Jharkhand High Court
Suresh Sahu vs The State Of Bihar (Now Jharkhand) on 10 February, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.150 of 1994 (R)
(Against the Judgment of conviction dated 30th August, 1994 and Order of
sentence dated 31st August, 1994 passed by the 3rd Additional Judicial
Commissioner, Ranchi in Sessions Trial Case No.128 of 1991).
1. Suresh Sahu
2. Aditya Sahu @ Aditya Pd. Sahu .... Appellants
Versus
The State of Bihar (Now Jharkhand) ..... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
.....
For the Appellants : Mr. A.K. Kashyap, Sr. Advocate
Mrs. Lina Shakti, Advocate
For the State : Mr. Ravi Prakash, Spl. P.P.
For the Informant : Mr. Jyoti Prasad Sinha, Advocate
.....
C.A.V. on 01.02.2023 Pronounced on 10.02.2023
Subhash Chand, J.:- Heard learned senior counsel for the appellants and
learned counsel for the State as well as learned counsel for the
informant.
1. The instant criminal appeal is preferred on behalf of the
appellants against impugned Judgment of conviction dated 30th
August, 1994 and Order of sentence dated 31st August, 1994 passed
by the 3rd Additional Judicial Commissioner, Ranchi in Sessions Trial
Case No.128 of 1991, whereby, the appellants have been convicted
for the offence under Sections 120-B, 302 and 302/149 of the Indian
Penal Code and they were sentenced to undergo imprisonment for
life under the aforesaid offence. Further all the sentences were
directed to run concurrently.
Cr. Appeal (DB) No.150 of 1994(R)
2. The prosecution case in brief is that the informant--Rameshwar
Sahu had given the written information with the police station
concerned with these allegations that on 11th May, 1990 he along
with his son--Gajendra Prasad Gupta had gone to village Jhinjhri in a
Jatra fair for selling sweets. The informant, his son, villagers--Ashok
Sahu, Khakhndu Sahu and Jatan Sahu proceeded for their home from
Jatra at 7:30 o' clock of evening and on the way, when they reached
to village Dhumphu four to five persons armed with lathi and hockey
came there. One of them stopped the cycle of his son by inserting
the hockey stick in the wheel of the same. All of them caught hold of
his son and took him at one side. The informant and other who had
accompanied him also made effort to rescue him but all the accused
persons criminally intimidated them. All the accused persons
assaulted his son and his son was crying not to kill him addressing
the name Aditya and Suresh. The informant was too old and was
having weak eye sight, so he could not rescue his son at the place of
occurrence. When his son stopped crying, all accused persons fled
away. He found his son lying in pool of blood. The blood was oozing
from his forehead and other parts of body. On being asked his son
told him that it was Suresh, Aditya and five to six unknown persons,
who had assaulted him. His son was crying, however, he took his son
to RMCH, Ranchi where he died on 12th May, 1990. After
postmortem, the dead body was brought at the house and same was
cremated. A case was pending between his son and his nephew
Suresh and Aditya. The reason of the same is that there was land in
Cr. Appeal (DB) No.150 of 1994(R)
his name and his brothers which was acquired by the Central
Coalfields Limited and in lieu of acquisition of land, Suresh and Aditya
were given job and no job was given to his son, therefore, his son
had filed the case and on account of this animosity Aditya and Suresh
along with five to six unknown persons had committed the murder of
his son.
3. On this, written information, the Case Crime No.43 of 1990 was
registered against the accused Suresh Sahu, Aditya Sahu and five to
six unknown persons for the offence under Sections 147, 148, 149,
120-B and 302 of the Indian Penal Code at Mandar police station,
sub-division Sadar Ranchi. The Investigating Officer after having
concluded the investigation filed charge-sheet against the accused
Suresh Sahu and Aditya Sahu for the offence under Section 147, 148,
149, 120-B and 302 of the I.P.C. before the court of Chief Judicial
Magistrate, who took the cognizance on the charge-sheet and
committed the case for trial to the court of Sessions Judge.
4. The trial court framed charge against the accused persons for the
offence under Section 302 read with Section 149 of the I.P.C. and
Section 120-B of the I.P.C. and they denied the charge framed
against them and claimed to face the trial.
5. On behalf of the prosecution in oral evidence examined P.W.1-
Tapeshwari Kumari, P.W.2-Saroj Kumari, P.W.3-Rameshwar Sahu,
P.W.4- A.B. Singh, P.W.5- Dr. Ajit Kumar and P.W.6-Jagarnath Ram.
6. On behalf of the prosecution in documentary evidence adduced
fardbeyan Ext.1, post-card letter Ext.2, statement of informant-
Cr. Appeal (DB) No.150 of 1994(R)
Rameshwar Sahu under Section 164 Cr.P.C. Ext.3 and 3/1,
substituted copy of postmortem report Ext.4 and formal F.I.R. Ext.5.
7. The statement of accused persons under Section 313 of the
Cr.P.C. was also recorded, wherein the accused persons denied the
incriminating circumstances against them and stated to adduce
defence evidence.
8. On behalf of the defence in oral evidence examined D.W.-1
Jatan Sahu, D.W.-2 Khakhndu Sahu, D.W.-3 Ashok Kumar, D.W.-4
Jagarnath Prasad Pandit, D.W.-5 is Prabhakar Jha and D.W.-6 Ram
Lakhan Mandal.
9. On behalf of the defence in documentary evidence adduced
signature of Rameshwar Sahu on fardbeyan dated 12th May, 1990
Ext. A, signature of Aditya Sahu on attendance register Ext.A/1,
signature of Aditya Sahu on over time register Ext.A/2, signature of
Chief Finance Manager on letter dated 16.02.1990 of C.C.L. Ext. A/3,
signature of Suresh Prasad Sahu on attendance register Ext.X,
signature of Suresh Prasad Sahu on over time register Ext.Y, letter of
CCL dated 16th February, 1990 Ext.Z and F.I.R. Ext.B.
10. The learned trial court after hearing the learned counsel for the
parties and after appreciation of the evidence on record, passed the
impugned judgment of conviction and order of sentence against the
accused Aditya Sahu and Suresh Sahu.
11. The said convicts being aggrieved with the judgment of
conviction dated 30th August, 1994 and order of sentence dated 31st
August, 1994 preferred the present criminal appeal on the ground
Cr. Appeal (DB) No.150 of 1994(R)
that the impugned judgment of conviction and order of sentence is
against the fact and the law. The learned trial court ought to have
held having regard to the fact that informant had made an earlier
fardbeyan before the Officer-in-Charge of Bariatu police station which
was his first statement and admittedly bears his signature should
have been treated as the first information report which is Ext.5. The
trial court ought to have held having regard to the fardbeyan made
before the Bariatu police station where no name of the appellants
were mentioned in the same. The second F.I.R. was lodged at the
Mandar Police Station which was concocted one in which the name of
the appellants were mentioned. It is further stated that as per
prosecution case, the occurrence took place at 08:30 o' clock of
evening and there was no source of identification at the time of
occurrence. The F.I.R. of this case was also lodged belated and there
is no cogent explanation of the delay in lodging the F.I.R. The only
eye-witness of the occurrence, as per prosecution case, is the
informant but he gives the different statement at different times as in
his fardbeyan before the Bariatu police station, the name of the
accused persons were not mentioned while in the second F.I.R.
which was given at Mandar police station for the first time, the name
of the accused persons were mentioned. There is no independent
witness of the occurrence and the daughters of the informant are not
the reliable witnesses of the occurrence, as they were not present at
the place of occurrence. The appellants were not present at the place
of occurrence at the alleged time of occurrence. The learned trial
Cr. Appeal (DB) No.150 of 1994(R)
court had not considered the defence evidence adduced to that effect
on record. Accordingly, the appellants prayed to allow the present
criminal appeal by setting aside the impugned judgment of conviction
and order of sentence.
12. We have heard the rival submissions of the learned counsels for
the parties and perused the materials available on record.
13. In order to decide the legality and propriety of the impugned
judgment of conviction and order of sentence passed by the learned
trial court, it is necessary to re-appreciate the evidence adduced on
behalf of the prosecution which is reproduced herein as follows:
14. P.W.-1 Tapeshwari Kumari in his examination-in-chief
stated that the occurrence was of 11th May, 1990 of night at 08:30 o'
clock. She was at her house with her younger sister Saroj Kumari.
Manohar Sahu and Raju came to her house and told that her brother
had been assaulted. Thereafter, Khakandu Sahu, Ashok Kumar, Sukra
Pandit, Ekka Pandit, her father Rameshwar Sahu and her brother
Gajendra Sahu came. They brought her brother Gajendra Sahu in a
wooden rickshaw. Her brother Gajendra Sahu was in injured
condition and she saw injury on his forehead. She applied the oil and
water on his head. Her brother told that Suresh and Aditya had
assaulted him. Further he asked her to take him to the hospital
immediately. Her father Rameshwar Sahu, Khakhandu, Ashok Kumar,
Bhuneshwar and Gopal took him to the hospital, where her brother
died. Accused Suresh Sahu and Aditya Sahu who killed his brother
are present in the Court to whom she recognize.
Cr. Appeal (DB) No.150 of 1994(R)
In cross-examination, this witness says that at the time of
occurrence, her brother was doing government job. The courtyard of
Suresh Sahu, Aditya Sahu and her are common. The father of Suresh
Sahu, Aditya Sahu and her father are brother and there was no
talking terms between her father, Suresh and Aditya Sahu. Her father
had also no talking terms with Suresh and his family members. Her
brother had sustained three to four head injury and the blood was
oozing. The CCL had acquired their land and in lieu of the same, the
accused persons got the service. Her brother did not get any service
and when her brother was brought he was laid on the bed and pillow
in the thela. He was brought in the courtyard of the house. She made
him to lay at the cot and her brother told her that Suresh Sahu and
Aditya Sahu had assaulted him. At that time all those persons, who
had brought him by the thela were present there. It is wrong to say
that she was giving the statement being tutored by her brother-in-
law.
15. P.W.-2 Saroj Kumari in her statement says that the
occurrence was of 11th May, 1990 at 08:30 o' clock of night. She was
along with her sister at house. Manohar Sahu and Dilip Kumar came
there and told that her brother-Gajendra Kumar had been assaulted.
After five minutes, her brother was brought at the house. Her brother
was brought at the house by Ashok Kumar, Khakhandu Sahu, Jatan
Sahu, Rameshwar Sahu and her brother was severely injured. He had
three to four injuries on his forehead. The oil was applied on his head
and he was also given medicine. On being asked by her sister, he
Cr. Appeal (DB) No.150 of 1994(R)
told that Suresh and Aditya had assaulted him. Suresh and Aditya
both were present in the court and she recognized them. Thereafter,
her brother was taken to the hospital where he died. At that time she
was studying in 10th class. Aditya Sahu and Suresh Sahu were her
cousin brother. The name of father of Aditya Sahu is Laxman Sahu
while the name of father of Suresh Sahu is Bigan Sahu. Her father,
Laxman Sahu and Bigan Sahu are the real brothers. She did not
reach at the place of occurrence. When her brother was made to lay
on the bed, the blood was oozing from his forehead. Pillow, bed-
sheet and quilt, all were wet with the blood.
16. P.W.-3 Rameshwar Sahu in his statement says that the
occurrence was of Friday and it was 11th May, 1990. In the evening
about 7 to 7:30 p.m. Khakandu Sahu, Ashok, Manohar Sahu and Dilip
Kumar all were coming from Jhinjhari fair and his son Gajendra Sahu,
Jatan Sahu and Budhram Lohar were also coming from the fair.
