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2017 DIGILAW 2194 (JHR)

Md. Sadaullah v. State of Jharkhand

2017-12-19

ANIL KUMAR CHOUDHARY, HARISH CHANDRA MISHRA

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JUDGMENT : HARISH CHANDRA MISHRA, J. 1. As all these four appeals arise out of the common Judgment passed by the Trial Court below, they were heard together and are being disposed of by this common Judgment. 2. Heard learned counsels for the appellants in the respective appeals and learned counsel for the State. 3. The appellants are aggrieved by the Judgment of conviction and Order of sentence dated 19th September 2008 (in the case of the appellant, Sarfaraj Khan by Order of sentence dated 27.08.2010) passed by the learned Additional Sessions Judge-I, Jamshedpur, in S.T Case No. 291 of 2006, whereby, out of the five accused persons who had faced the trial, four accused persons who are the appellants herein, have been found guilty and convicted for the offence under Sections 302/34 of the Indian Penal Code. Upon hearing on the point of sentence, they were sentenced to undergo R.I for life and fine of Rs. 10,000/- each for the said offence. The accused appellant Sarfaraj Khan, in Criminal Appeal No. 915 of 2010, could not be produced at the time of hearing on sentence on that date, and he was heard on the point of sentence on 27.8.2010, and the same sentence has been passed against him also. One accused, Sk. Anwar was found not guilty and he was acquitted of the charge. 4. The prosecution story was instituted on the basis of the fardbeyan of Vidya Devi, the wife of the deceased Arvind Kumar Singh, recorded on 7.5.2006 at M.G.M hospital, Jamshedpur, at 16:30 hours, wherein she has stated that on that day, her husband had taken meal at about 2:30 P.M and was going on his duty. As he had left his mobile phone behind, he returned back to take his mobile phone, when Sk. Mukhtar, who was running a S.T.D. booth in the neighborhood, called her husband. Her husband came out of the house and she also followed her. As soon as her husband reached near the main door, the accused, Sk. Mukhtar called his other accomplices, namely, his son Anwar, Nanka, Sarfaraj, and Aman. Mukhtar, his son, Anwar, Sarfaraj and Aman apprehended her husband and on the order given by Mukhtar, Nanka took out a pistol from his waist and fired the pistol causing injury on the chest of her husband, due to which, he fell down. Mukhtar called his other accomplices, namely, his son Anwar, Nanka, Sarfaraj, and Aman. Mukhtar, his son, Anwar, Sarfaraj and Aman apprehended her husband and on the order given by Mukhtar, Nanka took out a pistol from his waist and fired the pistol causing injury on the chest of her husband, due to which, he fell down. The informant started weeping, whereupon, the persons from neighborhood came out and all the accused persons fled away on two motorcycles. The occurrence took place at about 3:00 P.M., and it is stated in the fardbeyan that the occurrence was caused for creating terror and supremacy in the locality, and also for the fact that her husband had got the neighborhood house belonging to one Muslim, purchased by one Sanjay Singh. On the basis of the fardbeyan of the informant, Mango (Olidih) P.S Case No. 177 of 2006, corresponding to G.R No. 1057 of 2006, was instituted against the five named accused persons for the offence under Sections 302/34 of the Indian Penal Code, and Section 27 of the Arms Act, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 5. Upon the commitment of the case to the Court of Session, charge was framed against all the accused persons for the offence under Sections 148, 302/149 of the Indian Penal Code and against the accused, Md. Sadaullah @ Sadab @ Nanka, also for the offence under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. 6. In course of trial, the prosecution has examined ten witnesses, including the Investigating Officers and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. The defence has also examined six witnesses in the case and has proved certain documents. 7. P.W.-3 Vidya Devi is the informant and the wife of the deceased. This witness has stated that the occurrence had taken place on 7.5.2006 at about 3:00 P.M. She was in her house along with her husband, in the meantime, Mukhtar called her husband from outside, whereupon, she also came out along with her husband. 7. P.W.-3 Vidya Devi is the informant and the wife of the deceased. This witness has stated that the occurrence had taken place on 7.5.2006 at about 3:00 P.M. She was in her house along with her husband, in the meantime, Mukhtar called her husband from outside, whereupon, she also came out along with her husband. Mukhtar called Anwar, Sarfaraj, Nanka and Aman and Mukhtar, Sarfaraj Anwar and Aman caught hold her husband and on the order given by Mukhtar, Nanka took out a pistol from his waist and fired upon her husband, causing injuries on his chest. Her husband fell down and she started crying. The persons nearby started assembling there whereupon the accused persons fled away on two motorcycles. Her husband was brought to hospital on a police jeep, but he had died at the place of occurrence itself. Her fardbeyan was recorded by the police, on which she had put her signature which she identified and the same was marked Exhibit-2. She has identified all the accused persons in the Court. This witness was put to lengthy cross-examination, wherein, she has stated that she was also running a small shop in her house, in which, she used to sell ready-made articles, such as biscuits etc. She has also given the boundary of her house, as stated in her cross-examination. She has stated that Arun Kumar Singh is her brother-in-law, who was at his house in the same locality. She has no knowledge about the distance of his house and she did not remember whether she had met him or not on the date of occurrence. She has stated that she was suffering from Jaundice and her parents had come to see her, who also came out of the house upon hearing the sound. She has also stated that there were three tenants in her house, living with their family and they also came out upon hearing the noise. She has stated that at the time of occurrence, the neighbors Ram Pukar Pandey and Ganesh Shankar Vidyathri, had also visited the place of occurrence. She has again stated in her cross-examination that her husband had died at the spot itself, and when he fell down, she took his head in her lap, but she had not shown her bloodstained cloths to the police. She has again stated in her cross-examination that her husband had died at the spot itself, and when he fell down, she took his head in her lap, but she had not shown her bloodstained cloths to the police. She has stated that her husband was taken to hospital on the police jeep, on which, he was put by Ganesh Vidyarthy, Ram Pukar Pandey and Manoj Singh. She has stated that she