GOVT. APPEAL (DB) No.5 of 2003
With
Cr.Appeal(SJ)No.199 of 2003
Against the judgement of conviction and order
of sentence dated 4.4.2003 passed by Sessions
Judge, Ist Fast Track Court,Ara in Sessions
Trial No.411 of 1992.
GOVT.APPEAL(DB)NO.5 of 2003
THE STATE OF BIHAR---------------------------Appellant.
Versus
1.PRAVEEN KUMAR SINGH,
2.SUSHIL KUMAR SINGH,
3.BINAY KR.SINGH &
4.BIJAY KR.SINGH-----------------------------Respondents.
CR. APPEAL (SJ) No.199 of 2003
PRAVEEN KUMAR SINGH--------------------------Appellant
Versus
STATE OF BIHAR-------------------------------Respondent
----
For the appellants:-1.Sri Krishna Prasad Singh Sr.Advocate
2.Sri Manindra Kishore Singh, Advocate
3.Mrs. Meena Singh, Advocate
For the State:- Miss Shashi Bala Verma, A.P.P.
For the Informant:- 1.Sri Ajay Kumar Thakur,Advocate
2.Sri Harendra Pratap Singh,Advocate
3. Sri Satyapal Singh,Advocate
P R E S E N T
THE HON'BLE SRI JUSTICE DHARNIDHAR JHA
THE HON'BLE SRI JUSTICE BIRENDRA PRASAD VERMA
Dharnidhar Jha & The Govt. Appeal along with the appeal preferred
Birendra Prasad
Verma,JJ.
by appellant Praveen Kumar Singh arise out of the
judgement dated 4.4.2003 passed by Fast Track Court No.1,
Ara in Sessions Trial No.411 of 1992. The four accused
persons were put on trial for a charge under Section 302
IPC by the trial court, out of whom appellant Praveen
Kumar Singh was the only accused who was named in the FIR.
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The remaining three accused persons were summoned under
Section 319 Cr.P.C. and were put on trial along with
appellant Praveen Kumar Singh. While delivering the
judgement the learned trial Judge acquitted accused Sushil
Kumar Singh, Bimal Kumar Singh and Bijai Kumar Singh of
the charge under Section 302 of the Penal Code. As regards
appellant Praveen Kumar Singh he was also acquitted under
Section 302 of the Penal Code for the reason that the
learned trial Judge felt that offence was not made out in
the face of the evidence available on record and an
offence under Section 304 part-II IPC could be what
appeared committed by appellant Praveen Kumar Singh.
Accordingly, the appellant Praveen Kumar Singh was
sentenced to suffer rigorous imprisonment for ten years.
2. The appellant Praveen Kumar Singh has
questioned the propriety of the finding of his guilt and
the appropriateness of the sentences passed upon him,
whereas the Government Appeal has been preferred by the
State of Bihar to challenge the acquittal of the accused
persons under Section 302 of the IPC as also the finding
of the learned trial court on guilt of appellant Praveen
Kumar Singh of committing offence under Section 304 II
IPC. It further prayed that the sentence passed upon
Praveen Kumar Singh had to be enhanced by setting aside
his acquittal under Section 302 of the IPC and the
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acquittal of the other respondents of the Government
Appeal.
3. We have heard the two appeals together and we
are disposing them of by the present judgement.
4. Ravindra Kumar Singh, the son of Shivjee
Singh(P.W.6) and some other boys were roasting gram-plants
for preparing oraha. It is alleged that accused appellant
Praveen Kumar Singh came there and started giving repeated
blows with a piece of bamboo as a result of which Ravindra
Kumar Singh was badly injured. The informant claimed
seeing the occurrence from a place outside his house.
5. The informant with the help of Nawami Singh(not
examined), Shatrghna Singh(not examined)and others who
also rushed to the place of occurrence, brought his son
to Ara Sadar Hospital where he was treated but was
referred to Patana Medical College Hospital and,
accordingly, the informant brought injured son to that
hospital in Patna. Ravindra Kumar Singh breathed his last
on the 15th of March, 1992 at about 5.30 P.M. and
thereafter the fardbeyan(Ext-2)of P.W.6 was recorded by
Pirbahore police station. It was stated by the informant
that some of the family members of appellant Praveen Kumar
Singh had assisted him in commission of the offence.