When they reached near Jinjhari Dam, Suresh and Aditya dragged his
son Gajendra and assaulted him with rod. His son cried for help
addressing Suresh and Aditya not to kill him. Upon hearing crying, he
reached towards the pit and he was having lantern in his hand which
was broken by Suresh with lathi. He also pushed him and he fell
down on the ground. Suresh and Aditya both fled away after having
assaulted Ganjendra. Khakhandu and Ashok also came there. All the
three took out Gajendra from the pit and Gajendra was taken to
Lotambi village from where he was brought by thela to his house. On
reaching to the house, his daughter applied oil and water on the
Cr. Appeal (DB) No.150 of 1994(R)
injury of Gajendra. His son, Gajendra asked him to take him to the
hospital and he was taken to Mandar hospital, where the doctors
refused to treat him and he was taken to RMCH. His son was died at
RMCH on 12th May, 1990. Bariatu police has not recorded his
statement. Bigal Ji and Laxman Ji has got his signature on some
paper. Postmortem was also conducted and after postmortem, the
dead body of his son was cremated. On account of the death of his
only son, he was not in fit state of mind. He recalled that he had
given the application with Mandar police station and put his
signature. It was written by Jhirga Oraon at his behest which was
marked Ext. 1. The land of the accused persons was acquired by the
CCL and the accused persons got service by telling lie. There was
strained relationship between them and a letter was sent by accused-
Suresh to him which he recognized and marked Ext.2. He identified
both the accused persons present in the dock.
In cross-examination, this witness says, this letter was shown
by me to the Daroga ji of Mandar police station. He also made the
entry of the same in his diary and he is not aware whether there is
any seal of the jail on this letter, since he is illiterate. He could only
sign and he had seen Suresh reading and writing. Since, he was not
in complete senses after murder of his son, he could not say at
whose behest the postmortem was conducted. He put his signature,
Ext.A in RMCH. Bigal and Laxman are his brother. He does not
remember whether he has stated to Magistrate that Bigal and
Laxman got his signature on an application at Mandar police station.
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Cr. Appeal (DB) No.150 of 1994(R)
In Bariatu police station he did not give any statement to 'Daroga ji'.
He had not given such statement to Daroga ji in Bariatu police station
that on 11th May, 1990, his son Gajendra Prasad Gupta had gone to
sell the sweets in jatra fair at Jhinjari and on reaching there, three
persons came to purchase the sweets from him and after giving the
sweets on the issue of payment of the same the quarrel arose. He
did not given any such statement in Bariatu police station that after
altercation those unknown persons had criminally intimidated his son.
He did not give any statement that on intervention of some persons,
the matter was pacified and when they reached to Jhinjhari, the fair
was over. Those unknown persons had inserted the hockey stick in
the wheel of the cycle, whereby his son fell down. When his son was
fleeing away, he was caught hold of and was assaulted with lathi,
hockey and chain. In the fair, only some altercation took place with
some tribal persons to whom he did not recognize. This altercation
took place on payment of 250 grams of sweets. He is familiar with
Lalu Ahir and Etwa Oraon, who were present at that time. He
did not told to Daroga ji that his daughter had heard that Suresh and
Aditya had killed his son. He stated in Mandar police station that his
lantern was broken by Suresh. Suresh and Aditya both were seen by
him assaulting to his son Gajendra. He told to the Magistrate that his
daughter had told that she came to know that Aditya and Suresh had
assaulted his son. The dead body remained at his house overnight.
On that night, he did not make effort to inform the police and on
next day after cremation, he went to the police station with Manohar,
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Cr. Appeal (DB) No.150 of 1994(R)
Jhirga Oraon, Khusbuddin Ansari and lodged the F.I.R. He had told to
the police to give his further statement before the Magistrate. Daroga
Ji had brought him since in the former statement he could not give
the name of Aditya. In second statement before the Magistrate, he
had given the name of both his nephew.
They are three brothers and all are real brothers. He and Bigan
are the blood brother while he and Laxman are step brother. His
father had seven to eight acres of land.
His brother Bigal and Laxman resides in one house while he
resides in another house but the courtyard of both the houses are
common. There was no talking terms between him and the accused
persons. His son had filed case for service in C.C.L. Two and half
months ago he got service in Bal Vikas Yojana before the occurrence.
His land was also acquired by the C.C.L. and in lieu thereof he was
paid compensation. Bigal and Laxman also got compensation of their
share as their lands were also acquired by the C.C.L. When Suresh
and Aditya got service in lieu of acquisition of land, at that time his
son was 25 to 26 years old. He had passed the B.A. C.C.L. had
replied that in lieu of acquisition of six acres of land, only two
persons could be given service. The total land of all the three
brothers were 6 acres 2 decimals.
It is wrong to say that tribal persons had committed the murder
of his son on the issue of quarrel which took place in the fair. It is
also wrong to say that he was acquainted with the assailants. It is
also wrong to say that he had given statement in Bariatu police
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Cr. Appeal (DB) No.150 of 1994(R)
station. It is also wrong to say that on the date of occurrence Suresh
and Aditya both were on their duty.
At the time of occurrence, while raising alarm Khakhandu,
Ashok and Manohar had fled away. They did not come for his help
and at that time he was alone. Ashok and Khakhandu had hid
themselves. Ashok and Khakhandu came later on and he did not tell
to them who caused the occurrence. He did not tell even to the
persons of the village in regard to the occurrence and he took his son
to the hospital. There was mob of 50 to 100 persons at the hospital
but he did not tell to the doctors in Mandar hospital, who had
assaulted to his son. When he had reached to Bariatu police station,
at that time Ashok, Gopal Sahu, Bhuneshwar and Jatan Sahu were
with him. He also did not tell them in regard to the assailants, who
assaulted to his son.
After death of his son, he demanded the dead body of his son.
No one came from Bariatu police station to him, only his brother got
signature on one paper. When he put the signature on that paper
Bhuneshwar, Chunnu Saw, Ashok and Gopal also asked him to put
the signature thereon. All the four persons had told him that his
brothers had got the signature of him on a paper. He was told that
only after his signature, the dead body would be handed over to
them. On reaching Bariatu hospital, his son-in-law, his elder daughter
Shakuntala and Pratima and her husband Nilkanth Babu also reached
there. When Bigal and Laxman got his signature on the paper the
said relatives of him were not present. When he gave the statement
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Cr. Appeal (DB) No.150 of 1994(R)
before the Magistrate he was in fit state of mind. Daroga ji had read
over to him his former statement and told that name of another
accused had been omitted, therefore, the second statement was
recorded before the Magistrate.
17. P.W.-4 B.K. Singh in his examination-in-chief stated that on
19th May, 1990 he was posted as Judicial Magistrate at Ranchi and on
that day he recorded the statement of Rameshwar Sahu under
Section 164 Cr.P.C. which is in his handwriting and signature which
was marked Ext.3. Again on 21st May, 1990, he recorded the
statement of Rameshwar Sahu under Section 164 Cr.P.C. which is
also in his handwriting which was marked as Ext.3/1.B. In cross-
examination, this witness says that before recording the statement of
Rameshwar Sahu, he had ascertained that he was in fit state of mind
to give the statement. After having recorded the statement he had
read over the statement to him and after hearing the same he put his
signature thereon.
18. P.W.-5 Dr. Ajit Kumar Chaudhary conducted the
postmortem of deceased Gajendra Prasad Gupta on 12th May, 1990
at 18:00 hours and found following injuries :
Abrasions
i. ½" x ½" cm, ½ x ½ cm over left elbow back.
ii. ½ x ½ c.m. over left thumb.
Bruises :
i. 8x2 cm, 9x2 cm over front of abdomen upper part situated
transversely.
ii. 5x2 cm over front of right side abdomen.
iii. 4x2 cm over front of right thigh.
Lacerated wound (stitched):
i. 4x1 cm x scalp deep over the right parietal region of head.
ii. 4 ½ x1 cm x scalp deep on the right occipital region of head.
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Cr. Appeal (DB) No.150 of 1994(R)
iii. 4x1 cm x scalp deep over left parietal region of head.
All the injuries were ante mortem caused by hard and blunt
substance may be by lathi and hockey. Death happened due to head
injury. Times elapsed since death was 6 to 24 hours from the time of
postmortem. This postmortem report was written by him and bears
his signature which was marked Ext.4.
In cross-examination, this witness says that this postmortem
relates to Bariatu P.S. Case No.1858 dated 12th May, 1990 and not of
Mandar P.S. Case No.43 of 1990. He had opened the stitched wound.
The stitch wound was a surgical wound. It is not correct to say that
surgical wound will not be an ante mortem wound.
There were five injuries upon the head out of them three were
external and two were internal. Person receiving these types of
injuries may remain conscious. He cannot say about the
duration of consciousness. Patient's both sides of the brain was
found injured. The external laceration on the body of the deceased
was grievous one.
Those stitch wounds are possible by hard and blunt substance
only. He had read the Medical Jurisprudence. It is not necessary that
in case where the whole scalp is contused, the victim will remain
unconscious.
19. P.W.-6 Jagarnath Ram in his examination-in-chief stated
that in the year 1990, he was constable in the court and he has
proved the F.I.R. which was marked Ext.5.
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20. Learned senior counsel for the appellants has contended that
the F.I.R. of this case was lodged on the basis of the second written
information while prior to that fardbeyan of informant was recorded
with Bariatu police station in which the name of the accused persons
were not disclosed in regard to murder of son of the informant-
Rameshwar Sahu and that fardbeyan should have been treated as
first information report because the same has been suppressed. This
fardbeyan was recorded on 12th May, 1990 and the inquest and
postmortem was also conducted after lodging the case with Bariatu
police station. The F.I.R. of this case was lodged on the basis of the
second written information after conducting the inquest. The same is
fabricated and belied as the name of the appellants-accused were
mentioned afterthought on account of animosity. As such, the F.I.R.
was lodged after two days of the occurrence and there is no cogent
explanation of the same on behalf of the prosecution.
21. Per contra, learned A.P.P. contended that fardbeyan dated 12th
May, 1990 was never given by the informant--Rameshwar Sahu.
Rameshwar Sahu (P.W.-3) had denied the same and he stated that
his statement was not recorded at Bariatu police station and he only
identified his signature thereon. He further stated that his brothers,
namely, Bigan and Laxman has got his signature on a blank paper by
telling him that the dead body of his son would be handed over only
after putting his signature on that paper. Further P.W.-3 denied the
contents of the fardbeyan dated 12th May, 1990 and he had given the
written information with the police station Mandar on 13th May, 1990.
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Cr. Appeal (DB) No.150 of 1994(R)
On the basis of the same, formal F.I.R. was drawn on 13th May, 1990
which was registered on Case Crime No.43 of 1990 and the contents
of the written information dated 13th May, 1990 on which the formal
F.I.R. was drawn has been proved by the P.W.-3, the maker of the
F.I.R. There is no contradiction in the contents of the F.I.R. and the
statement given by this witness P.W.-3 before the trial court. So far
as the delay in lodging the same is concerned, the reason of the
same is also explained in the statement of this witness P.W.-3. As
such neither the fardbeyan was suppressed nor the delay in lodging
the F.I.R., whatever the delay occurred, the same is because the
informant firstly rushed to save the life of his son, who died in the
hospital. The postmortem of dead body of his son was done and his
dead body was cremated, thereafter, he lodged the F.I.R.