had not informed the police on phone and she had no knowledge as to how the police arrived at the place of occurrence, but the police reached there within 15 minutes after the occurrence. She informed the police, but the police did not write anything at that time. She has stated that she never went to the Police Station and she had put her signature on her statement in the MGM hospital at about 4.30 P.M., and thereafter, her re-statement had also taken by the police. This witness has further stated that her husband was working as a Supervisor with a builder Ram Naresh Singh and his duty hours used to be from 8 A.M to 5 P.M. This witness has also stated that it was a hot summer day on the date of occurrence and as such, her husband had taken very less food. She has stated that she was not knowing Nanka, but she was identifying him. Sk. Mukhtar is her neighbor, but she has no knowledge as to where Aman lived. She has also admitted that one hand of Sk. Mukhtar was not normal. She has also stated that her husband had not got the house purchased by Sanjay Singh and she had no talks with any accused on mobile phone and none of the accused used to visit her house. She has also stated that Nanka was not the resident of the same mohalla, but she knew him as he used to visit her mohalla, but he did not use to visit her house. She has stated that the day of occurrence was a hot summer day and people were inside their house on that day. She has also stated that after the occurrence, there was a heavy storm also. To the suggestion given to her that the accused persons had not killed her husband, she has denied the same and asserted that Nanka had killed her husband. She has also stated that after the occurrence, there was a heavy storm also. To the suggestion given to her that the accused persons had not killed her husband, she has denied the same and asserted that Nanka had killed her husband. She has also denied the suggestion that the accused persons have been falsely implicated at the behest of Ram Pukar Pandey, Ganesh Vidyarthi and the neighboring persons. 8. P.W.-4 Surendra Prasad is the father of the informant. This witness has stated that the occurrence had taken place on 7.5.2006 at about 3 P.M. He was at his daughter's place. Someone called his son-in-law Arbind Singh, whereupon he went out and his daughter also followed her husband. Thereafter, he heard the sound of firing and he also heard the screams of his daughter, whereupon he came out and saw his son-in-law fallen down with firearm injury on his chest and his daughter was screaming that the owner of STD booth, Sk. Mukhtar, Sarfaraj, Anwar and Aman had caught hold her husband and Nanka shot him. He has stated that the persons from neighborhood reached the place of occurrence and his son-in-law was taken to hospital and when they returned back, he learnt that he had died. He did not identify the accused persons, stating that he was not a resident of that place. In his cross examination, this witness has stated that he had come to see his daughter, who was ill. She was undergoing treatment, but as no further treatment was required, this witness was to return back on 7.5.2006 itself, and his wife was to stay back. He has stated that he had not informed the police on phone and he has no knowledge as to who had informed the police. After the occurrence, he had gone in search of a tempo, but in the meantime, the police arrived and about 15-16 persons had also reached there, whom he did not identify. He has stated that his statement was recorded by the police, and he has denied the suggestion that he had no knowledge about the occurrence and to have given the false evidence. 9. P.W.-5 Ganesh Shankar Vidyarthi and P.W.-6 Ram Pukar Pandey are the neighbors of the deceased and they have also stated that the occurrence had taken place on 7.5.2006. 9. P.W.-5 Ganesh Shankar Vidyarthi and P.W.-6 Ram Pukar Pandey are the neighbors of the deceased and they have also stated that the occurrence had taken place on 7.5.2006. They were in their house at about 3.00 P.M. When they heard the sound of firing, they came to the house of Arvind Singh and they saw him fallen with firearm injury. His wife was crying there, taking the name of the accused persons and stating that Sk. Mukhtar, Aman, Anwar and Sarfaraj had caught hold her husband and Nanka assaulted him by firearm. P.W.-6 Ram Pukar Pandey has also stated that when he reached the place of occurrence, he saw Nanka and Aman fleeing away on a motorcycle. P.W.-6 Ram Pukar Pandey has also stated that the police had seized the bloodstained soil from the place of occurrence and had prepared the seizure list, on which he had put his signature. He has identified his signature on the seizure list, which was marked Exhibit 2/1. Both these witnesses have identified the accused persons in the Court. In his cross-examination, P.W.-5 has stated that one criminal case was filed against him by a relative of Sk. Mukhtar and there was also a complaint case and a proceeding under Section 107 of the Cr.P.C., against him. He has denied the suggestion that he had not heard the sound of any firing and he had got the accused persons falsely implicated. He has admitted that he had purchased the house of the father of the accused Nanka and has stated that there was no money due for the same. He has also denied the suggestion that there was a murder case on him at Nawada. This witness has also stated that the deceased Arvind Singh had got the house purchased by Sanjay Prasad, but he has no knowledge that he was demanding any money from Sanjay Prasad. He has denied the suggestion to have given the false statement. In his cross examination, P.W.-6 has also admitted that the accused persons, Sk. Anwar, and Mukhtar are his neighbors and he had heard that Sk. Anwar had gone to his maternal uncle's place. He has also stated that there was Section 107 Cr.P.C. proceeding upon him. He has stated that the day of occurrence was hot summer day and after the occurrence, there was a heavy storm and rain also. Anwar, and Mukhtar are his neighbors and he had heard that Sk. Anwar had gone to his maternal uncle's place. He has also stated that there was Section 107 Cr.P.C. proceeding upon him. He has stated that the day of occurrence was hot summer day and after the occurrence, there was a heavy storm and rain also. He has stated that he had not noted the number of the vehicle by which the accused persons had fled away, nor he had stated before the police that he and the other people of mohalla had chased the vehicle. He has admitted that he had not seen the occurrence. He had not informed the police on phone and he has denied the suggestion that he had no knowledge about the occurrence. 10. P.W.