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2012 DIGILAW 1011 (PAT)

Shambhu Ram v. State of Bihar

2012-07-24

ASHWANI KUMAR SINGH, NAVANITI PRASAD SINGH

body2012
ASHWANI KUMAR SINGH, J.:–The appeal is directed against the judgment dated 24th November, 2005 and order dated 25.11.2005 passed by the learned Additional District & Sessions Judge, F.T.C.-1st, Saran, Chapra in Sessions Trial No. 302 of 2004 by which the sole appellant has been convicted and sentenced to undergo rigorous imprisonment for life and a fine of Rs.5,000/- under section 302 of the Indian Penal Code and rigorous imprisonment for five years and fine of Rs. 1,000/- under section 201 of the Indian Penal Code. Both the sentences have been ordered to run concurrently. 2. The prosecution case is based on the oral statement of P.W.-6 Gahanu Das, recorded by P.W.-8 Tapeshwar Prasad Yadav, Sub-Inspector-cum-Officer-in-Charge of Dariyapur Police Station on 28.12.2001 at 1.45 p.m. at village-Barka Baniya at the door of Ram Naresh Singh, in presence of the local Mukhiya, P.W.-1 Paramhansh Narayan Singh. The informant states in the fardbeyan that he is servant in the house of Ram Naresh Singh since childhood. An orphan boy, aged about 12 years, namely Raju was also employed by Ram Naresh Singh as a servant about 3-4 years back. On 27.12.2001 at about 11 p.m., while the informant and Raju were sleeping in a thatched house, the appellant, a co-villager, came and took away Raju. Raju did not return in the night. In the next morning, a search was made for him. Some of the villagers went to the house of the appellant but the appellant was not found in his house. In course of search, people saw ‘Gamchcha’ of Raju floating in a well. Thereafter, people took out the dead body of Raju. It was found that both the hands, leg and neck of Raju were tied with rope. The informant further alleges that prima facie, it appeared, that the victim was strangulated to death and in order to conceal the crime his dead body was thrown into the well situated within the school campus. Lastly, it has been alleged that since the appellant, who had also worked as a servant in the house of Ram Naresh Singh earlier, was dismissed from the job on the charge of committing theft, he killed the victim in order to implicate Ram Naresh Singh in a false case and take revenge for his removal. 3. Lastly, it has been alleged that since the appellant, who had also worked as a servant in the house of Ram Naresh Singh earlier, was dismissed from the job on the charge of committing theft, he killed the victim in order to implicate Ram Naresh Singh in a false case and take revenge for his removal. 3. On the basis of the aforesaid allegation, Dariyapur P.S. Case No. 144 of 2001 was registered under Sections 302 and 201/34 of the Indian Penal Code against the appellant and investigation was taken up. P.W.-1 Paramhansh Narayan Singh and Ram Naresh Singh (not examined), have put their signature as witnesses to the fardbeyan. 4. On completion of investigation, the police submitted charge sheet under Section 302 and 201/34 of the Indian Penal Code against the appellant. The learned Chief Judicial Magistrate, on perusal of the police report, took cognizance of the offence and after supply of the police papers in terms of Section 207 of the Code of Criminal Procedure, the case was committed to the court of sessions for trial. 5. The trial court, on receipt of the record, framed charges under Sections 302 and 201 of the Indian Penal Code against the appellant to which he did not plead guilty and, as such, the trial commenced. In course of trial, the prosecution examined in all 8 witnesses in support of the charge whereas on behalf of the defence father of the appellant was examined as the sole defence witness. 6. In the present case, there is no eye-witness to the alleged murder of the deceased Raju. Apart from the informant, P.W.6, Gahanu Das, there is no witness to support the allegation that the victim was taken away by the appellant in the night at about 11 p.m. on 27.12.2001. P.W.-1, P.W.-2 and P.W.-3 while deposing in court have clearly stated that they had come near the well situated within the compound of the school, when they came to know regarding recovery of the dead body of the deceased. They have stated that the hands, legs and neck of the deceased were tied with Nylone rope. They came to know from Gahanu Das, the informant, that the victim was taken away by the appellant in the preceding night. 7. They have stated that the hands, legs and neck of the deceased were tied with Nylone rope. They came to know from Gahanu Das, the informant, that the victim was taken away by the appellant in the preceding night. 