Ramadhir Singh @ Ramadhin Singh vs The State Jharkhand
2023 Latest Caselaw 3618 Jhar

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 338 of 2015

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[Against the judgment of conviction dated 09.04.2015 and order of sentence dated 18.04.2015 passed by the learned Additional Sessions Judge VII, Dhanbad in Sessions Trial No. 07 of 2000]

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Ramadhir Singh @ Ramadhin Singh, son of Late Chandi Prasad Singh, resident of Singh Mansion, P.O. & P.S. Saraidhela, District Dhanbad (Jharkhand) .... Appellant Versus The State Jharkhand... .... ... Respondent

PRESENT HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR .....

For the Appellant : Mrs. Anjana Prakash, Sr. Advocate Mr. Anup Kr. Sinha, Advocate Mr. Suraj Singh, Advocate Mr. Anand Kr. Sinha, Advocate Mr. Anuj Prakash, Advocate Mr. Neeraj Dubey, Advocate Mr. Praduman Kumar, Advocate Mr. Manoj Kumar Ram, Advocate For the State : Mr. Nehala Sharmin, A.P.P. For the Informant : Mr. Rajan Raj, Advocate Mr. Prem Prakash, Advocate .....

C.A.V. on 25/08/2023 Pronounced on 27/09/2023 Per Sujit Narayan Prasad, J.:

1. The instant appeal, filed under Section 374 (2) of the

Code of Criminal Procedure, has been preferred against

the judgment of conviction dated 09.04.2015 and order of

sentence dated 18.04.2015 passed by the learned

Additional Sessions Judge VII, Dhanbad in Sessions Trial

No. 07 of 2000, by which the appellant-Ramadhir Singh

@ Ramadhin Singh has been convicted under Section

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302/34 of the Indian Penal Code and under Section 27 of

the Arms Act; and has been sentenced to undergo

imprisonment for life for the offence committed and

punishable under Section 302/34 of the Indian Penal

Code and R.I for three years for the offence committed

and punishable under Section 27 of the Arms Act. Both

the sentences were directed to run concurrently.

Facts of the Case:

2. This Court, before proceeding to examine the legality

and propriety of the judgment of conviction and order of

sentence, deems it fit and proper to refer the background

of institution of prosecution case, as per fardbeyan of

informant, namely Dun Bahadur Singh (P.W. 10), which

reads as under:

3. The fardbeyan of the informant Dun Bahadur Singh

(P.W.10), who is a resident of Sijua More, P.S. Jogta,

District Dhanbad, was recorded by Sub-Inspector of

Police R.N. Tiwary, Officer-in-Charge Katras Police Station

at 09.15 Hours on 15.07.1998 near the place of

occurrence i.e., Katras Hatia Road near Shahid Bhagat

Singh Chowk, on the basis of which F.I.R was instituted

on 15.07.1998 at 11.30 Hours, wherein it is stated that

on 15.07.1998 at 8.00 hours he (informant) was going

from his house situated at Sijua More to Katras Coal

Dump by his Mahindra Jeep bearing registration No. BR-

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17E 0098, which was driven by him. His younger brother,

Binod Singh was going ahead of him, from his new

Ambassador Car, which was driven by Binod Singh's

driver namely, Manu Ansari. When they were crossing the

densely populated Panchgarhi market and reached near

Shahid Bhagat Singh Chowk, Katras Hatia, at about 8.40

hours one white Maruti Car, which was coming from back

side, overtook the both the vehicles and stopped. After

being stopped, from the vehicle three persons got down

and started firing indiscriminately from automatic

firearms upon the vehicle of Binod Singh. At that time

informant's vehicle was 50 yards from the victim's vehicle.

Due to fear, the informant remained there.

4. After making about more than fifty rounds of firing

the accused persons ran to sit in the Maruti Car and fled

away towards Rajganj speedily. Informant rushed towards

the victim's vehicle and saw that the said vehicle was

badly damaged and further Binod Singh and his driver

Manu Ansari were fallen in the car in the pool of blood.

Thereafter several persons also assembled there.

5. It is further stated that the informant immediately

thereafter rushed to Tila Tand Central Hospital from his

jeep and brought Dr. Uma Shankar to the place of

occurrence, who saw the victims (Binod Singh and his

driver Manu Ansari) and declared both of them dead.

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Informant has further stated that he has seen the

accused persons and has identified them.

6. Informant has named the accused persons as

Ramadhin Singh (brother of late Surajdeo Singh, Ex.

MLA), Rajeev Ranjan Singh (son of Surajdeo Singh) aged

25 years. The third person was of general height having

small beard and hair from the front was bald and wore

jeans pant, about whom he stated that he could recognize

but did not know his name. All the accused persons were

firing from automatic weapon and after firing Ramadhin

Singh, the appellant herein, asked them to flee away

uttering that the work has been done.

7. It has further been stated in the fardbayan that the

murder of Binod Singh was committed due to old existing

enmity on instigation by accused Bachcha Singh in his

conspiracy with all the accused persons.

8. On the basis of fardbeyan of the informant, a formal

F.I.R. being Katras P.S Case No. 232 of 1998 dated

15.07.1998 was registered under Sections 302/120B/34

of the Indian Penal Code and under Section 27 of the

Arms Act.

9. On conclusion of the investigation, Police submitted

charge-sheet Vide No.224 of 1998 dated 16.09.1998

against Bachcha Singh, Rajeev Ranjan Singh, Ramadhin

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Singh @ Ramadhir Singh, and Sher Bahadur Singh, while

accused Anil Yadav was declared absconder.

10. Subsequently, a prayer was made by Criminal

Investigation Department, Bihar to seek permission for

further investigation of the case under section 173(8)

Cr.P.C, but that prayer was rejected by learned Chief

Judicial Magistrate, Dhanbad, on account of absence of

proper and valid direction to Criminal Investigation

Department, if any, issued by the State Government,

however, it was directed to proceed in accordance with

law. Thereafter, the case was committed to the Court of

sessions.

11. After the sessions trial was opened, all accused

persons jumped bail, except Bachcha Singh. Therefore,

considering the old nature of the case, trial of accused

Bachcha Singh was separated vide order dated

23.04.2004 and the case of other accused persons was

numbered as S.T. No. 07A/2000

12. On 23.04.2004, the trial Court framed charge against

Bachcha Singh for offences punishable under Section

302/24 and 120B IPC to which he pleaded not guilty and

claimed to be tried.

13. Subsequently, as would appear from order dated

01.07.2009, the trial of Ramadhin Singh (appellant),

which was previously in S.T. No. 07A/2000, was

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amalgamated with main file of S.T. No. 07/2000 by order

passed by predecessor Court in S.T. No. 07A/2000 which

relates to accused Ramadhin Singh @ Ramadhir Singh

only. Further, a separate split up case, numbered as S.T.

No. 07B/2000, was directed to be opened in respect of

remaining accused persons, namely, Rajeev Ranjan Singh

and Sher Bahadur Singh and absconder Anil Yadav.