-7 Manoj Singh is yet another neighbor of the deceased, who has also stated that the occurrence had taken place on 7.5.2006 at about 3.00 P.M. He was in his house. He heard the sound of firing, he came out and saw that at a distance of about 100 ft. from his house, Arvind Singh had fallen down on the road, in front of his own house. He saw the accused Sarfaraj Khan and Sk. Mukhtar fleeing away on a motorcycle. He went there and he saw that Arvind Singh was lying in the pool of blood with his head in the lap of his wife, who was crying and she informed that Sk. Mukhtar called her husband from his house and Sarfaraj khan, Sk. Mukhtar, Anwar and Aman caught him and on the order given by Sk. Mukhtar, Nanka assaulted her husband by firearm. This witness has also stated that on seeing the condition of Arvind Singh, he started searching for a vehicle, in the meantime, the police arrived there and he along with other persons put Arvind Singh in the police jeep and brought him to MGM hospital. This witness has stated that he could not understand whether Arvind Singh was alive or dead, but at MGM hospital, the Doctors declared him dead. In the hospital, the statement of Vidya Devi was recorded by the police in his presence, upon which Vidya Devi put her signature in his presence, and this witness also put his signature as witness. He has identified his signature on the fardbeyan, which was marked Exhibit 2/1. In the hospital, the statement of Vidya Devi was recorded by the police in his presence, upon which Vidya Devi put her signature in his presence, and this witness also put his signature as witness. He has identified his signature on the fardbeyan, which was marked Exhibit 2/1. This witness has also stated that a few days before the occurrence, Arvind Singh was a mediator in the purchase of a house of Muslim by Sanjay Singh, due to which, there was enmity. He has identified the accused persons, namely, Sk. Mukhtar, Sarfaraj Khan, Nanka and Aman in the Court, but he has not identified one accused, namely, Sk. Anwar. In this cross-examination, this witness has stated that he had not seen the number of motorcycle on which the accused persons had fled away. He had no enmity with Mukhtar. He has also stated in his cross-examination that he had a coal business. It was a hot summer day and at the time of occurrence, he was taking rest in his house and when he saw the deceased, he was at a distance of about 5-6 ft. from his own gate. After about two hours of the occurrence, there was a storm. Though this witness has been put a lengthy cross-examination, but there is nothing of much importance in the cross- examination. 11. P.W.-1 Arun Kumar is the brother of the deceased and P.W.-2 Rameshwar Prasad is the cousin of the deceased. Both of them reached the hospital after the getting the news about the occurrence, and they saw the dead body. They are also the witnesses to the inquest report and they have identified the signatures on the inquest report, which were marked Exhibits-1 & 1/1 respectively. P.W.-1 Arun Kumar has stated that he got the information from the father-in-law of the deceased. There is nothing of much importance in their cross examinations. 12. P.W.-9 is the Dr. Yogendra Nath, who had conducted the post-mortem examination on the dead body of the deceased on 8.5.2006 at about 10.00 hours and had found the following injuries :- (A) Firearm Injury Wound of entrance 4 x 2 cm over left chest front 6 cm. above the left nipple and 5 cm left to mid-line of the body. Yogendra Nath, who had conducted the post-mortem examination on the dead body of the deceased on 8.5.2006 at about 10.00 hours and had found the following injuries :- (A) Firearm Injury Wound of entrance 4 x 2 cm over left chest front 6 cm. above the left nipple and 5 cm left to mid-line of the body. The wound of entrance was surrounded by powder tattoo mark densely below the wound of entry over an area of 25 x 27 cm spread over front of chest and adjoining shoulder, the projectile entered into the chest cavity through 3-4 ribs, fractured 2nd and 3rd ribs, then passed into the heart through and through lacerated the lung also in its course. Collar abrasion was present round the wound of entrance. The projectile recovered from left chest cavity measuring 3.2 cm. x 2.7 cm and was signed at the base. Left half of the brain was found contused. The chest cavity was full of blood and blood clots. He has stated that all the injuries were ante-mortem in nature. Firearm injury was due to firearm and contusion of brain was caused by hard and blunt substance. The death was due to hemorrhage and shock. This witness has also stated that the time since death was within 18 to 24 hours from the time of post-mortem examination. He has also stated that the recovered bullet was handed over to the constable along with the post-mortem report in a sealed cover. He has identified the post-mortem report to be in his handwriting and signature, which was marked Exhibit-3. In his cross-examination, this witness has stated that no case number had been mentioned in the post-mortem report and the deceased might have taken food earlier more than six hours. He has stated that the brain injury was grievous and this may be possible by lathi. 13. P.W.-8 Prabash Nath Mishra and P.W.-10 Nag Narayan Pandey are the two Investigating Officers in the case. P.W.-8 Prabash Nath Mishra has stated that on 7.5.2006, he was posted at Olidih O.P as S.I. At about 3.18 P.M, an information was received on telephone that near the house of Ram Pukar Pandey, Arvind Kumar Singh was assaulted by firearm. Upon enquiry, the person on telephone stated that he was father-in-law of Arvind Kumar Singh. P.W.-8 Prabash Nath Mishra has stated that on 7.5.2006, he was posted at Olidih O.P as S.I. At about 3.18 P.M, an information was received on telephone that near the house of Ram Pukar Pandey, Arvind Kumar Singh was assaulted by firearm. Upon enquiry, the person on telephone stated that he was father-in-law of Arvind Kumar Singh. On the said information, sanha entry was made and he proceeded for the place of occurrence, and found Arvind Kumar Singh fallen on the road in front of his house with the bleeding injury on his chest. His wife was also there, who was weeping, and stating that Sk. Mukhtar, Anwar, Sarfaraj, Aman and Nanka had killed her husband. He took the injured on the police jeep along with his wife and some other persons to MGM hospital, and in the way, in view of the fact that a person belonging to the Hindu community was killed by Muslims, and in view of the fact that the locality was communally sensitive, he alerted the police control room through wireless. The deceased was taken to the hospital where he was declared dead. At the hospital, the statement of the deceased's wife was recorded by him, on which, she put her signature. He has identified the fardbeyan to be in his pen and signature, which was marked Exhibit-3. He prepared the inquest report which was also proved and the same was marked Exhibit-4. He also prepared the dead body challan and took the dead body to the post-mortem