7. P.W.-1, Paramhansh Narayan Singh, clearly states in his deposition that he, being the people’s representative, went to Dariyapur Police Station and intimated the police regarding the occurrence first. According to him, the investigating Officer came to the place of occurrence on the information given by him. He states that first of all the investigating officer prepared the inquest report of the deceased on which he put his signature which was marked as Ext.-1. Thereafter, the investigating officer recorded the fardbeyan of Gahanu Das, the informant, P.W.6, on which also he put his signature which has been marked as Ext.-1/1. In cross-examination, he admits that when he went to the place of occurrence, the dead body was already taken out from the well and was kept in the ‘Sahan’. It was the informant, Gahanu Das, P.W.6, who narrated to him about the entire incident. Immediately, thereafter, he went to the police station and intimated the Officer-in-Charge regarding the murder of the deceased on which the investigating officer came to the place of occurrence. He states that he came at the place of occurrence at about 1.00 p.m. 8. P.W.2, Ram Lagan Singh, states in examination-in-chief that he reached near the well at about 12 p.m. By that time, the dead body had already been taken out from the well. In cross-examination, he admits that he came to know regarding the incident from Gahanu Das. He further admits that the investigating officer came at the place of occurrence at about 1 p.m. and recorded his statement as well as statement of P.W.-1 Praramhanash Narayan Singh, P.W.-3 Raj Balam Mahato, P.W.-4 Santosh Kumar Singh, P.W.-5 Vijay Kumar Singh and Ram Naresh Singh (not examined). 9. P.W.-3, Raj Balam Mahato, in examination-in-chief, states that on information received through rumor, in the morning, on 28.12.2001, he came to know that Raju was missing. He states that some boys of the village went to the house of the appellant but he was not found in his house. 9. P.W.-3, Raj Balam Mahato, in examination-in-chief, states that on information received through rumor, in the morning, on 28.12.2001, he came to know that Raju was missing. He states that some boys of the village went to the house of the appellant but he was not found in his house. When rumour spread regarding recovery of the dead body from the well, he went there and saw the dead body of the deceased which was kept by the side of the well. The informant Gahanu Das told him that in the preceding night the appellant took him away on the pretext of watching T.V programme. He further states that P.W.-1 Paramhanash Narayan Singh, informed the police, pursuant to which the investigating officer of the case came and prepared the inquest report on which he put his signature as a witness. He proved his signature on the inquest report which has been marked as Ext.-2. In cross-examination P.W.3 states that he reached at the place of occurrence at about 7 a.m. and the investigating officer there at about 1 p.m. He further admits that during the intervening period from 7 a.m. to 1 p.m, he was all along present at the place of occurrence. The informant, Gahanu Das, told him regarding the incident of the preceding night at the place of occurrence itself. 10. P.W.4, Santosh Kumar Singh, cousin brother of Ram Naresh Singh, in his deposition states that the informant Gahanu Das told him that on 27th December, 2001 in the midnight at about 12, the appellant took away the victim on the pretext of watching T.V. programme and after that he did not return. A search was made for the victim in the morning. In course of search Gamchha of the victim was seen floating in a well. Thereafter, the villagers including the local Mukhiya were called. A “Jhaggar” (multi point iron hook) was fastened with a rope and dipped into the well and with aid of “Jhaggar” the dead body of the deceased was taken out from the well. Immediately, thereafter, the Mukhiya, P.W.1 Paramhans Narain Singh, went to the police station and informed about the incident. The investigating officer came, inspected the dead body, prepared the inquest report, enquired about the occurrence from Ram Naresh Singh and the Mukhiya, Paramhans Narain Singh and recorded the statement of the informant Gahanu Das. Immediately, thereafter, the Mukhiya, P.W.1 Paramhans Narain Singh, went to the police station and informed about the incident. The investigating officer came, inspected the dead body, prepared the inquest report, enquired about the occurrence from Ram Naresh Singh and the Mukhiya, Paramhans Narain Singh and recorded the statement of the informant Gahanu Das. In