22. The fardbeyan dated 12th May, 1990 is on record. Though
signature on this fardbeyan is admitted to P.W.-3 Rameshwar Sahu,
yet the contents of this fardbeyan is not admitted to P.W.-3
Rameshwar Sahu. This witness in his statement has stated that he
did not give the fardbeyan at Bariatu and stated that since his
brother Laxman and Bigal had got the signature on a paper by saying
that the dead body would be handed over only after putting his
signature. With this impression, he put the signature on that paper
and no such statement was given by him to daroga ji which was
recorded in fardbeyan dated 12th May, 1990. It was the very reason
that on the basis of this fardbeyan, no formal F.I.R. was drawn.
Though the sanha of the same entered.
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Cr. Appeal (DB) No.150 of 1994(R)
23. From the perusal of this fardbeyan which is denied by the
informant-Rameshwar Sahu, it is found that in this case, the name of
the assailants who committed the murder of his son are not shown.
It was lodged against the unknown persons and it is also mentioned
that on 11th May, 1990 in the fair, the altercation had taken place
between his son and some person of tribal caste on the issue of
payment of sweets which was being sold by his son Gajendra Gupta
and amid the way his son was assaulted with hockey, lathi and chain
by the unknown persons. As such it is found that this fardbeyan
is not suppressed on behalf of the prosecution, rather the
contents of the same being denied by the informant himself
and the informant also denied the execution of the
fardbeyan. So on the basis of the same, no formal F.I.R. was
lodged.
The informant--Rameshwar Sahu moved the written
information on 13th May, 1990 in which he stated that on 11th May,
1990 his son Gajendra Prasad Gupta had gone to sold the sweets in
the fair. In the evening at 7 o' clock, they came back from the fair
and along with them Ashok Sahu, Khakhnadu Sahu and Jatan Sahu
were also present. Amid the way at 7:30 near Damphu, four to five
persons armed with lathi and hockey obstructed to his son. One
person put the stick in the wheel of his cycle and they caught hold of
his son and took him near the pit and assaulted him. When he came
to rescue his son, he was also criminally intimidated and his son was
crying addressing Aditya and Suresh not to kill him. As he was too
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Cr. Appeal (DB) No.150 of 1994(R)
old age and had weak eye-sight could not rescue his son from the
assailants. His lantern was also broken by Suresh and he was also
pushed and he fell down on the ground. His son also told him that
Suresh and Aditya along with five to six persons assaulted him.
Thereafter, he took his son to RMCH, Ranchi, where he died on 12th
May, 1990. After postmortem, the dead body was brought at his
house and after cremation, he lodged the F.I.R. It is also mentioned
in the written information that Aditya and Suresh Sahu had
committed this murder because there was dispute on the issue of
acquisition of land in CCL and getting service in lieu of the same by
Suresh and Aditya wherein his son for not getting the service had
filed the case. The contents of this written information (Ext.1)
are also proved by this witness P.W.-3 Rameshwar Sahu.
There is no material contradiction in the contents of this
written information Ext.B and the statement given by P.W.-3
before the trial court. On the basis of this written
information, the formal F.I.R. was also prepared which was
registered at Case Crime No.43 of 1990. The same is also
proved by the P.W.-3 Rameshwar Sahu which was marked
Ext.5.
From the statement of P.W.-3 Rameshwar Sahu, it is evident
that this witness has stated that on 11th May, 1990 at 07:30 the
occurrence took place. He had lantern in his hand and the assailants
had assaulted to his son and threw him in a pit in injured condition.
The son was brought out with the help of Ashok Sahu, Khakhandu
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Cr. Appeal (DB) No.150 of 1994(R)
Sahu and Jatan Sahu. He carried his son from there by bicycle to the
nearby village Lotambi and from there by thela to his house.
Thereafter his daughters had put oil and water and his son told him
to take him to hospital, where at Mandar Hospital, the doctor denied
to give the treatment. Thereafter, his son was taken to RMCH, Ranchi
and on next day i.e., 12th May, 1990 his son died. On 12th May, 1990,
the postmortem was conducted and he brought the dead to his
house and overnight the dead body remained at his house and on
next day, the same was cremated. After cremation, he lodged the
F.I.R. on 13th May, 1990. Therefore, the delay in lodging the
F.I.R. is well explained from the statement of P.W.-3
Ramehswar Sahu and same is not fatal to the prosecution
case.
24. In the case in hand, since the fardbeyan dated 12th May,
1990 has been totally denied by the informant, as such, the
same cannot be the basis of the F.I.R. It is written
information dated 13th May, 1990 which contents are proved
by the informant--P.W.-3, the maker of the written
information. On the basis of which, the Case Crime No.43 of
1990 was lodged with the police station Mandar and,
thereafter, the investigation was conducted by the I.O.
Therefore, the contention of the learned senior counsel for
the appellants that the second F.I.R. on the basis of written
information dated 13th May, 1990 is bad in law is not
sustainable, since, the fard beyan dated 12th May, 1990 has
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Cr. Appeal (DB) No.150 of 1994(R)
been totally denied by the P.W.-3 Rameshwar Sahu (the
informant) and merely by admitting the signature thereon.
Though the exhibit was marked on this fardbeyan, yet the
contents of the same has not been proved by the P.W.-3 and
he stated that indeed he was illiterate. His signature was
taken by his brother Laxman and Bigan by saying that the
dead body could be given after postmortem only, if he put
the signature thereon. Under that impression, he had put his
signature on that paper and he had not given any written information
as mentioned in the same.
25. The Hon'ble Apex Court in the case of T.T. Antony vs. State
of Kerala and Others reported in AIR 2001 Supreme Court
2637 at paragraphs 18, 19 and 20 has held as under :
"18. An information given under sub-section (1) of Section 154
of Cr.P.C. is commonly known as First Information Report
(FIR) though this term is not used in the Code. It is very
important document. And as its nick name suggests it is the
earliest and the first information of a cognizable offence
recorded by an officer-in-charge of a police station. It sets the
criminal law into motion and marks the commencement of the
investigation which ends up with the formation of opinion
under Sections 169 or 170 of Cr.P.C., as the case may be, and
forwarding of a police report under Section 173 of Cr.P.C. It is
quite possible and it happens not infrequently that more
information than one are given to a police officer-in-charge of
a police station in respect of the same incident involving one
or more than one cognizable offences. In such a case he need
not enter every one of them in the station house diary and this
is implied in Section 154 of Cr. P. C. apart from a vague
information by a phone call or cryptic telegram, the
information first entered in the station house diary, kept for
this purpose, by a police officer-in-charge of police station is
the First Information Report - F.I.R. postulated by Section 154
of Cr. P. C. All other information made orally or in writing after
the commencement of the investigation into the cognizable
offence disclosed from the facts mentioned in the First
information Report and entered in the station house diary by
the police officer or such other cognizable offences as may
come to his notice during the investigation, will be statements
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Cr. Appeal (DB) No.150 of 1994(R)
falling under Section 162 of Cr.P.C. No such information
/statement can properly be treated as an FIR and entered in
the station house diary again, as it would in effect be a second
FIR and the same cannot be in conformity with the scheme of
the Cr. P. C. Take a case where an FIR mentions cognizable
offence under Sections 307 or 326 I.P.C. and the investigating
agency learns during the investigation or receives a fresh
information that the victim died, no fresh FIR under Section
302 I.P.C. need be registered which will be irregular, in such a
case alteration of the provision of law in the first FIR is the
proper course to adopt. Let us consider a different situation in
which H having killed W, his wife, informs the police that she
is killed by an unknown person or knowing that W is killed by
his mother or sister, H owns up the responsibility and during
investigation the truth is detected; it does not require filing of
fresh FIR against H the real offender-who can be arraigned in
the report under Section 173(2) or 173(8) of Cr. P. C. as the
case may be. It is of course permissible for the investigating
officer to send up a report to the concerned Magistrate even
earlier that investigation is being directed against the person
suspected to be the accused.
19. The scheme of the Cr.P.C. is that an officer-in-charge of a
Police Station has to commence investigation as provided in
Section 156 or 157 of Cr.P.C. on the basis of entry of the First
Information Report, on coming to know of the commission of a
cognizable offence. On completion of investigation and on the
basis of evidence collected he has to form opinion under
Sections 169 or 170 of Cr.P.C., as the case may be, and
forward his report to the concerned Magistrate under Section
173(2) of Cr.P.C. However, even after filing such a report if he
comes into possession of further information or material, he
need not register a fresh FIR, he is empowered to make
further investigation, normally with the leave of the Court, and
where during further investigation he collects further
evidence, oral or documentary, he is obliged to forward the
same with one or more further reports; this is the import of
sub-section (8) of section 173 Cr.P.C.
20.From the above discussion it follows that under the scheme
of the provisions of Sections 154, 155, 156, 157, 162, 169, 170
and 173 of Cr.P.C. only the earliest or the first information in
regard to the commission of a cognizable offence satisfied the
requirements of Section 154 Cr.P.C. Thus there can be no
second FIR and consequently there can be no fresh
investigation on receipt of every subsequent information in
respect of the same cognizable offence or the same occurrence
or incident giving rise to one or more cognizable offences. On
receipt of information about a cognizable offence or an
incident giving rise to a cognizable offence or offences and on
entering the FIR in the station house diary, the officer-in-
charge of a Police Station has to investigate not merely the
cognizable offence reported in the FIR but also other
connected offences found to have been committed in the
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Cr. Appeal (DB) No.150 of 1994(R)
course of the same transaction or the same occurrence and file
one or more reports as provided in Section 173 of the Cr.P.C."
26. The fardbeyan which was recorded at Bariatu police station had
been admitted to the informant--P.W.-3 Rameshwar Sahu, certainly
the second F.I.R. would not have been admissible and it was the very
reason that neither the investigation was conducted on the basis of
the fardbeyan dated 12th May, 1990, rather after conducting the
inquest and postmortem on the basis of the written information
dated 13th May, 1990. The formal F.I.R. was drawn which was
registered on Case Crime No.43 of 1990 with Mandar police station
and thereafter, the investigation was conducted by the I.O., as there
is no illegality or infirmity on this issue in prosecution case.
27. The Hon'ble Apex Court in the case of Vijay Kumar Ghai and
Others vs. State of West Bengal and Others reported in (2022)
7 SCC 124 at paragraph 16 has also held as under :
"16. The legality of the second FIR was extensively discussed
by this Court in T.T. Antony v. State of Kerala [T.T.
Antony v. State of Kerala, (2001) 6 SCC 181 : 2001 SCC (Cri)
1048] . It was held that there can be no second FIR where the
information concerns the same cognizable offence alleged in
the first FIR or the same occurrence or incident which gives
rise to one or more cognizable offences. It was further held
that once an FIR postulated by the provisions of Section
154CrPC has been recorded, any information received after the
commencement of investigation cannot form the basis of a
second FIR as doing so would fail to comport with the scheme
of the CrPC. The Court further held that barring situations in
which a counter-case is filed, a fresh investigation or a second
FIR on the basis of the same or connected cognizable offence
would constitute an "abuse of the statutory power of
investigation" and may be a fit case for the exercise of power
either under Section 482 CrPC or Articles 226/227 of the
Constitution of India."
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Cr. Appeal (DB) No.150 of 1994(R)
28. The Hon'ble Apex Court in the case of Harijan Jivrajbhai
Badhabhai v. State of Gujarat reported in AIR 2016 Supreme
Court 2376 at paragraph 13 has also held as under :
"13. We have considered the rival submissions and have gone
through the testimony of the eyewitnesses and other material
on record. It is true that even before the registration of FIR
the inquest was undertaken and the post-mortem was
conducted. In this case, the assault was made right in the
Courtroom which called for immediate action on part of the
investigators to clear the Courtroom as early as possible. The
Investigating Officer had initially requested the Presiding
Officer to lodge a complaint. Upon his refusal, the
Investigating Officer then had to make enquiries and record
the complaint of PW 30 Bhanji. In the meantime, if inquest
was undertaken and the body was sent for post-mortem, we
do not see any infraction which should entail discarding of the
entire case of prosecution. We also do not find anything wrong
if the first informant soon after the recording of the assailant
corrected himself, as a result of which name of the third
assailant came to be dropped. So long as the version coming
from the eyewitnesses inspires confidence and is well
corroborated by the material on record, any such infraction, in
our view would not demolish the case of the prosecution in
entirety."