house, but due to non-availability of the Doctor, the dead body was put in mortuary, where he left a Havaldar, and returned back with the fardbeyan etc. to the place of occurrence, where he handed over the fardbeyan to N.N. Pandey, the Officer-Incharge of Olidih O.P. Thereafter, he returned back to Olidih O.P., where his statement was recorded by the Officer-Incharge. This witness was also put to a lengthy cross-examination by the defence, in which, he has stated that the telephone was received by the Munshi of the O.P., who handed over the phone to him, on which, father-in-law of Arvind Kumar Singh had informed him about the occurrence. He was not informed that the deceased had died and he was also not informed about the name of the accused persons. As such, he recorded the sanha and proceeded to the place of occurrence. He was not informed that the deceased had died and he was also not informed about the name of the accused persons. As such, he recorded the sanha and proceeded to the place of occurrence. He has stated that the sanha was not signed by him. He was also cross-examined about the details of the place of occurrence, in which he has stated that the house of Ram Pukar Pandey is at a distance of about 30-40 steps from the house of the deceased. He has stated that he remained at the place of occurrence for about 5 minutes and he took the deceased to the hospital first, as his motto was to save the life of the deceased. He did not record the statement of any witness at the place of occurrence, as his first intention was to save the life. Arvind Kumar Singh was not in a position to speak. He has also stated in his cross-examination that to his knowledge, there was no communal violence after the occurrence, and nobody was injured in any communal violence, but as a matter of precaution, he had informed the Senior Police Officers about the apprehended communal tension. He has denied the suggestion that he had not visited the place of occurrence nor he had recorded the fardbeyan of the deceased nor had prepared the inquest report and had falsely implicated the accused. 14. P.W.-10 Nag Narayan Pandey has stated that he was posted as Incharge of the O.P. on 7.5.2006. The statement of the informant was recorded by the S.I. Prabhash Nath Mishra, at about 16.30 hours at the hospital and the inquest report etc., was also prepared by him. This witness has proved the signature of the Police Officer on the formal F.I.R., which was marked Exhibit-1/2 and the endorsement made by him, which was marked Exhibit-3. He has stated that he took over the investigation of the case and he recorded the statement of Prabhash Nath Mishra, S.I. He also visited the place of occurrence and has given the details of the place of occurrence. He has stated that the place of occurrence is at the distance of 3 ft. from the house of the deceased and adjacent south is the house of Sanjay Singh and at the distance of about 40 ft. is the S.T.D Booth and the shop of Sk. Mukhtar. He has stated that the place of occurrence is at the distance of 3 ft. from the house of the deceased and adjacent south is the house of Sanjay Singh and at the distance of about 40 ft. is the S.T.D Booth and the shop of Sk. Mukhtar. He found the bloodstains at the place of occurrence and he seized the bloodstained soil and prepared the seizure list. He has proved the seizure list to be in the pen of Prabhash Nath Mishra and in his signature, and the same was marked as Exhibit-4. He recorded the statement of the witnesses and he arrested the accused, Nanka and took him on police remand, who confessed his guilt. He recorded the confessional statement of Nanka, which he has proved to be in his pen and signature, which was marked Exhibit-5. He has stated that on the basis of the said confessional statement, he recovered firearm and cartridge from the place shown by the accused. The accused had also stated about the motorcycle, used in the occurrence, which he had left near the railway station over bridge, but the said motorcycle was taken away by the Traffic Police, finding the same to be abandoned. He received the post-mortem report and the bullet recovered from the body and thereafter, handed over the charge of investigation. In his cross-examination, this witness has stated that initially, someone had telephoned at the police station about the occurrence, informing that the father-in-law of Arvind Kumar Singh had informed about the occurrence and sanha was entered. He has also stated that he had not prepared the sketch map of the place of occurrence and he had not sent the bloodstained soil, or the bullet, or the cloth of the deceased, for forensic examination. He has also stated that Nanka was taken on police remand and he was ordered to be interrogated in presence of his advocate. His advocate was informed, but he did not turn up. He has admitted that he had not seized the motorcycle. This witness has also stated that Nanka had stated in his confessional statement that he had illicit relationship with Vidya Devi and he used to visit her and they also used to talk on mobile. He has denied the suggestion that the persons of one community had falsely implicated the persons of the other community in this case. This witness has also stated that Nanka had stated in his confessional statement that he had illicit relationship with Vidya Devi and he used to visit her and they also used to talk on mobile. He has denied the suggestion that the persons of one community had falsely implicated the persons of the other community in this case. He has also denied the suggestion that the informant was not in a position to give her statement as she was ill. 15. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein, they have denied the evidence against them. The defence has examined six witnesses, and has proved some documents. 16. D.W.-1 Md. Imran, D.W.-4 Sunil Kumar and D.W.-5 Hamid Ansari have stated that the deceased was found injured by them near the house of Ram Kumar Pandey and they had brought him near his house. D.W.-1 Md. Imran has also stated that the hand of Sk. Mukhtar was injured and it was operated upon, and Sk. Anwar had gone to his maternal uncle's place in the State of Orissa. D.W.-2 Sk. Salim Ali is the maternal uncle of Sk. Anwar and he has come to depose that Sk. Anwar had attended his marriage at Orissa on 31.4.2006 and he had also attended the marriage of his brother on 10.5.2006 at Orissa. 17. D.W.-3 is Dr. Amit Mukherjee, who has stated that on 7.5.2004, he had examined Sk. Mukhtar for a fracture of his right elbow. He was operated upon on 10.5.2004 and another operation was also done on 23.11.2005. He has proved the prescriptions and other medical documents as Exhibits-A, A/1, B and B/1 respectively. He has stated that the treatment was still continuing. In his cross-examination, this witness has stated that Sk. Mukhtar had no difficulty in the movement and speaking. D.W.