14. Subsequently, in Sessions Trial Case No. 7A/2000

accused Ramadhir Singh @Ramadhin Singh was charged

for offences punishable under Section 302/34, 120B IPC

and under Section 27 Arms Act, to which he pleaded not

guilty and claimed to be tried.

15. Accordingly, after the prosecution closed its evidence,

in course of recording statements of accused persons

under section 313 CrPC, it was detected that there was

an error in the charge framed by the predecessor Court

inasmuch as the name of another victim/deceased,

namely, Manu Ansari was inadvertently left out in the

charge. Therefore, the charge was corrected by adding the

name of second victim-deceased, namely, Manu Ansari,

for the offence committed under Section 302/34 IPC,

which was also framed against Bachcha Singh and

accused/appellant Ramadhir Singh @Ramadhin Singh,

vide order dated 13.02.2013.

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16. Corrected charges were read over and explained to

Bachcha Singh and accused/appellant Ramadhir Singh

@Ramadhin Singh in Hindi, to which they pleaded not

guilty and claimed to be tried.

17. The Prosecution, in order to prove its case, has

altogether examined 19 witnesses as also proved various

documents and material exhibits.

18. The trial Court, after recording the evidence of

witnesses, examination-in-chief and cross-examination,

recorded the statement of the accused persons under

Section 313 of the Criminal Procedure Code and found the

charges levelled against the appellant proved.

19. Accordingly, the appellant had been found guilty as

such convicted vide impugned judgment of conviction

dated 09.04.2015 and sentenced vide order of sentence

dated 18.04.2015, which is the subject matter of instant

appeal

20. The aforesaid judgment of conviction and order of

sentence is under consideration before this Court as to

whether the trial Court, while convicting the accused

person, has committed any illegality or not?

Argument on behalf of Appellant:

21. Mrs. Anjana Prakash, learned senior counsel for the

appellant, assisted by battery of lawyers, has assailed the

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impugned judgment of conviction and order of sentence on

the following grounds:

I. Serious prejudice has been caused in altering

the charge by making addition of name of one of the

deceased, namely Manu Ansari, at the stage of

recording statement under Section 313 Cr.P.C. The

ground of prejudice has been taken on the ground

that though the charge-sheet was submitted

showing the culpability of the appellant of

committing murder of Binod Kumar Singh and

Manu Ansari, but, charge has not been framed

showing the culpability of committing crime of

murder of Manu Ansari and the trial proceeded in

absence of fact of commission of crime of murder of

Manu Ansari and it is only at the stage of recording

statement under Section 313 Cr.P.C., the charge

has been altered by making addition in the charge of

committing crime of murder of Manu Ansari along

with another deceased Binod Kumar Singh.

Therefore, submission has been made that the

entire prosecution case has been vitiated. It has

further been submitted that accused has a right to

defend the charge of the offence for which he is

being tried, as such addition of charge of murder of

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said Manu Ansari at the stage of 313 Cr.P.C results

into grave miscarriage of justice.

II. In order to buttress this limb of the argument,

the learned senior counsel relied upon the judgment

rendered by the Hon'ble Supreme Court in the case

of Ugar Ahir Vs. State of Bihar [AIR 1965 SC

277] and Virubhai Ranchodbhai Patel Vs. Rajeev

Bhai Dudha Bhai Patel [(2018) 7 SCC 743].

III. Learned senior counsel for the appellant has

further taken the ground of contradiction in the

testimony of witnesses. In order to point out

contradictions in their evidences, learned senior

counsel has referred particularly the testimony of

P.W. 13-Manoj Kumar Singh, who in his testimony

has stated that they (including informant) received

information of the occurrence from their brother

Sakaldev Singh, who was not examined, while they

(informant and said P.W. 13-Manoj Kumar) were at

home and as such it is stated that from the

statement of P.W. 13 it is evident that the presence

of informant (P.W. 10) at the place of occurrence at

the relevant time is doubtful.

IV. Learned senior counsel has further submitted

that none of the witnesses including the informant

has stated that the Fardbeyan was recorded at the

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place of occurrence rather the purported eye-

witnesses like Sudhir Kumar (P.W.1), Nawal Kishore

Singh (P.W.2) and Debashish Ghoshal (P.W.6) have

denied that any documentation was done at the

place of occurrence.

V. In the backdrop of the aforesaid facts, question

has been made by learned senior counsel that the

FIR which was registered on the same day at 11.30

AM then why it reached the Court next day and in

such circumstances, the recording of the

Fardbayan at the place of occurrence become

doubtful.

VI. To substantiate this aspect of contention

reliance has been placed by the appellant on the

judgment rendered by the Hon'ble Apex Court in

Arjun Marik Vs. State of Bihar [1994 (suppl) 2

SCC 372].

VII. Learned senior counsel has contended that all

the self-proclaimed eye-witnesses are chance

witnesses and the law on chance witnesses is

settled as per the judgment rendered by the Hon'ble

Apex Court in Jarnail Singh and Anr. Vs. State

of Punjab [2009 9 SCC 719] and Manoj and Ors.

Vs. State of M.P. [2023 2 SCC 719] that on the

basis of testimony of chance witness the accused

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(appellant) cannot be convicted, but the learned trial

Court relying upon the testimony of such chance

witnesses has passed the impugned judgment of

conviction and order of sentence, which is not

sustainable in the eye of law. Furthermore, the

Investigating Officer (P.W.17) did not make

investigation about the presence of witnesses at the

place of occurrence at the relevant time, which itself

suggests that all such self-proclaimed eye-witnesses

are planted witnesses, whose testimony are not

trustworthy.

VIII. Learned senior counsel showing contradiction

in the testimony of witnesses has submitted that

there is inter-se contradiction between the eye-

witnesses as P.W.1 says that a white color Maruti

car was used in the commission of crime whereas

P.W.10 has deposed that a Maruti Van which

overtook the vehicle of deceased firing was made

from the said Maruti car. Learned senior counsel in

the aforesaid background has submitted that since

there is major contradiction amongst the self-

proclaimed eye-witnesses on the point of vehicle as

to whether Maruti car or van used in the

commission of crime, therefore the story of

prosecution appears to be doubtful.

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IX.     The learned senior counsel further showing

contradiction in the testimony of witnesses has

pointed out that P.W.12, Dr. Uma Shankar Singh

has not supported the version of the informant that

the informant came in his jeep at his place and

brought him to the place of occurrence rather this

witness has stated he learnt about the occurrence

on the telephone by the wife of deceased-Binod

Kumar Singh.

X. In the aforesaid backdrop, submission has been

made that in the instant case neither material

witnesses have been examined nor there is any

corroboration to the fact of prosecution case with

the independent witnesses, therefore, the

prosecution cannot be said to have proved the

charge beyond all reasonable doubts.

XI. Learned senior counsel for the appellant on the

aforesaid premises has submitted that since the

prosecution has failed to prove the charges against

appellant beyond the shadow of all reasonable

doubts, as such it is a fit case where the appellant is

required to be acquitted and the judgment of

conviction and order of sentence passed by learned

trial Court is to be quashed and set aside.