6. On the basis of Ext-2, the FIR of the case(Ext-
3)was drawn up by P.W.7 and he himself took up the
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investigation. He came to the village of occurrence and
inspected the place where the occurrence had taken place.
According to P.w.7, it was an open barren piece of land
situated by the side of the road which was running from
Pipra to some other places to its south. P.W.7 found marks
indicating that the gram-plants had been roasted. He also
inspected the surrounding houses and structures near about
the place of occurrence and noted down their description
in the case diary. He, thereafter, recorded the statements
of witnesses, obtained the postmortem examination report
and other documents from Patna and, finding the materials
sufficient, sent up the accused Praveen Kumar Singh for
trial.
7. As noted at the very outset, three other
respondents of the Government Appeal were summoned under
Section 319 Cr.P.C. and were also put on trial along with
Praveen Kumar Singh which ultimately ended in the impugned
judgement.
8. The defence of the accused persons was that no
occurrence in the manner had really occurred and that the
accused persons had been implicated falsely on account of
some ill-will between the parties.
9. The prosecution examined eight witnesses in
support of the case. P.W.1 Sheokaran Singh, P.W.2 Rambabu
Singh who was also the son of P.W.6 and brother of
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deceased, P.W.3 Pradip Kumar Singh and P.W.4 Hare Murari
Singh gave evidence on the point that they along with the
deceased had on the day of the occurrence indulged in
roasting of gram-plants when the occurrence took place.
They implicated the four respondents of the Government
Appeal in different acts by stating that the accused
persons came there and started quarreling with them and
when the deceased protested the intervention of the
accused persons in the acts of the deceased and witnesses,
there was an altercation and ultimately, accused Bimal
Kumar Singh and Bijai Kumar Singh remonstrated to assault
the deceased. They further stated that accused Sushil
Kumar Singh caught the waist of the deceased and appellant
Praveen Kumar Singh dealt blows with a piece of bamboo as
a result of which the deceased was injured and fell
unconscious who ultimately died in Patna. P.W.5 Ram Niwas
Singh, an eye witness has also given account of the
occurrence in the same manner as was given by P.Ws.1 to 4.
P.W.6 Shivjee Singh is the informant of the case and he
besides stating the fact that Praveen Kumar Singh dealt
blows with a piece of bamboo upon his son, also stated
that there was a remonstration by two accused persons of
the family of accused Praveen Kumar Singh and further that
one young man caught the waist of the informant whereupon
accused Praveen Kumar Singh brought a piece of bamboo from
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his Dalan(Dalan is a place meant for men folk of a
family)and blows were given by appellant Praveen Kumar
Singh repeatedly on the head of Ravindra Kumar Singh as a
result of which he fell down unconscious and he was
brought to Sadar Hospital, Ara from where the deceased was
referred to Patna Medical College & Hospital and
ultimately, Ravindra Kumar Singh died there. P.W.6 gave
his statement (Ext-2) before the Pirbahore police. P.W.7,
S.I. Raj Bali Choudhary is the investigating officer and
P.W.8 Dr. Sunil Kumar Singh had held postmortem
examination on the dead body of Ravindra Kumar Singh and
prepared the postmortem examination report(Ext-4).
10. The defence did not examine any witness nor
they produce any documentary evidence.
11. On consideration of the evidence on record the
impugned judgement was passed.
12. We have heard Sri Krishna Prasad Singh, the
learned senior counsel appearing for the sole appellant of
the Criminal Appeal and the four respondents in the
Government Appeal. We have heard Miss Shashi Bala Verma in
support of the Government Apeal and we have also heard Sri
Ajay Kumar Thakur, the learned counsel appearing for the
informant in both the appeals.