-6 is Dr. Krishna Kumar Sahgal, the Jail Doctor, who has only proved a letter 16.5.2006, which is with respect to treatment of Sk. Mukhtar during his custody, and was marked Exhibit-C. 18. The defence has also got exhibited the photo copy of the alleged sanha entry, as Exhibit-D but, it appears that the Court below wrongly exhibited the same, as this is only a photostat-copy of document and even the Police Officers P.W.-8 and P.W.-10, one of whom were the author of the sanha entry were not confronted with this document. The defence has also got exhibited the photo copy of the alleged sanha entry, as Exhibit-D but, it appears that the Court below wrongly exhibited the same, as this is only a photostat-copy of document and even the Police Officers P.W.-8 and P.W.-10, one of whom were the author of the sanha entry were not confronted with this document. It was only wrongly formally taken into evidence by order dated 8.9.2008, after the evidence and the arguments in the case by the parties were over, without giving any opportunity to the prosecution to object the same and to challenge its veracity. The certified copy of the Judgment dated 20.06.2008, passed in Criminal Appeal No. 51 of 2008, was marked Exhibit-E, whereby, the accused Nanka, who was initially convicted and sentenced for the offences under Sections 25(1-B)(a) and 26 of the Arms Act by the Trial Court, was acquitted by the Appellate Court below of the said charges, giving him the benefits of doubt. 19. On the basis of the evidence on record, all the appellants were found guilty, convicted and sentenced for the offence under Sections 302/34 of the Indian Penal Code. The accused Nanka, who was also charged for the offence under Section 27 of the Arms Act, has been acquitted of the said charge by the Trial Court below, in view of his acquittal in the case separately instituted for the recovery of the firearm on the basis of his confessional statement, by the Judgment proved as Exhibit E. The accused Sk. Anwar was acquitted of the charges and it was observed that the charge under Section 148 of the IPC could not be established. 20. Learned counsels for the defence in all these appeals have submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below are absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, the prosecution has not been able to bring home the charge against the accused persons beyond all reasonable doubts. The main argument has been advanced by the learned counsel appearing for the accused Sadaullah @ Sadab @ Nanka, and his argument was adopted by the learned counsels for the other appellants. The main argument has been advanced by the learned counsel appearing for the accused Sadaullah @ Sadab @ Nanka, and his argument was adopted by the learned counsels for the other appellants. Learned counsel has submitted that the FIR in the present case is not at all admissible in law, and is hit by Section 162 of the Cr.P.C. It is submitted that the Investigating Officers of the case, P.W.-8 Prabash Nath Mishra and P.W.-10 Nag Narayan Pandey, have specifically admitted that they got the telephonic information about the occurrence, for which, the sanha entry was made. It is submitted by the learned counsel that since the telephonic information received in the Police Station was with respect to a cognizable offence, it was the sanha entry, which had to be treated as the F.I.R. in the case and not the later statement of the widow of the deceased allegedly recorded by the Police Officer. In support of his contention that the Sanha entry has to be treated as the First Information Report within the meaning of Section 154 of the Cr.P.C., learned counsel has placed reliance upon the decision of the Hon'ble Gujrat High Court in Rabari Karsan Gove v. State of Gujarat, reported in 1975 Law Suit (Guj) 90, the decision of the Hon'ble Patna High Court in Deo Pujan Thakur and Anr. v. State of Bihar, reported in 2005 Cr. L. J. 1263, and the decisions of the Hon'ble Supreme Court of India in State of Andhra Pradesh v. Punati Ramulu and Ors., reported in 1993 Cr. L. J. 3684, as also in T.T. Antony v. State of Kerala and Ors., reported in AIR 2001 SC 2637 . 21. Learned counsel has further submitted that in the present case, the FIR has been ante-timed and ante-dated, which creates serious doubt about the prosecution case. L. J. 3684, as also in T.T. Antony v. State of Kerala and Ors., reported in AIR 2001 SC 2637 . 21. Learned counsel has further submitted that in the present case, the FIR has been ante-timed and ante-dated, which creates serious doubt about the prosecution case. Learned counsel has pointed out from the FIR that though the statement of the informant is shown to be recorded on 7.5.2006 at 16.30 hours, and the FIR is also shown to be instituted in the same date at 19.15 hours, but it was sent to the Court of the Chief Judicial Magistrate, Jamshedpur, on 9.5.2006 and there is no explanation for this delay in the F.I.R. It is also pointed out by learned counsel for the appellant that even though, the F.I.R is said to be instituted on 7.5.2006, but it was not actually instituted on that date, as there is a date in the F.I.R. mentioned as 8.5.2006, but it has been rewritten as 7.5.2006, which also creates substantial doubt. This ante-dating of the F.I.R. is also substantiated from the fact that even though the post-mortem examination of the deceased was conducted on 8.5.2006, but the column of the police case number in the post-mortem report has been left vacant, which shows that the F.I.R was not lodged till 8.5.2006. Learned counsel accordingly, submitted that this clearly shows that the FIR is ante-timed and ante-dated and the entire prosecution story becomes doubtful on that basis alone. In support of this contention, learned counsel has placed reliance upon the decisions of the Hon'ble Supreme Court of India, in Bathula Nagamalleshwara Rao & Ors., v. State, reported in (2008) 11 SCC 722 , the State of Kerala v. Anilachandran & Ors., reported in (2009) 13 SCC 565 , and in Bahadur Singh & Ors., v. State of M. P., reported in (2014) 6 SCC 639 . 22. Learned counsel for the appellant has further submitted that apart from the above grounds, the recovery of firearms and cartridge could not be proved by the prosecution, as no seizure list about the same has been proved in the case. 22. Learned counsel for the appellant has further submitted that apart from the above grounds, the recovery of firearms and cartridge could not be proved by the prosecution, as no seizure list about the same has been proved in the case. There was a separate trial for the alleged recovery against the accused Nanka, but he was ultimately acquitted by the Appellate Court below, in the said case, and the Judgment of the Appellate Court below has been proved by the defence as Exhibit E. It is also submitted that even the motorcycle has not been recovered in the case. Though the Police Officers have stated that the bloodstained soil was seized by them and they have proved the seizure list of the same, but it is an admitted fact that the bloodstained soil or the bloodstained clothes were not sent for any forensic examination. 