cross-examination, P.W.4, admits that Ram Naresh Singh is his cousin brother. They live in jointness. The victim Raju was an orphan. He further admits that nobody had entered inside the well to search and take out the dead body of the deceased. The dead body was taken out with aid of “Jhaggar”. He further admits that after the dead body was taken out the Mukhiya was informed. The Mukhiya came to the place of occurrence at about 11-11.30 a.m. and immediately went to the police station to report about the incident. He came back from the police station at about 1.00 p.m. The officer-in-charge came to the place of occurrence ten minutes thereafter. He also admits in cross-examination that one Bhola Singh, Pramukh of the village, was his brother and had been killed earlier. In that case, some of the co-villagers were convicted. He denied the suggestion that the appellant has falsely been implicated in the present case. 11. P.W.5, Vijay Kumar Singh, is nephew of Ram Naresh Singh. He has also corroborates the version of P.W.4, Santosh Kumar Singh. 12. P.W.6, Gahanu Das, is the main witness of the case. He states in chief that the appellant took away the victim, Raju, at about 11 p.m. on the relevant date and time of occurrence on the pretext of watching T.V. programme. The victim did not return in the night. In the morning Ram Naresh Singh enquired about the whereabouts of the victim. A search was made for him. The Gamchha of the victim was seen by some one in the well. Thereafter his dead body was taken out with aid of Jhaggar from inside the well. His hands, legs and neck were tied with rope. After recovery of the dead body the Mukhiya came and informed the police pursuant to which the officer-in-charge came and recorded his statement. He further states that the appellant was a servant in the house of Ram Naresh Singh about four years back but was thrown out of his job on the charge of theft. After recovery of the dead body the Mukhiya came and informed the police pursuant to which the officer-in-charge came and recorded his statement. He further states that the appellant was a servant in the house of Ram Naresh Singh about four years back but was thrown out of his job on the charge of theft. In cross-examination, he admits, that it was Ram Naresh Singh who sent some messenger to call the Mukhiya, Paramhans Narain Singh, after recovery of the dead body. He also admits that it was Ram Naresh Singh who had sent the Mukhiya to the police station and when the police came his statement was recorded at the door of Ram Naresh Singh. He further admits that when the investigating officer came at the place of occurrence, he first took statement of Ram Naresh Singh, and thereafter, his statement was recorded. He states that after recording the statement he was removed from there and was never called again. He admits that since he is illiterate he does not know the contents of the fardbeyan which were recorded by the investigating officer and being ignorant of the contents he simply put his thumb impression on the fardbeyan. 13. P.W.7, Dr. Shambhu Nath Singh, who was posted as Assistant Civil Surgeon at Chapra Sadar Hospital held postmortem examination on the dead body of the deceased on 28.12.2001 at 4.25 p.m. and found the following ante mortem injuries on his person:– “External:–Ligature mark in the neck. A knot on the vocal chord all around neck. Mark all around neck width about ¾” + ligature mark on just above wrist joint + ligature mark just above left ankle width of both mark about ¾”. On dissection: Trachea was intact. Lungs, liver, spleen was congested. Right chamber of heart was full and left empty. Stomach contained liquid material like ‘Satua amd Chawal’. Whole stomach was full.” In the opinion of the doctor the victim died due to asphyxia caused as a result of drowning. He has proved the postmortem report which has been marked as Ext-3. In his opinion, the time elapsed since death of the victim was between 12-18 hours. The defence did not cross-examine the doctor. 14. P.W.8, Tapeshwar Prasad Yadav, is the investigating officer of the case. He had recorded the fardbeyan which has been proved by him and marked as Ext-4. In his opinion, the time elapsed since death of the victim was between 12-18 hours. The defence did not cross-examine the doctor. 