29. It is also pertinent to mention here that the fardbeyan
which is denied by the P.W.-3 Rameshwar Sahu was lodged
against the unknown persons in regard to murder of his son
while the written information dated 13th May, 1990 was
given by P.W.-3 against the named accused Suresh Sahu and
Aditya Sahu in regard to committing the murder of his son.
As such even if the written information dated 13th May, 1990
is treated to be second F.I.R., same is not barred being
against the different persons, though in regard to the same
occurrence. More so, this F.I.R. cannot be treated as second
F.I.R., as the first one was never lodged on the basis of the
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Cr. Appeal (DB) No.150 of 1994(R)
fardbeyan dated 12th May, 1990 which the informant had
never given to any police officer.
30. In the case in hand, the inquest and postmortem of the
deceased was conducted. On the basis of the fardbeyan, the
sanha was recorded and thereafter, the formal F.I.R. was
registered at Case Crime No.43 of 1990 on 13th May, 1990
which was marked Ext.1. Thereafter, the investigation was
conducted, as such, prior to lodging of the F.I.R., preparing
the inquest report of the deceased and conducting the
postmortem under such circumstances is not found fatal to
the prosecution case.
31. Learned senior counsel for the appellants also contended
though as per prosecution case, the P.W.-3 Rameshwar Sahu is the
eye-witness, yet Rameshwar Sahu cannot be accepted as an eye-
witness. His conduct after the occurrence is such which makes his
presence doubtful at the place of occurrence. Had he seen the
accused persons assaulting his son, he would not have disclosed the
name of the assailants immediately to the persons, who came later
on at the place of occurrence. He did not disclose the name of the
assailant either to Ashok, Khakandu or Jatan or to any person of the
village. Even he did not disclose the name of the assailants before
lodging F.I.R. to the doctor, who gave treatment to his son.
Therefore, he cannot be treated as eye-witness of the occurrence.
32. As per prosecution case, P.W.-3 Ramehswar Sahu is the eye-
witness of the occurrence. This witness is too old and had weak eye-
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Cr. Appeal (DB) No.150 of 1994(R)
sight as reflected from his statement given before the Court. This
witness has given the written information (Ext.1) and he has proved
the contents of the written information. He was examined before the
trial court and he stated that on 11th May, 1990, he along his son
Gajendra Gupta was coming from the jatra fair after having sold the
sweets in the fair. In the evening, when they were going to house,
amid the way, at 7:30, some assailants obstructed the bicycle of his
son and they dragged his son. After having caught hold of him, they
began to assault him, since, it was time of 07:30 he has lantern in his
hand, same was broken by accused-Suresh Sahu and he was also
pushed. Being too old aged and due to weak eye-sight, he could not
rescue his son and the assailants were assaulting to his son. His son
was crying addressing Suresh Sahu and Aditya Sahu not to kill him.
This witness also stated though Jatan Sahu, Ashok and Khakandu
were also coming with him, and they having seen the assailants fled
away and hid themselves. When the accused persons left the place of
occurrence, Ashok, Khakandu and Jatan came there and with their
help, he brought his injured son out of the pit and took them to the
nearby village. From there his son was brought to his house by thela.
This witness also says that on reaching house, his two daughters put
oil and water to his son and at that time his son disclosed before his
daughter Tapeshwari Kumari (P.W.-1) that Suresh Sahu and Aditya
Sahu had assaulted him and this witness took his son to the hospital
with the help of his relative. On next day i.e., 12th May, 1990, his son
died and after preparing inquest report and postmortem report at 6
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Cr. Appeal (DB) No.150 of 1994(R)
o' clock in the evening, he brought the dead body of his son. His
dead body overnight remained there and on next i.e., 13th May, 1990
after cremating the dead body of his son, he lodged the F.I.R. with
the police station concerned against Suresh Sahu and Aditya Sahu.
33. Learned senior counsel for the appellants also raised the plea
that the conduct of this witness was unnatural, as this witness did
not disclose the name of the assailants. More so, the house of the
accused persons were also adjoining to the house of the informant as
the courtyard of the accused persons and victim were the same. Not
disclosing the name of the assailants to anyone by the informant
Rameshwar Sahu posed a question mark in regard to veracity of the
prosecution version as narrated by the informant.
34. The aforesaid plea raised by the learned senior counsel
for the appellants is not found tenable because in order to
remove this ambiguity, the I.O. had moved an application for
recording the statement of this witness under Section 164
Cr.P.C. before the Magistrate and statement of this witness
was recorded before the Magistrate twice under Section 164
Cr.P.C. The statement of this witness under Section 164
Cr.P.C. has been proved by the P.W.-4 B.K. Singh, the Judicial
Magistrate as Ext.3 and 3/1.
35. P.W.-3 Rameshwar Sahu had given his statement before the
Magistrate and stated that on 11th May, 1990 his son was selling the
sweets in the fair. One unknown person came and demanded sweet
from him and he did not make the payment of the same on which
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Cr. Appeal (DB) No.150 of 1994(R)
some altercation took place and the matter was pacified then and
there. On the very day in the evening when they were coming back
to their house in between 7 to 7:30 of evening, five to six boys came
and obstructed the bicycle of his son and began to assault his son.
He had lantern in his hand and accused-Suresh Sahu had pushed him
and had broken his lantern and his son was crying addressing Suresh
not to kill him. Ashok, Khakandu and Jatan were called later on, who
brought his son out from the pit in injured condition and they took
him to Tetambi village. Ayodhya Babu brought one rickshaw and took
to Tetambi by the same and from there by thela he brought his son
to the house and this statement Ext.3 has been proved by P.W.-4
B.K. Singh which was recorded on 19th May, 1990 and the Ext.3/1
was recorded on 21st May, 1990. In this statement, he stated that
while his first statement was being recorded by the Magistrate he
omitted to disclose the name of accused-Aditya, therefore, he stated
that at the time of occurrence Suresh and Aditya both had assaulted
to his son. His son was crying by addressing the name of both these
assailants not to kill him. Suresh had also broken his lantern and
pushed him, as such, the contents of the written information,
Ext.1 and the statement of this witness given before the
Magistrate under Section 164 Cr.P.C. in regard to the
occurrence as Ext.3 and 3/1 are found in consonance and
assailants are told to be Suresh Sahu and Aditya Sahu.
This witness P.W.-3 Rameshwar Sahu in his statement
also produced a letter which was sent by Suresh and this
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Cr. Appeal (DB) No.150 of 1994(R)
letter has been proved as Ext.2. He stated that the letter was
in handwriting of Suresh, he recognize the same. From perusal
of the said letter Ext.2, it is found that this letter is dated 8th
October, 1990 and at that time, accused-Suresh was in jail in
this very case crime and in the said letter, he exculpating
himself stated that it was Aditya who had killed his son and
he requested his uncle to get him on bail in this case. This
letter was received by informant Rameshwar Sahu on which the
stamp of the post office are also affixed, as such, the informant had
identified the handwriting of Suresh and stated that this is in
handwriting of Suresh and signature as well which was marked Ext.5,
therefore, this letter also corroborated the prosecution story
to this extent that both the brother, Suresh Sahu and Aditya
Sahu were the assailants in this occurrence.
36. So far as the conduct of this witness P.W.-3 Rameshwar Sahu
which is unnatural to the extent that he could not disclose the name
of the assailants to Ashok, Khakhandu and Jatan Sahu or doctor
before lodging the F.I.R. This conduct of P.W.-3 is not found
unnatural, more so, P.W.-3 Tapeshwari Kumari says that when the
injured brother Gajendra was brought at house she applied water
and oil on his head and in conscious condition her brother told that it
was Aditya and Suresh who had assaulted him. At that time all the
persons were present, who came with the thela by which her brother
was brought to the house. The said act on the part of the
informant is not found unnatural, more so, it depends upon
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Cr. Appeal (DB) No.150 of 1994(R)
the social background of the witness, who is stricken with
grief horror or fear. More so, this witness has stated that on
account of the murder of his only son he was little
depressed. He was also stricken with grief horror and on the
sole ground, the whole testimony of this witness cannot be
discarded and it is the duty of the court to separate the grain
from the chaff.
37. The Hon'ble Apex Court in the case of Ramesh Harijan vs.
State of Uttar Pradesh reported in (2012) 5 SCC 777 at
paragraph 29 has held as under :
"29. In Sucha Singh v. State of Punjab [(2003) 7 SCC 643 :
2003 SCC (Cri) 1697 : AIR 2003 SC 3617] (SCC pp. 113-14,
para 51) this Court had taken note of its various earlier
judgments and held that even if major portion of the evidence
is found to be deficient, in case residue is sufficient to prove
guilt of an accused, it is the duty of the court to separate grain
from chaff. Falsity of particular material witness or material
particular would not ruin it from the beginning to end. The
maxim falsus in uno, falsus in omnibus has no application in
India and the witness cannot be branded as a liar. In case this
maxim is applied in all the cases it is to be feared that
administration of criminal justice would come to a dead stop.
Witnesses just cannot help in giving embroidery to a story,
however true in the main. Therefore, it has to be appraised in
each case as to what extent the evidence is worthy of
credence, and merely because in some respects the court
considers the same to be insufficient or unworthy of reliance,
it does not necessarily follow as a matter of law that it must be
disregarded in all respects as well."
38. The Hon'ble Apex Court in the case of State of U.P. vs.
Krishna Master and Ors. reported in AIR 2010 Supreme Court
3071 at paragraph 15, 16 and 17 has held as under :
"15. Before appreciating evidence of the witnesses examined
in the case, it would be instructive to refer to the criteria for
appreciation of oral evidence. While appreciating the evidence
of a witness, the approach must be whether the evidence of
witness read as a whole appears to have a ring of truth. Once
that impression is found, it is undoubtedly necessary for the
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Cr. Appeal (DB) No.150 of 1994(R)
Court to scrutinize the evidence more particularly keeping in
view the deficiencies, drawbacks and infirmities pointed out in
the evidence as a whole and evaluate them to find out whether
it is against the general tenor of the evidence and whether the
earlier evaluation of the evidence is shaken as to render it
unworthy of belief. Minor discrepancies on trivial matters not
touching the core of the case, hyper-technical approach by
taking sentences torn out of context here or there from the
evidence, attaching importance to some technical error
committed by the investigating officer not going to the root of
the matter would not ordinarily permit rejection of the
evidence as a whole.
16. If the court before whom the witness gives evidence had
the opportunity to form the opinion about the general tenor of
the evidence given by the witness, the appellate court which
had not this benefit will have to attach due weight to the
appreciation of evidence by the Trial Court and unless the
reasons are weighty and formidable, it would not be proper for
the appellate court to reject the evidence on the ground of
variations or infirmities in the matter of trivial details. Minor
omissions in the police statements are never considered to be
fatal. The statements given by the witnesses before the Police
are meant to be brief statements and could not take place of
evidence in the court. Small/trivial omissions would not justify
a finding by court that the witnesses concerned are liars. The
prosecution evidence may suffer from inconsistencies here and
discrepancies there, but that is a short-coming from which no
criminal case is free. The main thing to be seen is whether
those inconsistencies go to the root of the matter or pertain to
insignificant aspects thereof. In the former case, the defence
may be justified in seeking advantage of incongruities
obtaining in the evidence. In the latter, however, no such
benefit may be available to it.