23. Learned counsel for the appellant further submits that though the informant has stated in her fardbeyan that soon before the occurrence, the deceased had taken his meals and was going to his duty, but P.W.-9 Dr. Yogendra Nath, the Doctor conducting the post-mortem examination, has admitted that the deceased must have taken his food prior to six hours of his death. Learned counsel has submitted that the informant P.W.-3 Vidya Devi in her cross-examination has stated that the deceased had taken very little food due to hot weather, only after coming to know about the post-mortem report. Learned counsel further submitted that though in the FIR, the motive is shown to be the fact that the deceased was instrumental for purchase of house by Sanjay Singh, but in her cross-examination, the informant Vidya Devi, has denied this motive, stating that her husband was not involved in that purchase. Learned counsel further submits that P.W.-9 Dr. Yogendra Nath had found the grievous injury in brain also, which was caused by hard and blunt substance, but there is no evidence by the prosecution to show as to how this grievous injury was caused. Learned counsel has also submitted that the time of death ascertained by the Doctor conducting the post-mortem examination, as within 18 to 24 hours, has no basis at all. Learned counsel has also submitted that the time of death ascertained by the Doctor conducting the post-mortem examination, as within 18 to 24 hours, has no basis at all. Learned counsel further submitted that the conduct of the informant, Vidya Devi is highly doubtful, inasmuch as, the Investigative Officer, P.W.-10 Nag Narayan Pandey has admitted in his cross-examination that there was some affair between the wife of the deceased and the accused, Nanka, and Nanka was in visiting terms with the informant and they also used to talk on mobile, but these facts have fully denied by P.W.-3 Vidya Devi in her evidence. Learned counsel further submits that even though, five accused persons were put to trial and there is same evidence against all the five accused persons, but one accused has been acquitted by the Trial Court and the same benefit ought to have been given to the other accused persons as well. It is further submitted that the evidences of the P.Ws, are full of doubts and three very important witnesses, who were the tenants of the deceased and about whom, the informant P.W.-3 Vidya Devi has stated that they were present in the house with their family members and they had also reached the place of occurrence, have not been examined by the prosecution. 24. Learned counsel for the appellant has further submitted that even the place of occurrence is also highly doubtful in the case, inasmuch as, D.W.-1 Md. Imran, DW-4 Sunil Kumar and DW.-5 Hamid Ansari have stated that the deceased was lying in front of house of Ram Pukar Pandey, from where, they had brought the deceased in front of his house, but there is no evidence by the prosecution about this place of occurrence. It is also pointed out that this fact is also supported by the sanha entry, which shows that the information to the police was that the occurrence had taken place near the house of Ram Pukar Pandey. Learned counsel submitted that the evidence of the defence witnesses also stand on the same footing and their evidence cannot be discarded only on the ground that they are the defence witnesses. Learned counsel submitted that the evidence of the defence witnesses also stand on the same footing and their evidence cannot be discarded only on the ground that they are the defence witnesses. Learned counsel lastly placed reliance upon the decision of the Hon'ble Supreme Court in Bhagwan Singh and Ors., v. State of M.P., reported in (2002) 4 SCC 85 , wherein, it is held that if two views are possible on the evidence adduced in the case, on pointing towards the guilt of the accused and other to his innocence, the view which is favorable to the accused should be adopted. Learned counsel for the accused appellant, Sadaullah @ Sadab @ Nanka accordingly, submitted that the prosecution has utterly failed to bring home the charge against the accused and it is a fit case, in which, the accused ought to have been given the benefits of doubt. Learned counsels for the other appellants adopted the same submissions. 25. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that there is only one eyewitness to the occurrence, who is P.W.-3 Vidya Devi, who has specifically stated that when upon calling by the accused Sk. Mukhtar, her husband came out of the house and she also followed him, Sk. Mukhtar also called other four accused persons and thereafter Sk. Mukhtar, Sarfaraj Khan, Anwar and Aman caught hold her husband and on the order given by the accused Sk. Mukhtar, the accused Nanka assaulted her husband by firing the pistol, causing the death of her husband. It is submitted by the learned counsel for the State that PW-4 Surendra Prasad, who being the father of the informant was present in the house, could have very easily become the eyewitness to the occurrence, had there been any intention to falsely implicate the accused persons, but even this witness has not tried to become the eyewitness to the occurrence and is only a hearsay witness so far as the occurrence of murder is concerned. Even P.W.-5 Ganesh Shankar Vidhyarthi, P.W.-6 Ram Pukar Pandey and P.W.-7 Manoj Singh have rightly deposed that upon hearing the sound of firing, they reached the place of occurrence and saw the deceased in injured condition and they were informed by the wife of the deceased about the occurrence. There is nothing in the cross-examination of these witnesses to discredit their testimonies. There is nothing in the cross-examination of these witnesses to discredit their testimonies. P.W.-1 Arun Kumar, and PW-2 Rameshwar Prasad, who are the brother and cousin of the deceased, had stated nothing about the occurrence or about the accused persons, as they had reached the hospital, only upon getting the news and had seen the dead body of the deceased. They are only the witnesses to the inquest report prepared by the police and this also shows that there was no intention on the part of the prosecution witnesses to falsely implicate the accused. Learned counsel submitted that the ocular evidence of the eyewitness and the evidence of the hearsay witnesses, are fully corroborated by the medical evidence of P.W.-9 Dr. Yogendra Nath and the post-mortem report proved by him as Exhibit-3, which shows that there was firearm injury on the chest of the deceased. Though another grievous injury in the brain was also found, caused by hard and blunt substance, but this injury is not at all unexplained, as there is evidence on record that upon getting the gun shot injury, the deceased fell down on the road, which might have caused the brain injury. It is only natural that the witnesses have not stated about this injury. 