13. Sri Singh, the learned senior counsel for the
solitary appellant as also the four respondents, has taken
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us through the evidence of witnesses and contended that
there are many pit-falls in the evidence of the
prosecution. Sri Singh drew our attention, firstly, to the
evidence of P.W.6 (informant) and submitted that as per
the evidence of P.W.6 himself he remained in Ara for more
than six hours and was also approached by the police for
giving his statement to them but not only did he not give
the statement, but flatly refused to do it unless his son
had regained consciousness. Sri Singh contended that in
fact the informant was not knowing the facts of the case
or in other words, the manner in which the occurrence had
taken place and, as such, he was not ready to give his
statement. It was contended further that the above conduct
of the informant appears a doubtful conduct inasmuch as
there could be probability arising out of the evidence
that he may not be present on the day of occurrence at
the village in the above connection. Sri Singh drew our
attention to the evidence of P.W.1 Sheokaran Singh in
paragraph 12 in which he has stated that he did not see
the informant on the day of the occurrence and in fact,
had met Rambabu Singh(P.W.2) and had stated to him about
the facts of the occurrence. Sri Singh further contended
that the informant in the same paragraph has admitted
that when he had come back after performing the last rites
of his son, he was told by P.W.5 Ram Niwas Singh and Ram
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Kumar Singh(not examined)as to who were the other accused
persons who had caught hold of his son. This goes to
indicate, submitted Sri Singh, that the informant was a
person who was always inclined to lend his ears to others
and act accordingly. Sri Singh was highly critical of the
conduct of the informant, in not stating in the FIR itself
that some other persons either remonstrated the accused
Praveen Kumar Singh to assault or some one had caught hold
of the waist of the deceased. It was contended that the
basic prosecution case contained in Ext-2, appears being
completely departed by the prosecution when the witnesses
introduced the story that other boys like P.Ws.1 to 4 were
also assaulted by the accused persons, as has been
narrated by those witnesses. Sri Singh contended that when
there is a tendency in the witnesses of changing the
prosecution case from stage to stage or when there could
be a tendency in a witness to implicate some innocent
persons falsely, then the court must not accept the
evidence of such witnesses to sustain the conviction.
14. Sri Ajay Kumar Thakur, the learned counsel
appearing for the informant, attempted his best to
convince us that the informant may not have known the
facts initially but as soon as he knew it, he was
forthright in making his statements before the police as
also in the court about the full facts of the case. Sri
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Thakur was candid in conceding as regards the acquittal of
the three respondents than Praveen Kumar Singh of the
Govt. appeal that order passed by the learned trial Judge
appears proper. Sri Thakur was putting before us the
background facts of the case, as appearing from the
evidence of P.W.3 Praveen Kumar Singh and submitted that
it was some days of holidays and the children were roaming
around the fields and were indulging in the acts of
preparing oraha and the occurrence appears taking place
during that course. Sri Thakur contended that the pit-
falls which were highlighted by Sri Singh, the learned
counsel for the appellant, may not be telling the whole of
the prosecution case. Sri Thakur submitted that the
judgement passed by the learned trial Judge as regards the
conviction of Praveen Kumar Singh appears partially not
sustainable as the offence under Section 302 was clearly
made out. Sri Thakur, as such, suggested to us that we
should upset the finding of the learned trial Judge
acquitting the appellant Praveen Kumar Singh of the charge
under Section 302 of the Penal Code and should hold him
guilty, instead of an offence under Section 302 of the
Penal Code and inflict an appropriate sentence as deemed
fit and proper under the facts of the case.
15. The FIR of the fardbeyan may not be a
substantive piece of evidence. Nonetheless, it does not
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lose the importance of being the basic document of the
prosecution which contains many important details and
facts. The defence could by reading out the contents of
the document, like the fardbeyan and the FIR, to make a
submission to the court as to what was the basic
prosecution case and how the witnesses of the prosecution
deviated from its fundamental story and have made
improvements and embellishments. In other words, the
defence could be entitled in making the submission on
leading evidence by the prosecution in a manner different
from the facts as narrated in the FIR. The defence, thus,
may submit that the prosecution had admitted or had really
created a third story which was never its case and as such
could argue before a court of law not to accept the
evidence of witnesses who have made a departure from their
earlier statements or who have given evidence which could
be in conflict with the basic prosecution story. This is
why this court had repeatedly held that FIR is the most
potent weapon in the hands of the defence so as not only
to challenging the very veracity of its story, but also
the credibility of its witnesses.