14. P.W.8, Tapeshwar Prasad Yadav, is the investigating officer of the case. He had recorded the fardbeyan which has been proved by him and marked as Ext-4. He inspected the place of occurrence, prepared inquest report and sent the dead body of the victim for postmortem examination. He has also proved the inquest report and the formal first information report which have been marked as Ext-5 and Ext.6 respectively. He recorded the statement of the witnesses and submitted chargesheet in the case. In cross-examination he denies to have received any information from the Mukhiya, P.W.1, Paramhans Narain Singh. He states that he received an information regarding murder of the victim at the police station and lodged a Sanha in this regard. He immediately rushed to the place of occurrence after recording the Sanha. He found large number of people present near the well where the dead body of the victim Raju was lying on the ground. He admits that when he reached there, the informant Gahanu Das and Ram Naresh Singh, were present there from before. He also admits that he came to know that the victim was servant of Ram Naresh Singh but did not think it proper to record his statement He further admits that there was no mark of violence present on the dead body of the deceased. The ligature marks found on his body were due to tying of limbs with aid of rope. He denies the suggestion that in order to save Ram Naresh Singh, the investigation was mis-directed. 15. Having heard the parties and seen the evidence on record we find that the original information given to the police by P.W.1, Paramhans Narain Singh, regarding the occurrence, has deliberately been withheld by the prosecution. 16. The subsequent statement of Gahnu Das recorded by police in course of investigation can not be treated to be the F.I.R. in the eye of law. The law in this regard is well settled that on receipt of information regarding a cognizable offence, if the investigating officer fails to record first information report, goes to the spot and after consultation, deliberations and discussions on the spot records fardbeyan, it cannot be treated as first information report in the case. The law in this regard is well settled that on receipt of information regarding a cognizable offence, if the investigating officer fails to record first information report, goes to the spot and after consultation, deliberations and discussions on the spot records fardbeyan, it cannot be treated as first information report in the case. It would be a statement made during investigation of the case and hit by section 162 of the Code of Criminal Procedure. 17. When we look to the evidence on record, we find that there are several infirmities in the prosecution case. Admittedly, there is no eye witness to the occurrence. The witnesses examined on behalf of the prosecution apart from giving self contradictory statement have contradicted each other too. The witnesses clearly state that after the dead body of the deceased was recovered, the Mukhiya was informed who came at the place of occurrence and after knowing about the entire incident went to the Dariyapur police station and informed the officer-in-charge pursuant to which the officer-in-charge who is also the investigating officer of the case came to the place of occurrence but when P.W.8 Tapeshwar Prasad Yadav, the Officer Incharge-cum-investigating officer of the case was examined in the court he contradicts the witnesses and states that the Mukhiya never intimated him regarding the occurrence. He further states that when he came to know regarding the occurrence he made a station diary entry and proceeded to the place of occurrence. The investigating officer has not disclosed the source from whom and the mode by which he came to know about the occurrence. He has also not brought the so called station diary entry made by him, on record, in course of trial. 18. We further find that P.W.1 in his deposition states that the fardbeyan of the informant was recorded near the well where the dead body was lying but when the informant was examined in court, he contradicts P.W.1 and states that his fardbeyan was recorded at the door of the house of Ram Naresh Singh. We further find that, the informant in his deposition clearly states that before recording his statement the investigating officer had recorded the statement of his master Ram Naresh Singh but the investigating officer contradicts him and states that he did not record the statement of Ram Naresh Singh. 19. We further find that, the informant in his deposition clearly states that before recording his statement the investigating officer had recorded the statement of his master Ram Naresh Singh but the investigating officer contradicts him and states that he did not record the statement of Ram Naresh Singh. 