Kohil strongly criticized the fact
that the occurrence report contemplated by S.157
Cr.P.C. was sent to the magistrate concerned very late.
Indeed, this challenge, like the argument of
interpolation and belated dispatch of the inquest
report, was developed for the purpose of showing that
the investigation was not just, fair and forthright and,
therefore, the prosecution case must be looked at with
great suspicion. This argument is also unacceptable.
No doubt , the report reached the magistrate at about
6 p.m. S.157, Cr.P.C. requires such report to be sent
forthwith by the police office concerned to a
Magistrate empowered to take cognizance of such
offence. This is really designed to keep the magistrate
informed of the investigation of such cognizable
offence so as to be able to control the investigation
and if necessary to give appropriate direction under
S.159.But when we find in this case that the F.I.R.
was actually recorded without delay and the

– 51 –

investigation started on the basis of that F.I.R. and
there is no other infirmity brought to our notice , then,
however improper or objectionable the delayed
receipt of the report by the magistrate concerned if
cannot by itself justify the conclusion that the
investigation was tainted and the prosecution
insupportable. It is not the appellants’ case that they
have been prejudiced by this delay.”

35. On this very point, it is also relevant to refer a

Judgment of the Hon’ble Supreme Court, reported in 2007 AIR

SCW 684 ( Sarvesh Narayan Shukla Vrs. Durga Singh & Ors.) In

the said case also, the F.I.R. was received much after the lapse of

several days i.e. on 4.4.2009 the incident had taken place, however,

special report by the Magistrate was received on 8.4.2009. The

Hon’ble Court was of the view that since after the occurrence ,

police had taken immediate steps and in that way inquest report was

prepared and dead body was sent for postmortem immediately, and

as such, the delayed receipt of the F.I.R. was considered by the

Hon’ble Supreme Court as no significance. In the case in hand ,

there is specific case of prosecution that the occurrence was

witnessed by P.Ws 1 and 2 who were coming along with deceased

Bir Kumar Singh, immediately thereafter ,i.e. within an hour the

police arrived at the place of occurrence and recorded the fardbeyan

– 52 –

of the occurrence at 6.30 P.M., in between 7.15 P.M. and 7.45 P.M.

inquest reports of all the three dead bodies were prepared , F.I.R.

was drawn up at 11.30 P.M. and at about 10.00 the dead bodies

were sent for conducting postmortem examination and thereafter

postmortem was held in the morning on 2.3.2001, and as such, the

argument of learned counsel questioning the veracity of the

fardbeyan or alleging ante-dating of the F.I.R. appears to be not

sustainable and is fit to be rejected.

36. So far as the arguments advanced on behalf of the

appellants on the point that no charring/tattooing was found on the

injuries of any of the deceased creates doubt on the claim of

evidence of P.Ws 1 and 2 is concerned, we are of the view that in

the present case, there is no inconsistency between ocular or

medical evidence. It is consistent case of prosecution that the

deceased were fired not from very close range. In absence of

specific case of firing by close range there is no possibility of

having charring /tattooing mark on the injuries, and as such, the

arguments of the learned counsel on this point also fails.

37. Learned Senior Counsel, Mr. Rana Pratap Singh has

further argued that in support of prosecution case, except the official

witnesses, all witnesses are directly or indirectly related to each

– 53 –

other. It was argued that P.W. 3 is own brother of the informant (

P.W.1) and deceased. Similarly, P.W.6 is brother of P.W.2 who is

cousin of the informant and P.W.3. Accordingly, learned Senior

Counsel emphasized that the witnesses are relative and interested,

and as such, their evidence may not be termed as truthful and

reliable. We may indicate that law is settled on the point that the

evidence of a relative cannot be discarded if the same is inspiring

confidence. The evidence of P.Ws 1 and 2 , as discussed above, do

not creat any doubt in the mind of the Court that the same does

inspire confidence and the same cannot be ignored . Learned Senior

Counsel ,Sri Rana Pratap Singh has argued that in any event

evidence of only one witness,i.e. P.W. 1 can be looked into with

suspicion and on the basis of P.W.1, the conviction of all the

appellant appears to be not sustainable .While replying this question

Sri Kanhaiya Prasad Singh, learned Senior Counsel for the

informant, invited our attention to the provisions contained in

Section 134 of the Evidence Act and to corroborate this provision,

the learned senior Counsel also referred to a Judgment of Hon’ble

Supreme Court , reported in AIR 1983 SC 126 ( Maqsudan Vrs.

State of Uttar Pradesh) . At this juncture, it is necessary to quote the

provision contained in Section 134 of the Evidence Act, 1872,

– 54 –

which is as follows:

“134.No particular number of witnesses shall in any

case be required for the proof of any fact.”

38. The Hon’ble Supreme Court has categorically held

that in a case, number of witnesses hardly matter. It is quality of

evidence, which is to be looked into. In view of the statutory

provision of the Evidence Act as well as law laid down by the

Hon’ble Supreme Court , there is not doubt in the mind of the Court

that evidence of P.Ws 1 and 2 in the facts and circumstances of the

present case can be ignored .

39. The plea taken on behalf of the appellants

regarding non-examination of any witness from the village

Muradpur is simply to be noticed and rejected.It is specific case of

prosecution that due to non-withdrawal or compromise of earlier

case,i.e. Ajimabad P.S. Case No.36 of 1999 , the appellants had

committed the present crime. If the conducts of appellants are

examined on this point of view one can easily come to the

conclusion that why witnesses from Muradpur village had not dared

to depose against the appellants or in support of prosecution case.

In view of the facts and circumstances as mentioned herein

above, it is evident that the prosecution has proved its case beyond

– 55 –

all reasonable doubt and the learned trial judge while convicting and

sentencing the appellants has not committed any error or mistake,

and as such, both the appeals fail and the same are dismissed.

Accordingly, both the appeals stand rejected.

( Rakesh Kumar, J)

Dharnidhar Jha, J: I agree.

( Dharnidhar Jha, J)

Patna High Court,Patna
Dated: the 29th January,2010
Nawal Kishore Singh/ A.F.R.


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