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Argument on behalf of State & Informant:

22. Mrs. Nehala Sharmin, learned Additional Public

Prosecutor appearing for the respondent-State assisted by

Mr. Rajan Raj, learned counsel for the informant have

jointly submitted that there is no error in the impugned

judgment of conviction and order of sentence since the

learned trial Court after taking into consideration the

testimony of witnesses in entirety which is being

supported by medical evidence has passed the impugned

judgment of conviction and order of sentence, which

requires no interference by this Court. In order to refute

the argument advanced by learned senior counsel for the

appellant, they have made following grounds:

I. In response to the argument advanced by learned

counsel for the appellant that since there is

alteration/addition of charge at the very belated

stage it caused prejudice to the defence of the

appellant, it has been submitted that it is totally

fallacious argument and not tenable in the eye of law

since the very foundation of the instant case is

murder of two persons, namely Binod Singh and his

driver Manu Ansari but due to inadvertence the

name of Manu Ansari has left out, for which there

was addition in charge which cannot be said to have

caused prejudice to appellant as he cross-examined

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the witnesses during trial and the appellant without

any demur led evidence and cross-examine the

witnesses. Contention therefore has been made that

once the parties are knowing about the case merely

because due to inadvertence the name of one of the

deceased, namely, Manu Ansari, is left out the same

cannot be construed to be reason to raise the issue of

prejudice. It has been submitted that defence was

known about the commission of murder of two

persons, namely Binod Kumar Singh and Manu

Ansari and not only that they have cross-examined

the witnesses on this point also, therefore, it is not a

case where prejudice has been caused.

II. In this regard, further submission has been made

that it is settled proposition of law as per Section

216(4) Cr.P.C. the Court can add or alter the charges

at any stage of the trial and even before the

pronouncement of the judgment and while doing so

the trial Court has only to take care that prejudice is

not caused to the appellant.

III. To substantiate the argument, the learned counsel

put reliance upon the judgment rendered by the

Hon'ble Supreme Court in P. Kartikalakshmi Vs.

Sri Ganesh [(2017) 3 SCC 347].

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IV. Submission has been made that since no prejudice

has been caused to the appellant as he has cross-

examined the witnesses on this point and it was

known to the appellant that Manu Ansari has been

murdered along with Binod Kumar Singh, therefore,

for the inadvertence of not adding the name of Manu

Ansari at initial stage rather at the stage of recording

statement under Section 313 Cr.P.C the name of

Manu Ansari has been added in the charge, that

cannot be said to have caused prejudice to the

appellant, therefore, the argument advanced by

learned senior counsel for the appellant in this

regard has no leg to stand.

V. So far contention of learned senior counsel for the

appellant that the presence of informant at the place

of occurrence is doubtful in the light of testimony of

P.W.13, submission has been made that it is totally

misconceived because the presence of informant at

the place of occurrence is very natural as deceased

and informant were going to their workplace

respectively and despite cross-examination at length

of the prosecution witness nothing has come to

discredit the presence of informant at the place of

occurrence.

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VI. Further all the other eyewitnesses have supported

the version of the informant that he was present at

place of occurrence since very inception and murder

of both the deceased were taken place in presence of

him. It is settled position of law that even if there are

minor discrepancies between the evidence of

witnesses, the conviction is liable to be sustained.

VII. In order to substantiate his argument, the learned

counsel put his reliance upon the judgment rendered

by the Hon'ble Division Bench of this Court in the

case of Bhim Singh Vs. State of Bihar reported in

2023 SCC Online Jhar. 46.

VIII. So far contention of appellant that F.I.R is

antedated, submission has been made that it is not

correct as fardbeyan was recorded on 15.07.1998

immediately after the occurrence and there is no

inordinate delay in the sending the F.I.R. to the

Court of learned Chief Judicial Magistrate as it was

sent on 16.07.1998.

IX. It has been submitted that since in the case at hand

the F.I.R. was lodged within short span of time and

was sent before the learned Court thereafter, as such

the judgment of conviction is not liable to be

interfered with. Learned Counsel in order to

substantiate his argument has put reliance upon the

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judgment rendered by the Hon'ble Apex Court in

Bhajan Singh Vs. State of Haryana [(2011) 7 SCC

421] and Budhsingh Vs. State of M.P. [(2013) 7

SCC 629].

X. On the contention of learned counsel for the

appellant that all the eye-witnesses are chance

witness, it is submitted that murder is not committed

with previous notice to witnesses soliciting their

presence and if murder is committed in the street,

only passers-by will be the witness and their evidence

cannot be brushed aside with suspicion on the

ground that they are mere ―chance witnesses‖.

Learned Counsel putting reliance upon the judgment

rendered by the Hon'ble Apex Court in Ramvir Vs.

State of U.P. [(2009) 15 SCC 254] and Sarvesh

Narain Shukla Vs. Daroga Singh [(2007) 13 SCC

360] has submitted that here since all the eye

witnesses are consistent in their statement in cross-

examination, the prosecution case cannot be

disbelieved on this ground.

XI. So far as argument regarding the variation in

description of vehicle is concerned, the learned

counsels have submitted that the evidence of witness

with respect to description of vehicle i.e., Maruti Car

is consistent and there is no confusion regarding the

- 18 - Cr. Appeal (DB) No. 338 of 2015

same and even if there is minor contradiction, as

found that P.W.1 says that a white color Maruti car

used in the commission of crime whereas P.W.10

stated that a Maruti Van was used that will not

vitiate the trial or erode the credibility of the

witnesses, as per settled proposition of law settled by

Hon'ble Apex Court that different persons would

react to the same situation in different manner and

there can be no uniform or accepted code of conduct

to judge the correctness of the conduct of the

prosecution witnesses.

XII. In order to buttress his argument, learned counsel

for the respondent relied upon the judgment

rendered by Hon'ble Apex Court in in the case of

Leella Ram Vs. State of Haryana reported in

[(1999) 9 SCC 525[ and State of Uttar Pradesh Vs.

Naresh [(2011) 4 SCC 324].

XIII. The learned counsel for the State has argued in

response to the contention of the appellant that the

PW.12-Dr. Uma Shankar Singh in his examination-

in-chief has not supported the version of the

informant at some extent, but on the other hand

from paragraph 19 of the testimony of I.O. it has

come that he recorded the statement of doctor

(P.W.12) under section 161 Cr.P.C. where P.W.12 has

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stated that the informant (P.W.10) came to his clinic

in his Jeep to call him and taken him to the place of

occurrence, it has been submitted that it is settled

proposition of law that the entire evidence of hostile

witness need not be discarded and the testimony of

hostile witness corroborating prosecution story in

material particulars can be relied upon. The learned

counsel referred the judgment of the Hon'ble Apex

Court in the case of Kathi Bharat VasjurVs. State

of Gujrat [(2012) 5 SCC 724].