17. In the deposition of witnesses, there are always normal
discrepancies, howsoever, honest and truthful they may be.
These discrepancies are due to normal errors of observation,
normal errors of memory due to lapse of time, due to mental
disposition, shock and horror at the time of occurrence and
threat to the life. It is not unoften that improvements in earlier
version are made at the trial in order to give a boost to the
prosecution case albeit foolishly. Therefore, it is the duty of
the Court to separate falsehood from the truth. In sifting the
evidence, the Court has to attempt to separate the chaff from
the grains in every case and this attempt cannot be abandoned
on the ground that the case is baffling unless the evidence is
really so confusing or conflicting that the process cannot
reasonably be carried out. In the light of these principles, this
Court will have to determine whether the evidence of eye-
witnesses examined in this case proves the prosecution case."
39. The Hon'ble Apex Court in the case of Suresh Yadav @
Guddu vs. The State of Chhattisgarh reported in 2022 Livelaw
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Cr. Appeal (DB) No.150 of 1994(R)
SC 217 has held that in criminal trial the evidence of an eye-witness
cannot be discarded only for the reason that he allegedly did not
raise any alarm or did not try to intervene when the deceased was
being ferociously assaulted and stabbed.
40. The Hon'ble Apex Court in the case of Neelam Bahal and
Another vs. State of Uttarakhand reported in (2010) 2 SCC
(Cri.) 1025 at paragraphs 8 and 9 has held as under :
"8. We have considered the arguments advanced by the
learned counsel for the parties. We find absolutely no reason
to doubt the statements of PWs 2 and 4 with regard to the
incident. PW 2 was an independent witness inasmuch that he
had been employed with the complainant party as well as the
accused party at various times. It also appears that he was the
focus of the quarrel and the motive that had precipitated the
incident, as both the parties were pushing for employing him
which had led to the unpleasant situation between them.
Likewise, we find it difficult to disbelieve the statement of PW
3, the injured victim himself as he has given a graphic
description as to what had happened.
9. It is true, as has been contended by Ms Jaiswal, that there
are some differences between the statements of these two
witnesses but they are bound to occur with the evidence being
recorded after about five years. It must also be borne in mind
that a parrot-like deposition after a long lapse of time smacks
of tutoring and some differences in fact advance the credibility
of the witnesses."
41. The Hon'ble Apex Court in the case of Prem Prakash @ Lillu
and Another vs. State of Haryana reported in (2011) 3 SCC
(Cri.) 463 at paragraph 19 has held as under :
"19. The evidence, essentially, must be viewed collectively.
The statement of a witness must be read as a whole. Reliance
on a mere line in the statement of the witness, out of context,
would not serve the ends of justice and the conclusion of the
court based on such appreciation of evidence could be
faulted."
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42. The Hon'ble Apex Court in the case of Tara Singh and others
v. The State of Punjab reported in AIR 1991 Supreme Court 63
at paragraph 4 has held as under :
"4.It is well settled that the delay in giving the FIR by itself
cannot be a ground to doubt the prosecution case. Knowing
the Indian conditions as they are we cannot expect these
villagers to rush to the police station immediately after the
occurrence. Human nature as it is, the kith and kin who have
witnessed the occurrence cannot be expected to act
mechanically with all the promptitude in giving the report of
the police. At times being grief-sticken because of the calamity
it may not immediately occur to them that they should give a
report. After all it is but natural in these circumstances for
them to take some time to go to the police sation for giving
the report. Of course the Supreme Court as well as the High
Courts have pointed out that in cases arising out of acute
factions there is a tendency to implicate persons belonging to
the opposite faction falsely. In order to avert the danger of
convicting such innocent persons the courts are cautioned to
scrutinise the evidence of such interested witnesses with
greater care and caution and separate grain from the chaff
after sujecting the evidence to a closer scrutiny and in doing
so the contents of the FIR also will have to be scrutinised
carefully. However, unless there are indications of fabrication,
the Court cannot reject the prosecution version as given in the
FIR and later substantiated by the evidence merely on the
ground of delay. These are all matters for appreciation and
much depends on the facts and circumstances of each case. In
the instant case there are three eye-witnesses. They have
consistently deposed that the two appellants inflicted injuries
on the neck with kirpans, the medical evidence amply supports
the same. In these circumstances we are unable to agree with
the learned Counsel that the entire case should be thrown out
on the mere ground there was some delay in the FIR
SC66 reaching the local Magistrate. In the report, given by
P.W. 2 to the police all the necessary details are mentioned. It
is particularly mentioned that these two appellants inflicted
injuries with kirpans on the neck of the deceased. This report
according to the prosecution, was given at about 8.45 p.m. and
on the basis of the report the Investigating Officer prepared
copies of the FIR and despatched the same to all the
concerned officers including the local Magistrate who received
the same at about 2.45 a.m. Therefore we are unable to say
that there was inordinate and unexplained delay. There is no
ground to doubt the presence of the eye witnesses at the
scene of occurrence. We have perused their evidence and they
have withstood the cross examination. There are no material
contradictions or omissions which in any manner throw a
doubt on their varasity. The High Court by way of an abundant
caution gave the benefit of doubt to the other three accused
since the allegation against them is an omnibus one. Though
we are unable to fully agree with this finding but since there is
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no appeal against their acquittal we need not further proceed
to consider the legality or propriety of the findings of the High
Court in acquitting them. So far as the appellants are
concerned, the evidence against them is cogent and
convincing and specific overt acts are attributed to them as
mentioned above. Therefore we see absolutely no grounds to
interfere. The appeal is, therefore, dismissed."
43. The learned senior counsel for the appellants also contended
that in this case, the I.O. was not examined and same is fatal to the
prosecution case. More so, the very first fard beyan was also
suppressed and the F.I.R. was not lodged. All these circumstances
could have been explained by the I.O. and his non-examination is
fatal to the prosecution case.
44. Admittedly, the I.O. was not examined on behalf of the
prosecution in this case. Non-examination of the I.O. is not found
fatal keeping in view the facts and circumstances of the case. So far
as the place of occurrence is concerned, there is no dispute in regard
to the place of occurrence. The only dispute is raised on the issue
that the assailants were the unknown persons and name of the
appellants were mentioned by the informant on account of animosity.
45. In this case whether the appellants were falsely implicated in
this case on account of animosity is to be decided in view of the
testimony of the informant and other corroborating evidence
to that effect. P.W.-3 Rameshwar Sahu and other witnesses
who were examined before the trial court in regard to the
fact that there is no contradiction in their testimony given
before the court and their statements recorded by the I.O.
under Section 161 Cr.P.C. as well as the statement of this
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witness P.W.-3 Ramehswar Sahu which was recorded under
Section 164 Cr.P.C. before the Magistrate and the same are
also proved by P.W.-4 B.K. Singh, Judicial Magistrate.
Certainly, the presence of the I.O. is necessary in order
to show the contradiction in the testimony of the witnesses,
if the same is brought out during cross-examination of the
witnesses or if there is recovery of any article, the
examination of the I.O. was necessary. Keeping in view the
facts and circumstances and also the evidence on record, the
non-examination of the I.O. is not found fatal to the
prosecution case.
46. The Hon'ble Apex Court in the case of Bihari Rai vs. The
State of Bihari (now Jharkhand) reported in (2008) 15 SCC
778 at paragraph 15 has held as under :
"15. So far as the non-examination of one of the IOs is
concerned, it is to be noted that the officer in question had
only conducted the inquest. The inquest report was exhibited
without any objection and there was no challenge to the
correctness of the report. That being so, non-examination of
the officer in question does not in any way corrode the
credibility of the prosecution version."
47. In corroboration of the testimony of this eye-witness,
there is oral dying declaration of the deceased. As per
prosecution case, the injured son of the informant Rameshwar Sahu
soon on the very day of occurrence was taken to village Tetambi by a
rickshaw and from there he was brought by thela at his house in the
evening. Thereafter, his two daughters applied water and oil on the
head of his injured son. During that time, the injured son of the
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Cr. Appeal (DB) No.150 of 1994(R)
informant, Gajendra Prasad Gupta was in conscious
condition and he disclosed that it was Suresh Sahu and
Aditya Sahu who had assaulted him. This statement was
made by injured Gajendra Prasad Gupta before his sister,
P.W.-1 Tapeshwari Kumari and also in presence of another
sister P.W.-2 Saroj Kumari.
P.W.-1 Tapeshwari Kumari in her examination-in-chief says
that on 11th May, 1990 at 08:30 p.m. she was at her house, her
younger sister Saroj Kumari was with her and Manohar Sahu and
Raju came and told that her brother had been assaulted. Thereafter,
Khakhandu Sahu, Ashok Kumar, Sukra Pandit, Ekka Pandit, her father
Rameshwar Sahu and her brother Gajendra Sahu came to house.
Gajendra Sahu was brought by a wooden rickshaw and her brother
was in injured condition. She saw injury on his forehead and she
applied oil and water on his head. Her brother told that Suresh and
Aditya had assaulted him, thereafter, her brother was taken to the
hospital. This witness also stated that there were three to four
injuries on the head of her brother and blood was also oozing.
Suresh Sahu and Aditya Sahu are her cousin brother. In CCL, the
land was acquired and in lieu thereof, the accused persons were
given service. When her brother told that it was Suresh and
Aditya who assaulted him at that time, all those persons
were present who came with the thela.
P.W.-2 Saroj Kumari also corroborated this dying
declaration. This witness says that on 11th May, 1990, it was 08:30 of
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Cr. Appeal (DB) No.150 of 1994(R)
night Manohar Sahu and Dilip Kumar came to her house. They told
that her brother Gajendra has been assaulted, thereafter, her brother
was also brought at the house. Ashok Kumar, Khakhandu Saw, Jatan
Saw had come with her father Rameshwar Saw and brother
Gajendra. Her brother was in injured condition and there were three
injuries on his forehead. The oil and water was applied by her sister
on his head and on being asked by her sister, her brother told
that it was Suresh and Aditya, who had assaulted him. This
witness also identified both the accused Suresh and Aditya present in
the dock. This witness also stated that at that time, the eyes of her
brother were also opened and he was speaking. This witness also
stated that blood was also on the clothes and bedsheet on which her
brother was laid at her house.
48. From the testimony of P.W.-1 Tapeshwari Kumari and
P.W.-2 Saroj Kumari, it is found that the deceased-Gajendra
Prasad while in injured condition was brought at his house.
They applied oil and water on his head. Her brother told, on
being asked by them, that Suresh and Aditya assaulted him,
therefore, this oral declaration made by the deceased while
in injured condition on the very date of occurrence in the
night, who subsequently was taken to the hospital and on
next day died becomes admissible under Section 32 of the
Evidence Act as a dying declaration.
So far as the mental state of the injured while making
declaration is concerned, both these witnesses P.W.-1 and P.W.-
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Cr. Appeal (DB) No.150 of 1994(R)
2 says that at that time their brother was in conscious
condition. This statement is also corroborated with the
testimony of the doctor. The injured died on the very next day in
the hospital. The postmortem report of the deceased is proved by
P.W.-5 Dr. Ajit Kumar Chaudhary. This witness has also proved
that there were two ante mortem abrasions, three bruises
and three lacerated wounds on the body of the deceased and
cause of death was shock and hemorrhage as a result of ante
mortem injuries caused by hard and blunt object may be the
lathi and hockey. This witness was cross-examined and he stated
that despite three lacerated wound being on the head and scalp, the
injuries which the deceased had sustained he might be in
conscious condition. Though, this doctor opined that he cannot
say that how long he can be in conscious condition but he stated
that the patient would in like nature of injury would be in
conscious condition. As such, the dying declaration made by the
deceased while in injured condition in regard to cause of death which
was caused by the assailants Suresh and Aditya by inflicting injury is
admissible as dying declaration under Section 32 of the Evidence Act
which is proved from the statement of P.W.-1 and P.W.-2.