19. We further find that the informant states in his fardbeyan that when people saw Gamchha of the deceased floating in the well, they went inside the well, dipped into the water and took out the dead body of the deceased but when he deposed in court, he materially changes his version. He states in his examination-in-chief that when Gamchha of the deceased was seen in the well, his dead body was taken out by putting Jhaggar inside the well. 20. We further notice another important aspect in the present case. Admittedly, the deceased was an orphan and was a servant of Ram Naresh Singh. Ram Naresh Singh was present at the place of occurrence when the dead body was recovered as well as at the time when investigating officer arrived at the place of occurrence. In his deposition, the investigating officer, admits that when he came to the place of occurrence, he came to know that the deceased was the servant of Ram Naresh Singh and Ram Naresh Singh was present there but he did not think it proper to record his statement. However, when we look to the deposition of the informant, we find that he has clearly admitted in cross-examination that when the investigating officer came to the place of occurrence, he first of all recorded the statement of Ram Naresh Singh and, thereafter, his statement was recorded. If the informant is telling the truth, the investigating officer is certainly hiding the same. It is surprising as to why the statement of Ram Naresh Singh was not recorded by the investigating officer. It is more surprising as to why the statement of Ram Naresh Singh, if recorded, is being suppressed. The court would thus draw an adverse inference for non-examination of Ram Naresh Singh by the prosecution, who certainly was an important witness in the case for more than one reason. The victim as well as the inform ant were his servant. He was also a witness to the fardbeyan. The motive attributed for the alleged murder also revolves around him. The victim as well as the inform ant were his servant. He was also a witness to the fardbeyan. The motive attributed for the alleged murder also revolves around him. Under such circumstances his non-examination as a witness by the prosecution creates reasonable doubt about the truthfulness of the prosecution case. 21. There is yet another aspect of the matter. The prosecution has brought on record the inquest report which has been marked as Ext-5. When we look to the inquest report, we find that it was prepared on 28.12.2001 at 1.30 p.m. P.W.1, Paramhans Narain Singh and P.W.3, Raj Ballam Mahto are witnesses to the inquest report who have also proved their respective signature on the inquest report. When we look to the fardbeyan, we find that the same was recorded at 1.45 p.m. on 28.12.2001. This means that the inquest report of the deceased was prepared fifteen minutes before recording the fardbeyan. This clearly shows that the investigation had already commenced even before institution of the fardbeyan. The inquest report is prepared in presence of two or more respectable inhabitants of neighbourhood. It contains report of apparent cause of death describing such wounds and other marks of injury as may be found on the body and in what manner or by what weapon or instrument (if any), such marks appear to have been inflicted. Thus, apparently, inquest report is part of investigation. Normally, the police first records the fardbeyan and then proceeds with investigation. In the present case, as narrated above, there was already an information given to the police by P.W.1, which has deliberately been suppressed by the prosecution. The I.O. though admits to have lodged a sanha but fails to produce the same. The inquest report might have been prepared in course of investigation of the information received first by the police in the police station, but subsequently, another information was obtained and treated as fardbeyan. The conduct of the investigating agency makes the F.I.R. a doubtful piece of document. 22. We further find from the evidence on record that the hands, legs and the neck of the victim were tied with rope. The dead body was taken out from the well with aid of Jhaggar. Neither the rope nor the Jhaggar has been seized by the police in course of investigation nor the same were produced in course of trial. 23. The dead body was taken out from the well with aid of Jhaggar. Neither the rope nor the Jhaggar has been seized by the police in course of investigation nor the same were produced in course of trial. 23. We also find from the evidence that motive for committing the alleged offence in the FIR has not been corroborated by P.W.4 Santosh Kumar Singh, cousin brother of the employer, namely, Ram Naresh Singh. The informant has alleged that the appellant, who was also a servant was thrown out of job by Ram Naresh Singh on the charge of theft committed by him and it was because of that he committed murder of the deceased in order to take revenge from Ram Naresh Singh by implicating him in a false case. However, when P.W.4 Santosh Kumar Singh was examined in court, he categorically states that the appellant had worked in his house but had never committed theft in the house. 