XIV. The learned counsel for the State has emphatically

argued that the prosecution is not bound to produce

each and every witness because it may create

ambiguity in the prosecution evidence and it is

settled connotation of law that quality of witness

matters and not quantity. He put his reliance upon

the judgment rendered by the Hon'ble Apex Court in

Amar Singh &Ors. Vs. Balwinder Singh & Ors.

(2003) 2 SCC 518 and Harpal Singh Vs. Devinder

Singh (1997) 6 SCC 660.

23. In the aforesaid premise, submission has been made

that the learned trial Court after taking into consideration

the aforesaid fact coupled with the testimony of the

Investigating Officer and the doctor has passed the

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judgment of conviction, which cannot be said to suffer

from error.

24. Learned Additional Public Prosecutor on the basis of

aforesaid ground has submitted that the judgment of

conviction and order of sentence requires no interference

by this Court.

25. We have heard learned counsel for the parties,

perused the materials available on record more

particularly the testimony of the witnesses and the finding

recorded by learned trial Court.

26. This Court, before considering the argument

advanced on behalf of the parties, is now proceeding to

consider the testimony of witnesses, as per the testimony

recorded by learned trial Court.

27. P.W. 1-Sudhir Kumar, has deposed that at the

relevant time he was returning from Katras Coal Dump to

his house and when reached near Saheed Bhagat Singh

Chowk (i.e. place of occurrence) he heard the sound of

bullet fire whereupon he stayed there by standing his

scooter. In his testimony, he has further deposed that he

saw a high speed white-colour Maruti car was going

towards Rajganj on which Ramadhin Singh and Rajeev

Ranjan Singh were seated on backseat with fatal weapon

in their hand and a boy having beard and cap was sitting

on the front seat of the car and the car was being driven

- 21 - Cr. Appeal (DB) No. 338 of 2015

by Anil Yadav. He has stated that he had seen a firearm,

like the revolver or pistol in the hand of Rajeev Ranjan

Singh. Thereafter, he went to the place of occurrence and

saw Dun Bahadur Singh crying and saying that

Ramadhin Singh and Rajeev Ranjan Singh murdered his

brother, Binod Singh, by bullet firing. This witness has

further stated that he peeped into the bullet imbedded

car and found Binod Singh and his driver Manu Ansari

with profused bleeding. He claimed to have identified

accused persons.

28. This witness has stated in his cross-examination that

he was examined before Magistrate (u/s 164 CrPC) on

which he had put his signature which he identified and

was marked as Exhibit 1. His statement made under

Section 164 Cr.P.C before the Magistrate is same and

similar and there is no variation in his statement and

further in the cross-examination the appellant failed to

shake his testiminony what has been deposed in

examination-in-chief.

29. P.W. 2-Nawal Kumar Singh, another eye witness to

the occurrence, has stated that at the relevant time he

was going to Panchgarhi and when he reached at Saheed

Bhagat Singh Chowk, he saw that upon white colour

Ambassador Car accused persons, Rajeev Ranjan Singh

and Ramadhin Singh, were firing indiscriminately and

- 22 - Cr. Appeal (DB) No. 338 of 2015

another person having beard and cap was present there.

Along with the crowd, he also reached near vehicle and

saw that Binod Singh and his driver was lying in pool of

blood in the vehicle. He has further deposed that Rajiv

Ranjan Singh and Ramadhin Singh waiving pistol in hand

fled away towards Rajganj on the Maruti Car. In his

testimony he has deposed that he along with crowd and

Dun Bahadur Singh, the brother of Binod Singh also

reached, from where Dun Bahadur Singh went to Tilatand

Hospital and brought doctor, who declared the injured

dead. He has further stated that he was also examined

before Magistrate under section 164 CrPC, which bears

his signature, which has been proved by him and marked

as Exhibit 1/1. In his cross-examination, he has stated

that he was at distance of 30 steps away from the place of

occurrence and nothing contrary has come out from the

testimony as given during cross-examination.

30. P.W.3-Amrendra Kumar Singh is a seizure witness,

who identified his signature over the seizure lists.

31. P.W. 4-Madho Singh is a hearsay witness, who has

deposed that at the time of incidence he was in his house

and heard that Binod Singh has been murdered at Bhagat

Singh Chowk. Thereafter, he went to the place of

occurrence and saw the crowd.

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Madho Singh (PW4) has stated that while he was

present at a tea stall at ‗Pandeydih Chowk' he overheard

Sher Bahadur Singh (absconding accused) talking with a

known fellow and speaking thus, ―Binod Singh is no more,

now we will rein‖.

32. P.W. 5-Dilip Kumar Singh has stated that incident

is of 15.07.1998 when he was going from his house to

Dugdha and reached office of Khas Sindua Janta Mazdoor

Sangh, Sindua he had seen Rajeev Ranjan Singh and

Ramadhin Singh and one person having small beard along

with driver Anil Yadav seated on the white coloured Maruti

car. After some time, the maruti car passed away by

blowing horn. When he reached the office he heard that

Binod Singh and his driver have been murdered.

Thereafter he went to the place of occurrence and saw the

dead body of Binod Singh and his driver Manu Ansari. He

has proved his signature (Exhibit 1/2) on his statement

under section 164 CrPC.

33. In his cross-examination, he has stated that he

previously had also made statements. He has further

stated that he used to go Dughda daily where in the

Sharma Transport he was working as Munshi.

34. P.W. 6-Debashish Kumar Ghoshal, an eye witness

to the occurrence, has deposed that at the relevant time

he was going towards Sijua and when he reached near

- 24 - Cr. Appeal (DB) No. 338 of 2015

Saheed Bhagat Singh Chowk, he saw firing and heard fire

shots. The person who was firing was Ramadhin Singh

(appellant herein) and Rajiv Ranjan Singh. He further

deposed that one another person having beard and cap

was also there to whom he did not recognize. This witness

has further deposed that Ramadhin Singh and Rajiv

Ranjan sat on the back seat of maruti car whereas person

with beard sat on front seat of the vehicle. All three

persons fled away by showing their arms in air. After the

incidence many persons assembled there and when he

peeped in the Ambassador Car he found his owner, Binod

Kumar Singh and Manu Ansari were in injured condition

in pool of blood. He has further deposed that on place of

occurrence the elder brother of the deceased namely Dun

Bahadur Singh was also there. Thereafter Dun Bahadur

Singh went by his jeep to call the doctor, Uma Shankar

Singh. Doctor came and declared them dead. He has

further deposed that he had also made statement before

the Magistrate under Section 164 Cr.P.C. where he put his

signature, which he identified and has been marked as

Exhibit 1/3.

35. In his statement recorded under section 164 CrPC

(Exhibit 18/2) under his signature (Exhibit 1/3) he had

made similar statement.

- 25 - Cr. Appeal (DB) No. 338 of 2015

36. In cross-examination his version remained consistent

and defence could not be able to shake his testimony what

has been deposed in the examination-in-chief.

37. P.W. 7-Tapan Kumar Dey, who runs a betel shop at

Saheed Chowk, has stated that on hearing the sound of

firing, he shut his shop and fled away and subsequently

he heard about murder of Binod Singh.