49. The Hon'ble Apex Court in the case of The State of Uttar
Pradesh Versus Subhash @ Pappu reported in 2022 Livelaw SC
336 at paragraph 6 has held as under :
"6. At the outset, it is required to be noted that as per the
dying declaration recorded by Assistant Divisional Transport
Officer on 05.12.1980, six/seven persons attacked the
deceased. Even in the F.I.R., lodged by Hari Singh (PW-5), it
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Cr. Appeal (DB) No.150 of 1994(R)
was specifically mentioned that six persons attacked his
brother Bengali, who assaulted him with hockey stick and
knife. It is true that Hari Singh (PW-5) - informant turned
hostile. However, at the same time, we see no reason to doubt
the dying declaration recorded by Assistant Divisional
Transport Officer on 05.12.1980. The submission on behalf of
the accused relying upon the decision of this Court in the case
of Laxman (supra) that the day on which the dying declaration
was recorded, there was no extreme emergency and/or his
condition was not so serious or there was any danger to his life
and therefore there was no reason and/or cause to record the
dying declaration and therefore the dying declaration is not
believable, has no substance. In the case of Laxman (supra),
which has been relied upon by learned counsel appearing on
behalf of the accused there is no absolute proposition of law
laid down by this Court that, in a case when at the time when
the dying declaration was recorded, there was no emergency
and/or any danger to the life, the dying declaration should be
discarded as a whole. In the present case, as the deceased was
having a stab injury by a knife, there was a possibility of
danger to his life and therefore, by way of prudence, if the
dying declaration was recorded on 05.12.1980, there is no
reason to doubt the dying declaration, which was recorded by
Assistant Divisional Transport Officer. Therefore, in our view
the Trial Court has rightly relied upon and/or believed the
dying declaration recorded by Assistant Divisional Transport
Officer on 05.12.1980. "
50. The Hon'ble Apex Court in the case of Laxman vs. State of
Maharashtra reported in (2002) 6 SCC 710 at paragraph 4 has
held as under :
"4. Bearing in mind the aforesaid principle, let us now examine
the two decisions of the Court which persuaded the Bench to
make the reference to the Constitution Bench.
In Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 :
1999 SCC (Cri) 1361] the dying declaration in question had
been recorded by a Judicial Magistrate and the Magistrate had
made a note that on the basis of answers elicited from the
declarant to the questions put he was satisfied that the
deceased is in a fit disposing state of mind to make a
declaration. The doctor had appended a certificate to the
effect that the patient was conscious while recording the
statement, yet the Court came to the conclusion that it would
not be safe to accept the dying declaration as true and genuine
and was made when the injured was in a fit state of mind since
the certificate of the doctor was only to the effect that the
patient is conscious while recording the statement. Apart from
the aforesaid conclusion in law the Court had also found
serious lacunae and ultimately did not accept the dying
declaration recorded by the Magistrate. In the latter decision
of this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9
SCC 562 : 2000 SCC (Cri) 432] it was held that the ultimate
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Cr. Appeal (DB) No.150 of 1994(R)
test is whether the dying declaration can be held to be a
truthful one and voluntarily given. It was further held that
before recording the declaration the officer concerned must
find that the declarant was in a fit condition to make the
statement in question. The Court relied upon the earlier
decision in Ravi Chander v. State of Punjab [(1998) 9 SCC 303
: 1998 SCC (Cri) 1004] wherein it had been observed that for
not examining by the doctor the dying declaration recorded by
the Executive Magistrate and the dying declaration orally
made need not be doubted. The Magistrate being a
disinterested witness and a responsible officer and there being
no circumstances or material to suspect that the Magistrate
had any animus against the accused or was in any way
interested for fabricating a dying declaration, question of
doubt on the declaration, recorded by the Magistrate does not
arise."
51. The Hon'ble Apex Court in the case of Surajdeo Oza and
others v. State of Bihar reported in AIR 1979 Supreme Court
1505 at paragraphs 2 and 3 has held as under :
"2. The central evidence in this case consists of a dying
declaration made by the deceased before the Sub-Inspector
which has been treated as F. I. R. The dying declaration was
made within an hour of the assault when the deceased was
fully conscious. Both the Courts below have relied upon the
dying declaration and have held that the dying declaration is
true. All the appellants are named in the dying declaration and
even the witnesses Nos. 1 and 3 have been mentioned clearly
as having seen the occurrence, in the said dying declaration.
These witnesses have also been believed by the Courts below.
3. Mr. Mookherjee appearing in support of the appeal
submitted that having regard to the large number of injuries
sustained by the deceased, he would not be in a position to
speak or give dying declaration. We have ourselves examined
the injuries and we find that there was no injury which may
have affected the brain or the heart and the only serious
injuries are on the abdomen which will not make the deceased
unconscious immediately. Moreover, the deceased has also
given a short statement which is a proof of the manner in
which the deceased was assaulted. The shortness of the
statement itself, appears to be the guarantee of its truth. Even
the Doctors who examined the deceased do not say, that
having regard to the injuries, the deceased would have
become unconscious immediately. In this view of the matter
we are fully satisfied about the truth of the dying declaration."
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52. The Hon'ble Apex Court in the case of Nanahau Ram and
another v. State of M.P reported in AIR 1988 Supreme Court
912 at paragraph 10 has held as under :
"10. This finding arrived at on an appreciation of evidences is,
in our opinion, quite in accordance with law. Moreover as has
been stated hereinbefore that PW-8 and PW-9, the wife and
son of the deceased stated categorically in their depositions
that Dwarkaprasad was in his full senses while making the
statements which were recorded in writing by PW-2,
Lavkushprasad. In the face of the evidence of the witnesses
this submission is not sustainable. As regards the delay in
recording the statement of PW-2 does not necessarily make
the evidence untrustworthy. In the instant case, PW-2 was
examined by the Investigating Officer on July 16, 1976. There
is no doubt that the witness was present in the night of the
dacoity and he scribed the statement made by the deceased
who put his thumb impression on it and it was signed by PWs-
3 and 5. There is also reference to the statement made by the
deceased in the F.I.R. lodged by PW-5 on July 15,1976. In
these circumstances, the mere delay in recording the
statement of PW-2 which is undoubtedly a lapse on the part of
the Investigating Officer will not render outright rejection of
these prosecution evidences. It has already been observed by
the Additional Session Judge that the conduct of the
Investigating Officer was not fair as he did not send the
articles seized for chemical examination or for ballistic
examination. It is apparent from the evidence of PW-6, Dr. A.
R. Singh that the deceased and another stranger got gun shot
wounds which caused their deaths. It has been held by the
courts below that non-examination of the gun by the ballistic
expert cannot negative the evidence of the prosecution
witnesses that the deceased Dwarka Prasad died of gun shot
injuries. The High Court on a consideration of the evidences
have found that the identity of the two appellants as being
amongst the dacoits has been amply established by the
evidences of witnesses particularly of widow and son of the
deceased and this has been reinforced by the oral and written
dying declaration of the deceased. It has also been held that
even excluding the written dying declaration of PW-2 the
evidences adduced on behalf of the prosecution clearly
established the prosecution case that the deceased made an
oral dying declaration implicating the two accused appellants
as the dacoits recognised by him."
53. The Hon'ble Apex Court in the case of Rafique alias Rauf
and Others vs. State of Uttar Pradesh reported in (2013) 12
SCC 121 at paragraph 19 to 26 has held has under :
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Cr. Appeal (DB) No.150 of 1994(R)
"19. In this context when we make reference to the statutory
provisions concerning the extent of reliance that can be placed
upon the dying declaration and also the implication of Section
162(2) CrPC vis-à-vis Section 32(1) of the Evidence Act, 1872,
we feel that it will be appropriate to make a reference to the
decision of this Court in Khushal Rao v. State of
Bombay [Khushal Rao v. State of Bombay, AIR 1958 SC 22 :
1958 Cri LJ 106] . Sinha, J. speaking for the Bench after
making further reference to a Full Bench decision [Guruswami
Tevar, In re, ILR 1940 Mad 158 : AIR 1940 Mad 196] of the
High Court of Madras headed by Sir Lionel Leach, C.J.; a
decision [Chandrasekera v. R., 1937 AC 220 (PC)] of the
Judicial Committee of the Privy Council and Phipson on
Evidence, 9th Edn., formulated certain principles to be applied
to place any reliance upon such statements. We feel that the
substance of the principles stated in the Full Bench decision
and the Judicial Committee of the Privy Council and the author
Phipson's viewpoint on accepting a statement as dying
declaration can also be noted in order to understand the
principles ultimately laid down by this Court in para 16.
20. The Full Bench of the Madras High Court in Guruswami
Tevar [Guruswami Tevar, In re, ILR 1940 Mad 158 : AIR 1940
Mad 196] ILR at p. 170 (AIR at p. 200) in its unanimous
opinion stated that no hard-and-fast rule can be laid down as
to when a dying declaration should be accepted, except stating
that each case must be decided in the light of its own facts and
other circumstances. What all the court has to ultimately
conclude is whether the court is convinced of the truthfulness
of the statement, notwithstanding that there was no
corroboration in the true sense. The thrust was to the position
that the court must be fully convinced of the truth of the
statement and that it should not give any scope for suspicion
as to its credibility. This Court noted that the High Court of
Patna and Nagpur also expressed the same view in the
decisions in Mohd. Arif v. Emperor [AIR 1941 Pat 409]
and Gulabrao Krishnajee v. Emperor [AIR 1945 Nag 153] .
21. The Judicial Committee of the Privy Council while dealing
with a case, which went from Ceylon, which was based on an
analogous provision to Section 32(1) of the Evidence Act, 1872
took the view that apart from the evidence of the deceased the
other evidence was not sufficient to warrant a conviction. It
was, however, held that in that case when the statement of
the deceased was received and believed as it evidently was by
the jury it was clear and unmistakable in its effect and
thereby, the conviction was fully justified and was inevitable.
The Judicial Committee noted that the factum of a murderous
attack, though resulted in the cutting of the throat and the
victim was not in a position to speak but yet by mere signs she
was able to convey what she intended to speak out, and the
said evidence was brought within the four corners of the
concept of dying declaration, which formed the sole basis
ultimately for the Court to convict the accused, which was also
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Cr. Appeal (DB) No.150 of 1994(R)
confirmed by the Supreme Court of Ceylon, as well as by the
Judicial Committee of the Privy Council.
22. The author Phipson in his 9th Edn., of the book
on Evidence made the following observations:
"... The deceased then signed a statement implicating the
prisoner, but which was not elicited by question and answer,
and died on March 20. It was objected that being begun in that
form, it was inadmissible : Held (1) the questions and answers
as to his state of mind were no part of the dying declaration;
(2) that even if they were, they only affected its weight, not its
admissibility; and (3) that the declaration was sufficient,
without other evidence, for
conviction, R. v. Fitzpatrick [(1910) 46 Ir LT 173] ."