24. We further find from the evidence of P.W.3 Raj Ballam Mahto that when he reached at the place of occurrence, the dead body of the deceased had already been taken out. In cross-examination he states that he reached at the place of occurrence at about 7 a.m. and remained present there till the arrival of the investigating officer, who came at about 1 p.m. He further states that when he had reached at the place of occurrence large number of persons were already present. The evidence of P.W.3 Raj Ballam Mahto clearly shows that the dead body of the deceased had been recovered prior to 7 a.m. on 28.12.2001. Large number of persons had already arrived near the well before the arrival of P.W.3. This fact has to be seen together with the deposition of P.W.1 Paramhans Narain Singh, who states that he came to know regarding the occurrence at about 1-1.30 p.m. on 28.12.2001 through the informant, Gahanu Das and immediately, thereafter, he went to the police station to inform regarding the occurrence. The other witnesses examined on behalf of the prosecution such as P.W.4 Santosh Kumar Singh, P.W.5 Vijay Kumar Singh and the P.W.6 Ganahu Das, the informant, have also stated in their deposition that after recovery of the dead body the local Mukhiya, P.W.1 Paramhans Narain Singh, was called and was sent to the police station to inform regarding the occurrence. The other witnesses examined on behalf of the prosecution such as P.W.4 Santosh Kumar Singh, P.W.5 Vijay Kumar Singh and the P.W.6 Ganahu Das, the informant, have also stated in their deposition that after recovery of the dead body the local Mukhiya, P.W.1 Paramhans Narain Singh, was called and was sent to the police station to inform regarding the occurrence. If the evidence is seen in totality, we find no reason as to why the information was not given to the police for more than six hours after recovery of the dead body of the deceased specially when large number of people were present at the place of occurrence. There is no explanation for the delay caused in sending the information to the police. The factual background under which the FIR has been instituted, the delay caused in sending the information to the police, corrodes the credibility of the prosecution case. 25. We find that apart from the informant, all other witnesses examined on behalf of the prosecution are witnesses on the point of recovery of dead body of the deceased. They are hearsay witnesses on the point that deceased went together with the appellant in the night on 27.12.2001. The informant is the only witness who claim to have seen the victim going together with the appellant in night on 27.12.2001. The case is thus based on proof of circumstances. The circumstances enumerated above do not lead to an irresistible conclusion that the appellant was perpetrator of crime. From the discussions made and the reasons assigned, hereinabove, the informant does not appear to be a truthful witness. The sanha recorded by police has been withheld. The investigation commenced prior to recording of fardbeyan. The information given first to the police by P.W.-1 is being denied by the I.O. The F.I.R. seems to be a highly suspicious document. The investigating officer, from his conduct has made himself thoroughly unreliable. The investigation apparently seems to be tainted. The material exhibits have neither been seized nor been produced in the court. The witnesses examined on behalf of the prosecution apart from contradicting themselves have contradicted each other in material particular. Under such circumstances, it would be unsafe to uphold the conviction of the appellant recorded by the trial court. 26. In the result, the appeal is allowed. The material exhibits have neither been seized nor been produced in the court. The witnesses examined on behalf of the prosecution apart from contradicting themselves have contradicted each other in material particular. Under such circumstances, it would be unsafe to uphold the conviction of the appellant recorded by the trial court. 26. In the result, the appeal is allowed. The impugned judgment of conviction dated 24th November, 2005 and order of sentence dated 25th November, 2005 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Saran, Chapra, are set aside. The appellant, who is on bail, is discharged from the liabilities of his bail bonds. NAVANITI PRASAD SINGH, J.:–I agree.