38. P.W. 8-Awdhesh Thakur, runs a saloon at the said

Chowk, has deposed that on hearing the sound of firing,

he closed his shop from inside and subsequently, he heard

that Binod Singh was killed.

39. P.W. 9-Satyendra Kumar Singh (PW9) has stated

that on telephonic information he came to know about

murder of Binod Singh. Thereafter, he went to Saheed

Chowk, where Dun Bahadur Singh told him that

Ramadhin Singh, Rajeev Ranjan Singh and one unknown

person murdered and fled away. He has proved his

signature on the carbon copies of inquest report of Binod

Singh and Manu Ansari, vide Exhibit 2 and 2/1 and also

on the fardbeyan vide Exhibit 3. He also stated that when

he had reached place of occurrence, Manoj Singh and

Sakaldeo Singh were present there.

40. P.W. 10-Dun Bahadur Singh (PW10) is the

informant. He has stated that Binod Singh had left his

house for going to Katras coal dump on his Ambassador

- 26 - Cr. Appeal (DB) No. 338 of 2015

car and he (this witness) had also left his house for same

destination on his own Armada car and at Bhagat Singh

Chowk and when he was 50 yards behind the car of Binod

Singh, one Maruti van overtook their car and stopped in

front of the car of Binod Singh. Three persons came out of

the Maruti van and started firing at car of Binod Singh.

Due to fear, this witness kept himself back about 50 feet

away, however, he claimed to have identified the

assailants who were Ramadhin Singh (appellant), Rajeev

Ranjan Singh and one unknown person. He has stated

that he went to a distance of 200 yards and brought Dr.

Umashankar Singh (P.W. 12) who examined both the

injured and declared them dead.

41. He testified in his cross-examination that he was

going to Katras coal dump site to supervise the

construction work of boundary wall around the coal dump

for which work contract was given to him by BCCL. He has

further stated that while the Investigating Officer was

recording his fardbeyan at place of occurrence, his elder

brother, Sakaldeo Singh had arrived there, but he did not

know that Sakaldeo Singh had any talk with the

Investigating Officer at that time. He admitted that there

was an old enmity between the parties which had

originated with Sakaldeo Singh. Nothing contrary could be

elicited by the defence in the cross-examination.

- 27 - Cr. Appeal (DB) No. 338 of 2015

42. P.W. 11-Dr Shailendra Kumar has conducted the

post-mortem examination on the dead body of Md. Manu

Ansari at PMCH, Dhanbad and found following ante

mortem injuries on his person:

(i). Lacerated wound 2.5 inch x 1" bone deep with fracture in clavicle on left collar bone. A distorted and deshaped piece of jacket of a bullet was recovered from the wound.

(ii). Punctured wound 3/4 inch 1/2 inch x cavity deep over right zymotic arch with abrasion on collor around the inverted margins that means it was a wound of entrance.

(iii). wound of entrance of a firearm 3/4 inch x 1/2 inch on left side front of neck with abrasion collor.

(iv). Exit wound of firearm 2 inch x 1 inch on back of left side of the neck. It was exit wound of injury no. 3 found by following the track.

(v) Wound of entrance of firearm quarter inch (1/4 inch) dimension at the root of right ear with evidence of abrasion collar and tatooing round the margins.

(vi) wound of exit 3 inch x 1/2 inch on the left side back of head and the brain matter was found coming out.

(vii). wound of entrance 1/2 inch x 1/4 inch x cavity deep on right side front of chest over 7th inter costal space with evidence of tatooing and abrasion collor around the margins.

(viii)Wound of entrance quarter (1/4 inch) inches diameter on right side front of chest with evidence of tatooing and abrasion collor around the margins.

(ix)Wound of entrance 1/2 inch diameter over right flank of chest over 6th inter costal space with tatooing and abrasion collor.

(x)Wound of entrance quarter (1/4 inch) inch diameter over the right flank of abdomen and abrasion collor. Sessions Trial No. 07/2000.

(xi) Two wounds of entrance 1/2 inch diameter each situated side by side on the outer aspect of middle of right forearm with evidence of abrasion collor.

- 28 - Cr. Appeal (DB) No. 338 of 2015

(xii)Two wounds of exit 1/2 inch x 1 inch and 2 inch x 1 inch on the inner aspect of middle of right forearm with fracture of both bones of forearm. They were exit wounds of injury No.11.

(xiii)Wound of entrance quarter inch (1/4 inch) diameter with abrasion collor on the front of the right thigh.

On dissection:

Chest cavity and abdominal cavity were full of blood clots.

Heart, both of lugs liver, spleen were extremely lacerated

with exploded appearance. One bullet 2.5 cm x 2.7 cm

was recovered from the liver. One bullet 2 cm x 0.7 cm

was recovered from posterior abdominal wall on left side.

Another bullet 2 cm x 5 cm also recovered from posterior

abdominal wall on left side. One bullet 2 cm x .5 cm was

recovered from right thigh. Another bullet 2 cm x 0.7 cm

was recovered from left angle of lower jaw.

This witness has proved the post-mortem report

(vide Exhibit 4), which was written and signed by him. In

his opinion, the time since P.M. examination was 4-8 hrs

and death was instantaneous caused by multiple bullet

injuries on a vital organ. Bullets were fired from a rifle

firearm from a distance of tattooing range and also from a

distance beyond that tattooing range. Tattooing range

means firearm used from a distance 12 to 24 inches. He

further explained that tattoo in grange of all the rifle

firearm is same varying within from 0 to 24 inches.

Cause of death - Death was intravenous above-mention

multiple bullet injury of vital organs. Bullets were fired

- 29 - Cr. Appeal (DB) No. 338 of 2015

from a fire arm from a distance of tattooing range and

also from a distance beyond the tattooing range.

Tattooing range means fin arm used from distance 12 to

24 inches.

43. P.W. 12-Dr. Uma Shankar has stated that at the

relevant time while he was about to leave his house for

his clinic, the wife of deceased Binod Singh made a call to

him saying ‗Binod Singh has sustained bullet injury at

Bhagat Singh Chowk and requested to go there and see.

On getting this information he went there and found that

Binod Singh and his driver in pool of blood and declared

them dead.

44. This witness was declared hostile. In cross-

examination by the prosecution, he denied to have so

stated before IO that while he was leaving his house, Dun

Bahadur Singh arrived at his house on Jeep and told that

Ramadhin Singh, Rajeev Ranjan Singh and one unknown

man having small beard and wearing cap, have fired upon

Binod Singh and requested him to hurry up to reach at

Bhagat Singh Chowk.

45. P.W. 13-Manoj Kumar Singh has proved his

signature (Exhibit 2/2 and Exhibit 2/3) respectively on

the carbon copy of inquest report of deceased Binod

Singh and Manu Ansari, which, according to him, were

prepared by Investigating Officer at Bhagat Singh Chowk.