23. After considering the above legal principles, this Court has
set down the following six tests to be applied for relying upon
a material statement as a dying declaration : (Kushal Rao
case [Khushal Rao v. State of Bombay, AIR 1958 SC 22 : 1958
Cri LJ 106] , AIR pp. 28-29, para 16)
"16. On a review of the relevant provisions of the Evidence Act
and of the decided cases in the different High Courts in India
and in this Court, we have come to the conclusion, in
agreement with the opinion of the Full Bench [Guruswami
Tevar, In re, ILR 1940 Mad 158 : AIR 1940 Mad 196] of the
Madras High Court, aforesaid, (1) that it cannot be laid down
as an absolute rule of law that a dying declaration cannot form
the sole basis of conviction unless it is corroborated; (2) that
each case must be determined on its own facts keeping in view
the circumstances in which the dying declaration was made;
(3) that it cannot be laid down as a general proposition that a
dying declaration is a weaker kind of evidence than other
pieces of evidence; (4) that a dying declaration stands on the
same footing as another piece of evidence and has to be
judged in the light of surrounding circumstances and with
reference to the principles governing the weighing of
evidence; (5) that a dying declaration which has been
recorded by a competent Magistrate in the proper manner,
that is to say, in the form of questions and answers, and, as far
as practicable, in the words of the maker of the declaration,
stands on a much higher footing than a dying declaration
which depends upon oral testimony which may suffer from all
the infirmities of human memory and human character; and
(6) that in order to test the reliability of a dying declaration,
the Court has to keep in view the circumstances like the
opportunity of the dying man for observation, for example,
whether there was sufficient light if the crime was committed
at night; whether the capacity of the man to remember the
facts stated had not been impaired at the time he was making
the statement, by circumstances beyond his control; that the
statement has been consistent throughout if he had several
opportunities of making a dying declaration apart from the
official record of it; and that the statement had been made at
the earliest opportunity and was not the result of tutoring by
interested parties." (emphasis supplied)
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24. We also wish to add that as on date, there is no statutory
prescription as to in what manner or the procedure to be
followed for recording a dying declaration to fall within the
four corners of Section 32(1) of the Evidence Act. The presence
of the Magistrate; certification of the doctor as to the mental
or the physical status of the person making the declaration,
were all developed by judicial pronouncements. As has been
repeatedly stated in various decisions, it will have to be found
out whether in the facts and circumstances of any case the
reliance placed upon by the prosecution on a statement
alleged to have been made by the deceased prior to his death
can be accepted as a dying declaration, will depend upon the
facts and circumstances that existed at the time of making the
statement. In that case it would mainly depend upon the date
and time vis-à-vis the occurrence when the statement was
alleged to have been made, the place at which it was made,
the person to whom the said statement was made, the
sequence of events, which led the person concerned to make
the statement, the physical and mental condition of the person
who made the statement, the cogency with which any such
statement was made, the attending circumstances, whether
throw any suspicion as to the factum of the statement said to
have been made or any other factor existing in order to
contradict the statement said to have been made as claimed
by the prosecution, the nexus of the person who made the
statement to the alleged crime and the parties involved in the
crime, the circumstance which made the person to come
forward with the statement and last but not the least, whether
the said statement fully supports the case of the prosecution.
25. In this context, we can also make a reference to a decision
of this Court in Cherlopalli Cheliminabi Saheb v. State of
A.P. [(2003) 2 SCC 571 : 2003 SCC (Cri) 659] , where it was
held that it was not absolutely mandatory that in every case a
dying declaration should be recorded only by a Magistrate. The
said position was reiterated in Dhan Singh v. State of
Haryana [(2010) 12 SCC 277 : (2011) 1 SCC (Cri) 352] wherein
it was held that neither Section 32 of the Evidence Act nor
Section 162(2) CrPC, mandate that the dying declaration has
to be recorded by a designated or particular person and that it
was only by virtue of the development of law and the
guidelines settled by the judicial pronouncements that it is
normally accepted that such declaration would be recorded by
a Magistrate or by a doctor to eliminate the chances of any
doubt or false implication by the prosecution in the course of
investigation.
26. In a recent decision of this Court in Sri Bhagwan v. State of
U.P. [(2013) 12 SCC 137 : (2012) 11 Scale 734] , to which one
of us was a party, the Court dealt with more or less an
identical situation and held as under in paras 21 and 22:
"21. As far as the implication of Section 162(2) CrPC is
concerned, as a proposition of law, unlike the excepted
circumstances under which Section 161 statement could be
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Cr. Appeal (DB) No.150 of 1994(R)
relied upon, as rightly contended by the learned Senior
Counsel for the respondent, once the said statement though
recorded under Section 161 CrPC assumes the character of
dying declaration falling within the four corners of Section
32(1) of Evidence Act, then whatever credence that would
apply to a declaration governed by Section 32(1) should
automatically deem to apply in all force to such a statement
though was once recorded under Section 161 CrPC. The above
statement of law would result in a position that a purported
recorded statement under Section 161 of a victim having
regard to the subsequent event of the death of the person
making the statement who was a victim would enable the
prosecuting authority to rely upon the said statement having
regard to the nature and content of the said statement as one
of dying declaration as deeming it and falling under Section
32(1) of the Evidence Act and thereby commend all the
credence that would be applicable to a dying declaration
recorded and claimed as such.
22. Keeping the above principle in mind, it can be stated
without any scope for contradiction that when we examine the
claim made on the statement recorded by PW 4 of the
deceased by applying Section 162(2), we have no hesitation in
holding that the said statement as relied upon by the trial
court as an acceptable dying declaration in all force was
perfectly justified. We say so because no other conflicting
circumstance was either pointed out or demonstrated before
the trial Court or the High Court or before us in order to
exclude the said document from being relied upon as a dying
declaration of the deceased. We reiterate that having regard to
the manner in which the said statement was recorded at the
time when the crime was registered originally under Section
326 IPC within the shortest time possible within which it could
be recorded by PW 4 in order to provide proper medical
treatment to the deceased by sending him to the hospital, with
no other intention pointed out at the instance of the appellant
to discredit contents of the said statement, we hold that the
reliance placed upon the said statement as the dying
declaration of the deceased was perfectly justified. Having
regard to our above conclusion, the said submission of the
learned counsel for the appellant also stands rejected."
54. On behalf of the appellants, it is also contended that they have
been falsely implicated in this case on account of animosity. Indeed
the appellants were not present at the place of occurrence and they
were on duty at their employer's office, as such, on account of plea
of alibi, the appellants cannot be convicted. The plea of alibi has
been proved by the evidence on the touchstone of preponderance of
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Cr. Appeal (DB) No.150 of 1994(R)
probabilities. Moreover, the other witnesses were also examined on
behalf of the defence who proved that the accused persons were not
involved in commission of the alleged offence.
55. D.W.-1 Jatan Sahu in his examination-in-chief stated that he
did not see Suresh and Aditya in the fair and village on the date of
occurrence. The altercation took place between the deceased and
Adivasi persons. He heard this fact from his brother. He also stated
that Gajendra was in unconscious condition after assault. The father
of the deceased told him that Adivasi person has assaulted his
deceased son. This witness is the relative of accused persons and the
informant/victim side.
56. D.W.-2 Khakhndu Saw stated that he was brought by the
accused persons to give the evidence in the court and whatever was
told by them he gave the statement in the court.
57. D.W.-3 Ashok Kumar stated that he knew in regard to the
altercation of the deceased with Adivasi after the fair was over. He
came to know in regard to the altercation of the deceased with
Adivasi persons after the fair was over. Gajendra was in unconscious
condition. On that day neither he had seen Ashok and Aditya in the
village nor in the fair. He did not see the occurrence of assault.
58. D.W.-4 Jagarnath Prasad Pandit is the Finance Manager in
Sirka Colliery. He stated that Suresh Prasad Sahu was posted as Area
Account Office in CCL. He further stated that in column 7 of the
attendance register, the name of Suresh Sahu is shown. The
signature of Suresh Sahu are on the same till 15th May, 1990. He was
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Cr. Appeal (DB) No.150 of 1994(R)
absent on 16th, 17th, 18th and 19th May, 1990. He brought this
attendance register on the direction of defense counsel from his
office. Suresh Sahu was present at the office from 6.30 p.m. to 9.30
p.m. in the night. In paragraph 3, this witness also stated that
the employees may leave office after putting signatures in
the attendance register. His signature on attendance register
does not tally with his signature on OD register on the date
of 11th May, 1990. Suresh Sahu put his full signature on
attendance register. He put his initials on OD register.
59. D.W.-5 Prabhakar Jha is the Area Finance Manager,
Barkakana CCL Area. He stated that the signature of Aditya Sahu
from 2nd May, 1990 to 13th May, 1990 and 25th May, 1990 to 26th
May, 1990 is Ext. A/1. He further stated that Aditya Sahu did
overtime duty from 6 p.m. to 9 p.m. He proved his initial as Ext.A/2.
This witness also says that he cannot say what Aditya did on 11th
May, 1990 as he was not present. Signature of Suresh Sahu
dated 11th and 12th May, 1990 are over written and different
to signature of other dates which was marked Ext.A/4.
60. D.W.-6 Ram Lakhan Mandal is also Area Finance Officer,
Argada, CCL. This witness proved the signature of Suresh Sahu and
stated that signatures were not put by him in his presence.
61. From the testimony of defence witness D.W.-1, D.W.-2,
D.W.-3, though all the three have stated that on the very day of
occurrence in the fair, the altercation took place with some Adivasi
person but these witnesses did not see the occurrence of
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assaulting to the deceased son of the informant. All the three
witnesses as per testimony of P.W.-3 Rameshwar Sahu stated that
they were coming with the informant and his son Gajendra Prasad
Gupta from the fair to their house, amid the way, the occurrence
took place. At that time, Khakhndu Saw, Ashok Saw and Jatan
Saw had fled away. They had not seen the occurrence and
they came later on and with the help of these persons, the
P.W.-3 Rameshwar Sahu got the injured son out of the pit.
From the testimony of these three witnesses, it cannot be accepted
that the deceases son of the informant while in injured condition was
unconscious. More so, P.W.-1 Tapeshwari Kumari, P.W.-2 Saroj
Kumari who are real sisters of the deceased while putting water
and oil to their injured brother, her brother was in conscious
condition and he told that it was Suresh Sahu and Aditya
Sahu, who had assaulted him. The doctor P.W.-5 also opined
that in like nature of injury which the deceased had
sustained, the patient would be in conscious condition.
Therefore, on the testimony of these defence witness D.W.-
1, D.W.-2 and D.W.-3, it cannot be accepted that the
deceased while in injured condition was unconscious and no
advantage can be given of their testimony to the appellant-
accused.
So far as the testimony of D.W.-4 Jagarnath Prasad Pandit,
D.W.-5 Prabhakar Jha and D.W.-6 Ram Lakhan Mandal are
concerned they are the office bearers of CCL. They have proved the
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attendance register. They stated that Suresh Sahu and Aditya Sahu
had put their signature in overtime which was 6:30 to 9:30 pm
respectively in their office. Both these witnesses fairly admitted that
the signature in the attendance register and OD register differ.
There was also overwriting on the signature on the date of
occurrence of Suresh Sahu. This witness also fairly admitted
that even after putting the signature on the attendance
register, the employees could leave the office. Therefore,
merely on showing the signature in the attendance register which
more so is also doubtful, it cannot accepted that both the accused
persons at the time of occurrence were not present at the place of
occurrence or they were present at the office. The accused
persons had failed to prove this possibility that at the time of
occurrence, they could not reach leaving their office to the
place of occurrence. The plea of alibi is not found proved
even on the touchstone of preponderance of probabilities.
62. The Hon'ble Apex Court in the case of Munshi Prasad and
Others vs. State of Bihar reported in (2002) 1 SCC 351 at
paragraph 2 has held as under :
2. The judgment under appeal stands criticised on three major
counts : the first of the three counts relates to the plea of alibi.