26. Learned counsel for the State has also submitted that there is no ante-dating and ante-timing of the F.I.R, inasmuch as by the time, the dead body was brought to the post-mortem house, at 5:15 PM, on the date of occurrence on 7.5.2006, as mentioned at the top of the post mortem report itself, the FIR had not yet been lodged. Learned counsel has drawn the attention of this Court towards the evidence of P.W.-8 Prabhash Nath Mishra, who has stated that after recording the fardbeyan of the informant and preparing the inquest report and the dead body challan, he himself brought the dead body to the post-mortem house and due to the absence of the Doctor, the dead body was kept in the mortuary. Thereafter, he came to the place of occurrence and he handed over the fardbeyan to the Officer-Incharge, and only thereafter, after returning back to the Police Station, the F.I.R was lodged. Thereafter, he came to the place of occurrence and he handed over the fardbeyan to the Officer-Incharge, and only thereafter, after returning back to the Police Station, the F.I.R was lodged. It is submitted by the learned counsel that since the F.I.R was not lodged by the time, the dead body was sent for post-mortem examination, the P.S Case Number is rightly not mentioned in the post-mortem report. Learned counsel also submitted that neither of the Police Officers, examined as witness in this case, i.e., P.W.-8 Prabhash Nath Mishra, or P.W.-10 Nag Narayan Pandey were confronted with any delay in sending the F.I.R to the Court or ante-dating or ante-timing the FIR, in their cross-examinations. It is submitted by the learned counsel for the State that it is a well settled principle of law that every delay in sending the F.I.R to the Court is not fatal. 27. Learned counsel for the State also pointed out that there is no substance in the evidence of D.Ws that the dead body was found near the house of Ram Pukar Pandey, inasmuch as, even Ram Pukar Pandey has been examined as P.W.-6 in the case and he has clearly stated that when he came out of the house, the deceased was lying on the road in front of his house. In any case, it has come in the evidence of P.W.-8 Prabhash Nath Mishra, the I.O., that the distance between the house of Ram Pukar Pandey and the deceased Arvind Kumar Singh is only about 30-40 steps and as such, the evidence that the occurrence had taken place near the house of Ram Pukar Pandey is not going to make any difference, as the said house is also situated very nearby. Learned counsel for the State also submitted that the sanha entry proved by the defence as Exhibit -D is not at all admissible in law, inasmuch as it is only a photostat copy and none of the Police Officers were confronted with the same in their cross-examinations. It is submitted that even otherwise, the telephonic information given in the police Station, could not be treated as the FIR in the case. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and order of sentence passed by the Trial Court below. 28. It is submitted that even otherwise, the telephonic information given in the police Station, could not be treated as the FIR in the case. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and order of sentence passed by the Trial Court below. 28. Having heard the learned counsels for both the sides and upon going through the evidence on record, we find no substance in submission of the learned counsel for the appellants that the sanha entry in the present case is to be treated as the F.I.R under Section 154 of the Cr.P.C., and the fardbeyan of the informant is hit by Section 162 of the Cr.P.C. The evidences of P.W.-8 Prabhash Nath Mishra and P.W.-10 Nag Narayan Pandey, the Investigating Officers of the case clearly show that it was only a cryptic telephonic information which was received in the Police Station about which the sanha entry was made and there was no information either about the definite death of the deceased, or about the accused persons. P.W.-8 Prabhash Nath Mishra when reached the place of occurrence, his evidence shows that his first motto was to save the life of the deceased and he did not record the statement of any person at the place of occurrence and quickly took the dead body of the deceased on the police jeep and proceeded towards the hospital where the deceased was declared dead and only thereafter, he recorded the statement of the informant, the wife of the deceased. We find no illegality in the same and we find that the detailed information about the occurrence first came to the police only upon recording of the fardbeyan of the informant, on the basis of which, the F.I.R was instituted. This fardbeyan is the First Information in the case within the meaning of Section 154 of the Cr.P.C., and is not at all hit by Section 162 of the Cr.P.C. We also find that the sanha has been wrongly taken in evidence in this case, in view of the fact that it is only a photostat copy of its original and none of the Police Officers examined in the Court below were confronted with this document. This photostat copy of the sanha could not have been taken into evidence in the formal manner as has been done by the Trial Court below and the same cannot be looked into. 29. As regards the submission regarding the delay in sending the F.I.R to the Court, we find some substance in the submission of the learned counsel for the defence, as the F.I.R was lodged on 7.5.2006, but the same was sent to the Court on 9.5.2006. The reason for this delay has not been explained by the prosecution, but the fact remains that every delay in sending the F.I.R to the Court is not always fatal to the prosecution. In Bahadur Singh's case (supra), relied upon by the learned counsel for the defence, there was delay of about 16 hours in sending the F.I.R to the Court, and it was held that there was no inordinate delay in sending the F.I.R to the Court. In Anil Chandran's case (supra), relied upon by the defence, the law has been laid down as follows :- "13. It is true that the delay itself does not make the investigation tainted. (See Pala Singh V. State of Punjab). The position was reiterated in Sarwan Singh V. State of Punjab where it was observed that the police should not make unnecessary delay in sending the FIR. Delay in sending the FIR to the Magistrate sometimes affords opportunity to introduce improvement and embellishment thereby resulting in a distorted version of the occurrence. Section 157 of the Code of Criminal Procedure, 1973 (in short "the Code") mandates that the report should be sent to the Magistrate forthwith. That itself indicates the urgency. It needs to be noted here that where an explanation is offered by the prosecution for the delay, that has to be tested. The unexplained delay by itself may not be fatal, but is certainly a relevant aspect which can be taken note of while considering the role of the accused persons for the offence." (Emphasis supplied.) 