- 30 - Cr. Appeal (DB) No. 338 of 2015

46. P.W. 14-Raghvendra Kumar Singh is the witness of

the prosecution case on angle of conspiracy. He is the

brother in law of deceased Binod Singh. He said that on

03.07.1998 he had visited the house of Binod Singh on

the occasion of marriage ceremony of cousin of Binod

Singh when this witness had found Binod Singh very

disturbed and, on his enquiry, Binod Singh had told this

witness that he (Binod Singh) was fearing for conspiracy

of his murder at the hands of Bachcha Singh, Ramadhin

Singh and Rajeev Ranjan Singh, however, Binod Singh

assured this witness that there was no cause for worry

because he (Binod Singh) was very alert. Again, on the

second occasion that is, on 12.07.1998 when Binod Singh

along with his family had visited the house of this witness

at Bokaro and had repeated his fear of his murder by

conspiracy of the said three persons and prophesied that

this meeting might be their last meeting and begged this

witness to take care for his (Binod's) children if he (Binod)

be killed by accused persons. He claimed that he was

examined by the Magistrate under section 164 CrPC and

proved his signature (Ext. 2/4) on his statement U/s 164

CrPC. Said statement was duly proved by Magistrate

Abhay Kumar Sinha (PW19) and marked as Exhibit 18.

47. In his statement under 164 CrPC this witness had

stated about aforesaid apprehension of Binod Singh of his

- 31 - Cr. Appeal (DB) No. 338 of 2015

murder under conspiracy by Bachcha Singh, Ramadhin

Singh and Rajeev Ranjan Singh in course of talk between

this witness and Binod Singh held on 03.07.1998. But,

he had not stated about any talk held between him and

Binod Singh on 12.7.98. In his evidence in Court and in

his evidence recorded under section 164 CrPC this

witness stated that Binod Singh feared that he would be

murdered by Bachcha Singh, Ramadhin Singh and

Rajeev Ranjan Singh.

48. P.W. 15-Ashok Singh is also a witness of alleged

conspiracy. He stated that on 19.07.1998 while he was

present at a tea stall at ―Pandeydih More‖, he overheard,

Sher Bahadur Singh, talking with two persons speaking

that, ―on request of Bachcha Singh, Ramadhin Singh and

Rajeev Ranjan, he had kept Anil Yadav and another

stranger at his (Sher Bahadur's) house and subsequently

learnt that they murdered Binod Singh and his driver,

and had he (Sher Bahadur) been aware that they would

commit such heinous act, he would not have allowed

them to stay at his house‖. This witness further stated

that at that point of time, Sher Bahadur Singh's attention

was drawn to this witness who did not respond.

49. P.W. 16-Dr Binod Kumar conducted the post-

mortem examination of the dead body of Binod Singh and

found following ante-mortem injuries on the deceased:-

- 32 - Cr. Appeal (DB) No. 338 of 2015

(i). punctured wound 1/6 inch diameter x cavity deep situated 1/2 inch below lower hip

(ii). punctured wound 1/4 inch diameter x cavity deep situated 1/4 inch below injury no.1

(iii). punctured wound 1/4 inch diameter x cavity deep at the right of Chin the margin of all the above mentioned wound showed abrasion collor and the margins were inverted.

(iv). punctured wound 1/2 inch x 1/3 inch x cavity deep at right zygoma

(v). punctured wound 3 inch x 3/4 inch x cavity deep at right chik

(vi). punctured wound 2/2 inch x 2 inch x cavity deep situated between root of right ear and out the end of right eye brow margins of injuries number 4, 5 and 6 were lacerated and inverted.

(vii). lacerating punctured wound 5 inch x 1 1/2 to 2 inch x cavity deep on the left temporal front parietal region including eye.

(viii). punctured wound 1/2 inch diameter x cavity deep on right temporal regions with lacerated and inverted.

(ix). punctured wound 1.3 inch diameter x cavity deep situated 1/2 inch below the injury no.8. Margin was lacerated and inverted.

(x). lacerated punctured wound 5 inch x1 1/2 inch to 2 inch x cavity deep with inverted margins, brain matter lying out, seen at left front parietal region.

(xi). punctured wound 1 inch x cavity deep at the lower 1/3rd of their clevicle, margins were lacerated and inverted.

(xii). Punctured wound 1/4 inch diameter x cavity deep with lacerated erected margin with abrasion collor seeing a right border of manubrium.

(xiii). punctured wound 1/2 inch diameter cavity deep lacerated bound situated at level of right nipple.

(xiv). punctured wound 1/2 inch diameter x cavity deep with lacerated inverted margins seen on the upper part back of left side chest and at the level of 2nd thorassic vertebra.

(xv). punctured wound 1 inch x 1/2 inch x cavity deep on the right side back of chest in the middle 11/2 inch right to the midline.

- 33 - Cr. Appeal (DB) No. 338 of 2015

(xvi). punctured wound 1.4 inch diameter x cavity deep at the left flank of the chest and the level of 8th rib. Margins are lacerated and inverted.

(xvii). 1/4 inch diameter x cavity deep punctured wound with lacerated inverted margins situated 4 inch below left nipple. (xviii). punctured wound 1/4 inch diameter x cavity deep situated 1 inch above and 1 inch left to the left nipple. (xix). punctured wound 1/2 inch diameter x cavity deep with lacerated inverted margins found little that of a right flank of chest at the level of 10th rib.

(xx). punctured 1/2 inch diameter x cavity deep with lacerated inverted margins at the back of axilla.

(xxi). punctured wound 1/2 inch diameter x cavity deep with lacerated inverted margins situated 1 inch above injury no.20. (xxii). punctured wound 1/3 inch diameter x muzzled in with lacerated inverted margins with top of right shoulder with exit wound 1/2 inch middle to the entrance wound passing through the nipple.

(xxiii). gutter type lacerated wound 1 1/2 inch x 1/2 inch x skin to muscle deep with front of right shoulder horizontal placed. On dissection:

Forensic and abdominal organs sustained multiple

lacerated tracks. Lungs, heart, liver, spleen were

massively lacerated, blood and clots was found in

thorassic and abdominal cavity. One bullet measuring 2

cm x 0.7 cm was taken out from the soft tissue at the

lower end of leftscaptula which was connecting to injury

no.11. That means that entrance wound of the bullets

skull bones showed multiple fracture and internal organ

were pale, stomach contained about 50 ml pasty like food

matter without any particular smell. Injury number i, ii,

iii,viii , ix, xii, xiii, xvi, xvii and xviii were entrance

- 34 - Cr. Appeal (DB) No. 338 of 2015

wounds and injuries number iv, v, vi, vii, viii, xiv, xv, xix,

xx and xxi were their exit wounds, respectively. Time

elapsed since death was between 3 to 5 hours before

post-mortem. In his opinion, death was due to

aforementioned multiple cranium cerebral and thoracic

abdominal injuries caused by bullet fired within tattooing

range. He has proved his signature on the post-mortem

report which was prepared and signed by him.