16. When we come to the FIR, what we find is that
many parts of the story which were presented by the
witnesses specially, by the four boys examined as P.Ws.1
to 4 and also by P.W.5 were not contained in that
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document. Sri Thakur was submitting to convince us that
the court must not lose sight of the psychological state
of mind of the informant who was carrying his unconscious
son from his village to Ara Sadar Hospital and from there
to P.M.C.H. and, as such, the court should give some
allowance to P.W.6 in not putting down in Ext-2 the story
which was propounded by P.Ws.1 to 5 when they were stating
before the court that other persons than appellant Praveen
Kumar Singh also came with him simultaneously and
assaulted them with fists and slaps and thereafter Praveen
Kumar Singh, at the remonstration of two accused persons
namely, Bimal Kumar Singh and Bijai Kumar Singh gave
repeated blows with a piece of bamboo on the head of the
deceased. This part of the story is not in Ext-2, the
fardbeyan. P.W.2 who is the son of informant and brother
of the deceased was cross-examined on the above facts in
paragraph 8 of his evidence. He has stated to be assaulted
repeatedly. This story as narrated by P.W.2 does not
appear to be stated by P.W.1 that he was also assasulted
by one of the accused persons. Likewise, P.W.3 Pradip
Kumar Singh also does not state as to who assaulted which
of the witnesses as may appear from the very examination-
in-chief of P.W.3. Thus, we find that this part of the
story which was conspicuous by its absence in the FIR
appears introduced by the witnesses. Not only that P.W.6
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the informant has also given similar story in his
evidence. This appears to us quite an improvement in the
prosecution story which was not initially available to the
court.
17. P.W.6 the informant did not state in his
fardbeyan that any other person had either remonstrated or
had assaulted the witnesses also. What was stated was
that some other family members of appellant, Praveen Kumar
Singh had also participated with him in the commission of
the offence. It was not a case of simple participation by
mere presence at the site of the occurrence, it appears
from the reading of the evidence of witnesses a clear case
of participation by doing some overt-act of administering
assault to the witnesses and the deceased. The informant
was an eye witness. He has stated in his fardbeyan that he
saw the occurrence after going somewhere near the place of
occurrence. The evidence of P.W.6 recorded by the learned
trial Judge also gives the same impression that he was an
eye witness. He had perceived the occurrence from his own
eyes but he did not state the above facts in his
fardbeyan.
18. Not only the above, he has also admitted in
paragraph 6 of his evidence that he arrived in Sadar
Hospital, Ara, the police came there and wanted to record
his evidence, but he refused giving his evidence to them
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on the pretext that it was not possible for him unless his
son had regained consciousness. Sri Singh was rightly
contending that P.W.6 had remained in Ara for over six
hours. This could be collected by reading the evidence of
P.W.6 in paragraph 6 when he stated that he started from
Ara for Patna when it was still some part of the night and
when he reached P.M.C.H., Emergency Ward, it was almost
dawn and ultimately the deceased died on that particular
day at 5.30 P.M.. P.W.6 has stated that he reached Ara at
6 P.M. on 14.3.1992. Thus, Sri Singh has rightly contended
that he was in Ara for almost the whole night of the
incident, i.e., for more than six hours. It is not that he
was all alone. He has admitted in his evidence in same
paragraph 6 that when he started from the village with his
injured son, he was accompanied by Ram Kumar Singh(not
examined)who remained there with him and came back to his
village by the same vehicle. He has further admitted that
when he came back after performing the last rites of his
son, he was informed by P.W.5, Ram Niwas Singh and Ram
Kumar(not examined)as to who was the other person who
caught his son and, accordingly, it could be deduced that
he named the other accused persons only when he was told
by the above two persons about their names. The above
evidence raises an inference in our minds that P.W.6 is a
person who was prone to listening to other persons and
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implicating innocent persons, else why should he not name
those accused persons in the very fardbeyan which was
given by him after more than 26 hours of the occurrence on
15.3.1992. One of the two persons, namely, Ram Kumar was
with him for quite some time and it is expected on account
of being in accordance with the ordinary human conduct,
that the said Ram Kumar must have narrated to him the
details of the incident or P.W.6 would have himself asked
from him, as that witness had seen the assailants, as to
who were the other accused persons than Praveen Kumar
Singh. The very absence of the names of other accused
persons appears to us a circumstance which belies the
credibility which could be attached to a witness. We have
already noted that P.W.6 appears a person who was prone to
hear others and act accordingly so as to implicating
other accused. If this could be the conduct and behaviour
of P.W.6, then we do not have any hesitation in noting
that the implication of Praveen Kumar Singh might also be
due to canvassing upon the informant by the said Ram Kumar
and others.