30. As regards the submission of ante-dating and ante-timing the F.I.R., we find that the fardbeyan of P.W.-3 Vidya Devi was recorded at the hospital on the date of occurrence itself, and the F.I.R was also lodged on the same date. As regards the submission of ante-dating and ante-timing the F.I.R., we find that the fardbeyan of P.W.-3 Vidya Devi was recorded at the hospital on the date of occurrence itself, and the F.I.R was also lodged on the same date. Though in the F.I.R, there is a date mentioned as 8.5.2006, which appears to be corrected as 7.5.2006, but the attention either of P.W.-8 Prabhash Nath Mishra or of P.W.-10 Nag Narayan Pandey, the Investigating Officers of the case, were not drawn towards this correction. Non-mentioning of the P.S Case in the post-mortem report is also fully explained, inasmuch as the dead body was sent for post-mortem examination prior to the institution of the F.I.R., and only after sending the dead body, the F.I.R was instituted. It thus cannot be said that the F.I.R was either ante-dated or ante-timed. There may be some unexplained delay in sending the F.I.R to the Court concerned, but in view of the consistent evidence of the prosecution witnesses, we do not find that this delay in sending the F.I.R is fatal to the prosecution case. 31. Though the learned counsel for the defence has tried to submit that there was an affair between the accused, Nanka and the informant Vidya Devi, which fact is also supported by the evidence of P.W.-10 Nag Narayan Pandey, but the same is denied by the informant Vidya Devi, thus casting doubt on the veracity of her evidence. we find no substance in this submission. The informant has fully denied any such allegation and the I.O. P.W.-10 Nag Narayan Pandey has only stated that this fact was disclosed in the confessional statement of the accused. There was no independent investigation on this point by P.W.-10 Nag Narayan Pandey to show any illicit affair between the informant and the accused, or to show that they were in talking terms, or the accused Nanka used to visit the wife of the deceased. P.W.-10 Nag Narayan Pandey has only stated about the confessional statement of the accused, and nothing further. 32. P.W.-10 Nag Narayan Pandey has only stated about the confessional statement of the accused, and nothing further. 32. We are also of the considered view that non-sending the bloodstained soil or the bloodstained cloth for forensic examination is not fatal to the prosecution in the present case, as the bloodstained soil was collected from the place from where the dead body itself was found and the bloodstained cloth was also taken from the dead body itself, and as such, there could be no doubt that the blood was the human blood. Had the bloodstained soil been recovered from somewhere else, there would have been some force in the submission of the learned counsel for the defence, but it is not the prosecution case that the bloodstained soil was recovered from somewhere else. We do not find any substance in the evidence of D.Ws that the occurrence had taken place near the house of Ram Pukar Pandey and the deceased was brought by them near his house, inasmuch as, the evidences of these witnesses are not at all reliable as they have stated that they did nothing after bringing the deceased to his house. This is against the natural human conduct and had they brought the deceased to his house from the said place, they would have taken further part in taking the deceased to the hospital or they could have been examined by the police. Even otherwise, there is practically no distance between the house of the deceased and the house of Ram Pukar Pandey, as according to the P.W.-8 Prabhash Nath Mishra, the I.O., this distance is only about 30-40 steps. It can very well be said that the occurrence had taken place either in front of the house of the deceased, or near the house of Ram Pukar Pandey, and this makes no difference at all. 33. We find from the evidence on record that though P.W.-3 Vidya Devi has taken the name of five named accused persons, but the independent witnesses, namely, P.W.-6 Ram Pukar Pandey had seen only the accused Nanka and Aman fleeing on one motorcycle and P.W.-7 Manoj Singh had seen only the accused Sarfaraj and Mukhtar fleeing away on the other motorcycle. The evidence of P.W.-3 Vidya Devi shows that all the accused persons fled away on two motorcycles. The independent witnesses had not seen Sk. Anwar fleeing on any motorcycle. The evidence of P.W.-3 Vidya Devi shows that all the accused persons fled away on two motorcycles. The independent witnesses had not seen Sk. Anwar fleeing on any motorcycle. The defence witness, namely, D.W.-2 Sk. Salim Ali and D.W.-1 Md. Imran have stated that Sk. Anwar had gone to his maternal uncle's place on the date of occurrence. This evidence was also corroborated in the cross-examination of P.W.-6 Ram Pukar Pandey. As such, we find that the accused Sk. Anwar has rightly been given the benefits of doubt by the Trial Court below and he has been acquitted of the charge. The evidence brought by the defence to show that the hand of the accused Sk. Mukhtar was fractured and he was not in a position to take part in the offence, is of no benefit to the said accused. D.W.-3 Dr. Amit Mukherjee has clearly stated that even the second surgery on his hand was done on 23.11.2005, i.e., about 6 months prior to the occurrence and there was no difficulty in the movement of hand. From the evidence on record, we find that the prosecution has been able to bring home the charge against all the remaining accused appellants beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below. 34. In view of the foregoing discussions, the impugned Judgment of conviction and Order of sentence dated 19.9.2008 (in the case of the appellant Sarfaraj Khan, order of sentence dated 27.08.2010), passed by the learned Additional Sessions Judge-I, Jamshedpur, in S.T Case No. 291 of 2006, are hereby, affirmed. The accused Md. Sadaullah @ Sadab @ Nanka is already in custody and undergoing the sentence. The other accused appellants, namely, Anwar Ali @ Aman, Sk. Mukhtar and Sarfaraj Khan are on bail. Their bails are hereby canceled. All these appellants are directed to surrender in the Court below forthwith for serving out their sentences. The Court below is also directed to issue process forthwith, compelling the surrender/production of all these appellants for serving out the sentence. 35. We find no merit in these Criminal Appeals and accordingly, all the four Criminal Appeals stand dismissed. Let the Lower Court Records be sent back forthwith to the Court concerned along-with a copy of this Judgment.