50. P.W.17-Ramnath Tiwari, the investigating officer

(I.O) of the case who has deposed that he went to Saheed

Bhagat Singh Chowk on 15.07.1998 at 9:10 a.m. on

receiving telephonic information (vide SD entry 325) and

found the dead bodies of two persons, who were identified

as Binod Singh and Manu Ansari lying in front seat of the

bullet ridden Ambassador car. Thereafter, immediately he

recorded the fardbeyan (Exhibit 6) of Dun Bahadur Singh

at place of occurrence, which is in his handwriting. He

also prepared forwarding letter which has been marked as

Exhibit 7. He has further stated that he took investigation

of the matter. He also identified the handwriting and

signature of Prem Sagar Dubey over formal FIR, which has

been marked as Exhibit 9. He further deposed that

charge-sheet was in his handwriting which has been

marked as Exhibit 10. He prepared the inquest reports

which were in his handwriting and signature, carbon copy

- 35 - Cr. Appeal (DB) No. 338 of 2015

of which were marked as Exhibit 11 and 11/1. The

Investigating Officer has also identified his handwriting

and signature over the seizure lists, which were marked as

Exhibit 12 and 12/1.

51. He further claimed to have recovered 23 numbers of

copper shells (vide material Exhibits I to I/22), four pieces

of fired brass shells (Material Exhibits II to II/3), three

pieces of frontal part of pellets (Material Exhibits III to

III/2) from place of occurrence, in the presence of

witnesses and prepared its seizure list (Exhibit 11). He

also seized the bullet ridden white Ambassador Car WB-

16T1937, from the place of occurrence at that very time in

presence of witnesses and found vital signs of 17 fire shot

holes towards right side of said Ambassador Car, 13 holes

on its front wind screen and the glass panes of left side,

were found broken entirely, and prepared its seizure list

(Exhibit 11/1) in presence of search and seizure

witnesses. He further stated that the bodies of both the

deceased were found on the front seats of that car. He also

proved two sealed cardboards said to be containing the

bullets that were extracted by the doctors from the bodies

of the two said deceased at the time of their post-mortem,

which cardboards bore the signatures of said two doctors.

He has seized two letters (marked X and X/1 for

identification) from the house of the absconding accused

- 36 - Cr. Appeal (DB) No. 338 of 2015

Anil Yadav, under its seizure list (Exhibit 12/2), and also

obtained the call details, all dated 15.07.1998 of two

mobile phones bearing number 9835149725 and

9835149716 belonging to absconding accused Rajeev

Ranjan Singh and prepared its seizure list (Exhibit 15).

These call details were not proved but were marked as

exhibits for identification (vide Y to Y/43).

52. The Investigating Officer (P.W. 17) has further given

details of criminal antecedent of accused-Ramadhin

Singh, as also against other accused persons at paragraph

37 to 40 of the examination-in-chief.

53. A thorough cross-examination has been made by the

defence of this witness but nothing contrary to the

statement made in the examination-in-chief has come.

54. P.W. 18-Farida Khatoon is the widow of Manu

Ansari, who was murdered along with Binod Singh by fire

shots. She stated that there was halla that Binod Singh

and Manu (her husband) were murdered by firing by

Ramadhin Singh and Rajesh Singh. She went to place of

occurrence and found her husband and Binod Singh lying

dead inside the car, and at that time there was nobody

present there.

55. P.W. 19.- Magistrate Abhay Kumar Sinha has

recorded the statement of Sudhir Kumar (P.W.1) under

Section 164 Cr.P.C., which was written and signed by him

- 37 - Cr. Appeal (DB) No. 338 of 2015

and also signed by Sudhir Kumar Singh vide Exhibit

18/2.

56. The learned trial Court on the basis of oral as well as

documentary evidence available on record passed the

impugned judgment of conviction and order of sentence,

which is the subject matter of instant appeal.

DISCUSSION:

57. This Court, after having discussed the testimony of

witnesses, is now proceeding to consider the argument

advanced by learned counsel for the parties.

58. The first ground has been taken for assailing the

impugned judgment of conviction and order of sentence

that prejudice has been caused due to addition of charge

of commission of murder of the deceased Manu Ansari at

the stage of recording statement under Section 313

Cr.P.C.

59. Submission has been made by learned senior

counsel for the appellant that though the charge-sheet

was submitted showing the culpability of the appellant of

committing murder to Binod Kumar Singh and Manu

Ansari, but, charge has not been framed showing the

culpability of committing crime of murder of Manu Ansari

and the trial proceeded in absence of fact of commission of

crime of murder of Manu Ansari as the learned trial Court

has allowed the trial to proceed and only at the stage of

- 38 - Cr. Appeal (DB) No. 338 of 2015

recording statement under Section 313 Cr.P.C. the charge

has been altered by making addition in the charge of

committing crime of murder of Manu Ansari along with

deceased Binod Kumar Singh, therefore, serious prejudice

has been caused to the appellant and it vitiates the entire

trial as addition of charge results in grave miscarriage to

justice.

60. On the other hand, refuting the argument advanced

by learned senior counsel for the appellant, it has been

submitted by learned counsel for the State and learned

counsel for the informant that it is totally fallacious

argument and not tenable in the eye of law since the very

foundation of the instant case is murder of two persons,

namely Binod Singh and his driver Manu Ansari and if

due to inadvertence the name of Manu Ansari was left out,

which was later on added, it cannot be said to have

caused prejudice to appellant as it was well within the

knowledge of the appellant and further he cross examined

the witnesses on this issue during trial without any

demur. Contention therefore has been made that once the

parties are knowing about the fact merely due to

inadvertence the name of one of the deceased, namely,

Manu Ansari, is left out in the case, the same cannot be

construed to be the reason to raise the issue of prejudice.

- 39 - Cr. Appeal (DB) No. 338 of 2015

61. Further it has been stated that as per settled

proposition of law, the trial Court is empowered under

Section 216(4) of the Code of Criminal Procedure to

add/alter the charge at any stage of trial before judgment

is pronounced and while doing so the trial Court has only

to take care that prejudice is not caused to the appellant

and in this case admittedly no prejudice has been caused,

therefore, the appellant cannot be given the benefit of

inadvertence that occurred during framing of charge.

62. There is no dispute that if any enquiry by way of

criminal trial has been commenced it is the bounden duty

of the trial Court to have a fair and transparent

proceeding so as ample opportunity be given to the parties

to put forth their case.

63. Since the issue of prejudice caused to the defence

has been raised strongly by the appellant, this Court first

deems it fit and proper to have a glance to the meaning of

‗prejudice‟ in criminal jurisprudence. Any action will be

said to be prejudicial if it substantially affects the litigants'

right.

64. Reference in this regard be made to the judgment

rendered by Hon'ble Apex Court in the case of Rafiq

Ahmad @ Rafi vs State of Uttar Pradesh [(2011) 8 SCC

300], wherein at paragraphs 34, 35 and 36 it has been

held as under:

- 40 - Cr. Appeal (DB) No. 338 of 2015

34. In the light of the above principles, let us now examine the meaning of "prejudice". The expression has been defined in Black's Law Dictionary (8th Edn., p. 1218), as follows: "Prejudice.--1. Damage or detriment to one's legal rights or claims. See dismissal with prejudice, dismissal without prejudice under DISMISSAL. Legal prejudice.--A condition that, if shown by a party, will usu. defeat the opposing party's action; esp., a condition that, if shown by the defendant, will defeat a plaintiff's motion to dismiss a case without prejudice. The defendant may show that dismissal will deprive the defendant of a substantive property right or preclude the defendant from raising a defence that will be unavailable or endangered in a second suit.