The word "alibi", a Latin expression means and implies in
common acceptation "elsewhere" : it is a defence based on the
physical impossibility of participation in a crime by an accused
in placing the latter in a location other than the scene of crime
at the relevant time, shortly put, the presence of the accused
elsewhere when an offence was committed. This Court in Dudh
Nath Pandey v. State of U.P. [(1981) 2 SCC 166 : 1981 SCC
(Cri) 379 : AIR 1981 SC 911] has the following to state in
regard to the plea of alibi : (SCC p. 173, para 19)
"The plea of alibi postulates the physical impossibility of the
presence of the accused at the scene of offence by reason of
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his presence at another place. The plea can therefore succeed
only if it is shown that the accused was so far away at the
relevant time that he could not be present at the place where
the crime was committed...."
Distance thus would be a material factor in the matter of
acceptability of the plea of alibi. Interestingly, this plea as
raised by Mr Venkataramani, learned Senior Counsel appearing
in support of the appeal has been by reason of specific
evidence as tendered before the court by the defence
witnesses. On assumption of the factum of the evidence being
otherwise truthful, there appears to be some difficulty,
however, in the matter of acceptance of submission of Mr
Venkataramani. The evidence on record as tendered by Raj
Narain Prasad (Defence Witness 2) was to the following effect:
"2. On 27-6-1980 at 12 p.m. a Panchayat was held in the
garden of Yogendra Prasad. I went to the Panchayat and told
the Head that I came to say that a murder was committed in
Nakka Tola. At that time it was not known to me as to who is
murdered.
3. At that time there were Bose Sahib, Manglue Sahani, Dasai
Sahni, Naga Mehto, Hira Sahni, Multan Mian and Raghnath
Mehto etc. in the Panchayat.
4. When I reported then they became worried and all of them
left with Head Mukhiaji. I also went.
5. On the western side of the road, 25-30 yards towards east
there was a dead body in the sugarcane field. There I also
asked the people but it was not known as to who had
killed. The dead body was at four-five hundred yards from this
place of Panchayat, we stayed there near the dead body till 5-
5.30 o'clock. Jamadar Sahib came there after we reached
there."
(emphasis supplied)
63. The Hon'ble Apex Court in the case of Jayantibhai
Bhenkaarbhai v. State of Gujarat reported in AIR 2002
Supreme Court 3569 at paragraph 19 has held as under :
"19.The plea of alibi flows from S. 11 and is demonstrated by
Illustration (a). Sarkar on Evidence (Fifteenth Edition, p. 258)
states the word 'alibi' is of Latin origin and means
"elsewhere." It is a convenient term used for the defence
taken by an accused that when the occurrence took place he
was so far away from the place of occurrence that it is highly
improbable that he would have participated in the crime. Alibi
is not an exception (special or general) envisaged in the Indian
Penal Code or any other law. It is only a rule of evidence
recognised in S. 11 of the Evidence Act that facts which are
inconsistent with the fact in issue are relevant. The burden of
proving commission of offence by the accused so as to fasten
the liability of guilt on him remains on the prosecution and
would not be lessened by the mere fact that the accused had
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adopted the defence of alibi. The plea of alibi taken by the
accused needs to be considered only when the burden which
lies on the prosecution has been discharged satisfactorily. If
the prosecution has failed in discharging its burden of proving
the commission of crime by the accused beyond any
reasonable doubt, it may not be necessary to go into the
question whether the accused has succeeded in proving the
defence of alibi. But once the prosecution succeeds in
discharging its burden then it is incumbent on the accused
taking the plea of alibi to prove it with certainty so as to
exclude the possibility of his presence at the place and time of
occurrence. An obligation is cast on the Court to weigh in
scales the evidence adduced by the prosecution in proving of
the guilt of the accused and the evidence adduced by the
accused in proving his defence of alibi. If the evidence
adduced by the accused is of such a quality and of such a
standard that the Court may entertain some reasonable doubt
regarding his presence at the place and time of occurrence, the
Court would evaluate the prosecution evidence to see if the
evidence adduced on behalf of the prosecution leaves any slot
available to fit therein the defence of alibi. The burden of the
accused is undoubtedly heavy. This flows from S. 103 of the
Evidence Act which provides that the burden of proof as to any
particular fact lies on that person who wishes the Court to
believe in its existence. However, while weighing the
prosecution case and the defence case, pitted against each
other, if the balance tilts in favour of the accused, the
prosecution would fail and the accused would be entitled to
benefit of that reasonable doubt which would emerge in the
mind of the Court.
64. The Hon'ble Apex Court in the case of Vijay Pal v. State
(GNCT) of Delhi reported in AIR 2015 Supreme Court 1495 at
paragraph 25 has held as under :
"25. In our considered opinion, when the trial court as well as
the High Court have disbelieved the plea of alibi which is a
concurrent finding of fact, there is no warrant to dislodge the
same. The evidence that has been adduced by the accused to
prove the plea of alibi is sketchy and in fact does not stand to
reason. It is not a case where the accused has proven with
absolute certainty so as to exclude the possibility of his
presence at the place of occurrence. The evidence adduced by
the accused is not of such a quality that the Court would
entertain a reasonable doubt. The burden on the accused is
rather heavy and he is required to establish the plea of alibi
with certitude. In the instant case, nothing has been brought
on record that it was a physical impossibility of the presence of
the accused to be at the scene of the offence by reason of his
presence at another place. The plea can succeed only if it is
shown that the accused was so far away at the relevant time
that he could not be present at the place where the crime was
committed. [See Dudh Nath Pandey v. State of U.P. 15]. The
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evidence of the sister, DW-1, does not inspire any confidence.
The cumulative effect of the evidence as regards the presence
of the accused at the scene of occurrence cannot be
disbelieved on the basis of bald utterance of the sister which is
not only sketchy but also defies reason. Hence, we are obliged
to concur with the findings recorded on this score by the
learned trial Judge that has been given the stamp of approval
by the High Court."
65. The Hon'ble Apex Court in the case of Shaikh Sattar vs.
State of Maharashtra reported in (2010) 3 SCC (Cri.) 906 at
paragraph 35 has held as under :
"35. Undoubtedly, the burden of establishing the plea of alibi
lay upon the appellant. The appellant herein has miserably
failed to bring on record any facts or circumstances which
would make the plea of his absence even probable, let alone,
being proved beyond reasonable doubt. The plea of alibi had to
be proved with absolute certainty so as to completely exclude
the possibility of the presence of the appellant in the rented
premises at the relevant time. When a plea of alibi is raised by
an accused it is for the accused to establish the said plea by
positive evidence which has not been led in the present case.
We may also notice here at this stage the proposition of law
laid down in Gurpreet Singh v. State of Haryana [(2002) 8 SCC
18 : 2003 SCC (Cri) 186] as follows: (SCC p. 27, para 20)
"20. ... This plea of alibi stands disbelieved by both the courts
and since the plea of alibi is a question of fact and since both
the courts concurrently found that fact against the appellant,
the accused, this Court in our view, cannot on an appeal by
special leave go behind the abovenoted concurrent finding of
fact."
66. In view of the settled proposition of law, the plea of alibi is not
proved on behalf of the accused persons, rather the testimony of
these witnesses D.W.-4, 5 and 6 who are office bearers of accused
persons employer department, who stated that their signature on the
date of occurrence in the attendance register differ from the their
signature on OD register and overwriting was also there. Further it is
admitted by these officials that even after putting the signature in the
attendance register, the employees could leave the office at any
time. The guilty conduct of the accused persons in doing
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overwriting on the signature in attendance register on the
date of occurrence also corroborate the prosecution story.
67. Even if the trial court had not framed the charge against the
accused persons with the help of Section 34 or 149 of the I.P.C., yet
from the testimony of the P.W.-3 Rameshwar Sahu, the informant,
who is also eye-witness and other witnesses i.e., P.W.-1 Tapeshwar
Kumari and P.W.-2 Saroj Kumari, it is found that both the appellants
Suresh Prasad Sahu and Aditya Prasad Sahu shared the common
intention in commission of murder of the deceased Gajendra Prasad
Gupta.
68. The Hon'ble Apex Court in the case of Chittarmal v. State of
Rajasthan reported in (2003) 2 SCC 266 in paragraph 14 held as
under :
"14. It is well settled by a catena of decisions that Section 34 as well
as Section 149 deal with liability for constructive criminality i.e.
vicarious liability of a person for acts of others. Both the sections deal
with combinations of persons who become punishable as sharers in
an offence. Thus they have a certain resemblance and may to some
extent overlap. But a clear distinction is made out between common
intention and common object in that common intention denotes
action in concert and necessarily postulates the existence of a
prearranged plan implying a prior meeting of the minds, while
common object does not necessarily require proof of prior meeting of
minds or preconcert. Though there is a substantial difference
between the two sections, they also to some extent overlap and it is a
question to be determined on the facts of each case whether the
charge under Section 149 overlaps the ground covered by Section 34.
Thus, if several persons numbering five or more, do an act and intend
to do it, both Section 34 and Section 149 may apply. If the common
object does not necessarily involve a common intention, then the
substitution of Section 34 for Section 149 might result in prejudice to
the accused and ought not, therefore, to be permitted. But if it does
involve a common intention then the substitution of Section 34 for
Section 149 must be held to be a formal matter. Whether such
recourse can be had or not must depend on the facts of each case.
The non-applicability of Section 149 is, therefore, no bar in convicting
the appellants under Section 302 read with Section 34 IPC, if the
evidence discloses commission of an offence in furtherance of the
common intention of them all. (See Barendra Kumar Ghosh v. King
Emperor [AIR 1925 PC 1 : 26 Cri LJ 431] , Mannam
Venkatadari v. State of A.P. [(1971) 3 SCC 254 : 1971 SCC (Cri) 479 :
AIR 1971 SC 1467] , Nethala Pothuraju v. State of A.P. [(1992) 1 SCC
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Cr. Appeal (DB) No.150 of 1994(R)
49 : 1992 SCC (Cri) 20 : AIR 1991 SC 2214] and Ram Tahal v. State of
U.P. [(1972) 1 SCC 136 : 1972 SCC (Cri) 80 : AIR 1972 SC 254] )"
69. In view of the re-appreciation of the evidence on record, as
discussed hereinabove, we are of the considered view that the
prosecution has been successful in proving its case against the
accused persons for the offence under Section 302 read with Section
34 of the I.P.C. beyond reasonable doubt. Accordingly, the impugned
judgment of conviction passed by the learned trial court is affirmed
by modifying the conviction as passed by the learned trial court.
70. Accordingly, the judgment of conviction dated 30th August,
1994 passed by the 3rd Additional Judicial Commissioner, Ranchi
convicting the aforesaid accused/appellants is, hereby, affirmed as
modified hereinabove. The present criminal appeal is, hereby,
dismissed.
71. So far as the sentence passed against the appellants is
concerned, the learned trial court had not imposed fine for the
offence under Section 302 of the I.P.C.; while in view of Section 302
of the I.P.C. imposing fine along with imprisonment is also
mandatory. Such omission on the part of the learned trial court is
curable. Accordingly, the fine of Rs.2,000/- is also imposed and to
this extent the sentence passed by the learned trial court stands
modified.
72. The appellants were granted bail vide order dated 14th
September, 1994 during pendency of the appeal, their bail bonds are
cancelled and they would surrender before the learned trial court,
who would send them jail to serve out the sentence.
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73. Let the lower court's record be sent to the court concerned
forthwith along with a copy of this judgment for necessary
compliance.
I agree (Sujit Narayan Prasad, J.)
Sujit Narayan Prasad, J.
(Subhash Chand, J.)
Jharkhand High Court, Ranchi
Dated, the 10th February, 2023.
Rohit Pandey/ A.F.R.