19. The above inference gets support from the
evidence of P.W.1 in paragraph 12. We have some doubt
about the very presence of P.W.6 at his village on the day
of the occurrence. P.W.1 claims himself to be in the
company of the deceased and P.Ws.2,3 and 4 so as to
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roasting the gram-plants. P.W.1 has stated in paragraph
12 that he did not meet Shivjee Singh on the very day of
the occurrence, rather he met P.W.2 Rambabu Singh who was
the son of P.W.6 and further that P.W.1 had narrated about
the incident to P.W.2. This line of evidence of P.W.1 in
paragraph 12 raises two inferences that P.W.6, the
informant may not be present on the day of occurrence at
his village and further that P.W.2 Rambabu Singh may also
not be present, as he has claimed, at the scene of
occurrence. The reason is very simple for recording the
above finding. If Rambabu Singh was really present at the
scene of occurrence then why should P.W.1 narrate the
facts of the occurrence to P.W.2. Thus, we doubt the
credibility of the evidence of P.W.2 also. P.W.6 has
admitted in his evidence in paragraph 2 at page 43 that he
was residing outside his village since last 36 years. On
perusal of the evidence of P.Ws.1 to 4, what we find is
that on the day of the occurrence they could be within the
age group of 6-7 years. So this could be very natural that
most of the children of the village may not be known by
P.W.6. It may not be an impossibility that most of his co-
villagers may also not be known to him. When P.W.1 states
that the informant was not seen on the day of occurrence
at the village, then there could be a probability that he
came to know about the assault on his son from others and,
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naturally, he had believed the statements made by others
about the participants in the offence. In the above
background there could be many probabilities that P.W.6
could be acting on account of being misled or misinformed
as regards the manner of the occurrence. This could be the
reason that many important facts happened to be rendered
or introduced probably on account of being canvassed upon
him by some persons. If this could be the probability,
which appears staring in our faces, then it could be
highly unsafe for us to sustain the conviction or to upset
the order of acquittal.
20. We are not saying that Ravindra Kumar Singh
was not murdered. He was really assaulted brutally and was
killed, but we have serious doubt about the veracity of
the evidence and about the truthfulness of the prosecution
story. We also find ourselves inclined to take a view that
possibility may not be ruled out that P.W.6 was acting at
the tips of other so as to implicating persons. In the
backgrounds of the evidences and inference coming out of
them, we find that even the conviction of Praveen Kumar
Singh on account of recording his participation appears
suffering from grave doubt. It was a case in which Praveen
Kumar Singh also deserved to be acquitted on account of
being extended the benefit of doubt and that benefit of
doubt we extend to appellant Praveen Kumar Singh.
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21. We allow this appeal and acquit him by setting
aside the order of conviction and sentence passed by the
trial court. For the reasons, we have just recorded, we
dismiss the Government Appeal also. Appellant Praveen
Kumar Singh is on bail. He shall stand discharged from the
liabilities of his bail bonds.
( Dharnidhar Jha, J. )
( Birendra Prasad Verma,J. )
Patna High Court,
Dated, the 10th of
March, 2010,
Brajesh Kumar/NAFR