Undue prejudice.--The harm resulting from a fact-trier's being exposed to evidence that is persuasive but inadmissible (such as evidence of prior criminal conduct) or that so arouses the emotions that calm and logical reasoning is abandoned.

2. A preconceived judgment formed without a factual basis; a strong bias."

35. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence. It is also a settled canon of criminal law that this has occasioned the accused with failure of justice. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. With the development of law, Indian courts have accepted the following protections to and rights of the accused during investigation and trial:

(a) The accused has the freedom to maintain silence during investigation as well as before the court. The accused may choose to maintain silence or make complete denial even when his statement under Section 313 of the Code of Criminal Procedure is being recorded, of course, the court would be

- 41 - Cr. Appeal (DB) No. 338 of 2015

entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law;

(b) Right to fair trial;

(c) Presumption of innocence (not guilty);

(d) Prosecution must prove its case beyond reasonable doubt.

36. Prejudice to an accused or failure of justice, thus, has to be examined with reference to these aspects. That alone, probably, is the method to determine with some element of certainty and discernment whether there has been actual failure of justice. "Prejudice" is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there is serious prejudice to either of these aspects and that the same has defeated the rights available to him under the criminal jurisprudence, then the accused can seek benefit under the orders of the court.

65. Therefore, the moot question which arises for

consideration is as to ‗whether for the above action i.e.,

addition of charge of commission of crime of murder of

deceased Manu Ansari at the stage of recording statement

under Section 313 Cr.P.C any prejudice has been caused to

the appellant?

66. In order to answer the issue, before going into the

factual aspect this Court deems it fit and proper to refer

herein the statutory provision as contained under Section

216 Cr.P.C., whereby the Court has been conferred power

to alter the charge or add any charge at any time before

the judgment is pronounced. For ready reference, Section

216 Cr.P.C is quoted as under:

- 42 - Cr. Appeal (DB) No. 338 of 2015

"216. Court may alter charge. -- (1) Any court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the court, to prejudice the accused or the prosecutor as aforesaid, the court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."

67. From the above provision of law, it is ample clear

that as per provision as made under Sub-Section (1) the

Court is empowered to alter or add the charge „at any time

before the judgment is pronounced‟. Further as per sub-

section (2) if such addition/alternation in charge is made

that has to be read over to the accused. In the case at

hand, from perusal of order by which addition in charge

has been made it is ample clear that the same was read

over to the appellant, so mandate of sub-section (2) has

fully been complied with. Sub Section (3) thereof provides

- 43 - Cr. Appeal (DB) No. 338 of 2015

that if the alteration or addition to a charge does not

cause prejudice to the accused in his defence, or the

persecutor in the conduct of the case, the Court may

proceed with the trial as if the additional or alternative

charge is the original charge. Sub-Section (4)

contemplates a situation where the addition or alteration

of charge will prejudice the accused and empowers the

Court to either direct a new trial or adjourn the trial for

such period as may be necessary to mitigate the prejudice

likely to be caused to the accused. Sub-Section 5 thereof,

provides that if the offence stated in the altered or added

charge is one for the prosecution of which previous

sanction is necessary, the Case shall not be proceeded

with until such sanction is obtained, but admittedly this

is not the case herein.

68. From the above provision of law, it is thus ample

clear that the it is the Court who is exclusively vested with

the power to add or alter the charge before

pronouncement of judgment subject to the condition that

it may not cause prejudice to the party and it is further

clear that no party has right to seek such addition or

alteration in charge by filing application as a matter of

right and if there is an omission in the framing of the

charge and comes to the knowledge of the Court trying the

offence, the power is vested with the Court, as provided

- 44 - Cr. Appeal (DB) No. 338 of 2015

under Section 216 Cr.P.C, to either alter or add the charge

and such power is available with the Court ‗at any time

before the judgment is pronounced‟. Reference in this

regard may be taken from the judgment as rendered by

the Hon'ble Apex Court in P. Kartikalakshmi Vs. Sri

Ganesh [(2017) 3 SCC 347] wherein at paragraph 6 it

has been held as under:

"6. Having heard the learned counsel for the respective parties, we find force in the submission of the learned Senior Counsel for Respondent 1. Section 216 CrPC empowers the Court to alter or add any charge at any time before the judgment is pronounced. It is now well settled that the power vested in the Court is exclusive to the Court and there is no right in any party to seek for such addition or alteration by filing any application as a matter of right. It may be that if there was an omission in the framing of the charge and if it comes to the knowledge of the Court trying the offence, the power is always vested in the Court, as provided under Section 216 CrPC to either alter or add the charge and that such power is available with the Court at any time before the judgment is pronounced. It is an enabling provision for the Court to exercise its power under certain contingencies which comes to its notice or brought to its notice. In such a situation, if it comes to the knowledge of the Court that a necessity has arisen for the charge to be altered or added, it may do so on its own and no order need to be passed for that purpose. After such alteration or addition when the final decision is rendered, it will be open for the parties to work out their remedies in accordance with law." [Emphasis supplied]

69. Likewise, the Hon'ble Apex Court in the judgment

rendered in Anant Prakash Sinha v. State of Haryana,

- 45 - Cr. Appeal (DB) No. 338 of 2015

[(2016) 6 SCC 105] at paragraphs 18 and 19 has been

pleased to hold as under:

"18. From the aforesaid, it is graphic that the court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 CrPC.

19. In addition to what we have stated hereinabove, another aspect also has to be kept in mind. It is obligatory on the part of the court to see that no prejudice is caused to the accused and he is allowed to have a fair trial. There are in-built safeguards in Section 216 CrPC. It is the duty of the trial court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial."

[Emphasis supplied]

70. This Court, on the basis of provisions as made under

Section 216 Cr.P.C and above judicial pronouncements and

discussions made herein above, is delving into the facts of

- 46 - Cr. Appeal (DB) No. 338 of 2015

the case to come to the conclusion as to whether any

prejudice has been caused to the appellant or not.

71. From the factual aspect involved in this case, it is

evident that appellant was initially charged to have

committed murder of one person, namely, Binod Singh, as

would appear from the charge framed against the present

appellant including other accused persons. But from the

proceeding of trial, it is evident from the fardbeyan itself

that the trial proceeded for a case of double murder, which

gets corroborated from the depositions of some of the

witnesses who have exclusively been examined/cross-

examined on the point of murder of deceased namely Manu

Ansari whose name was added later on in the charge.

72. For better appreciation, this Court deems it fit and

proper to go across the relevant portion of testimony of

prosecution witnesses so as to come to the conclusion that

whether the defence had knowledge of the fact of murder

of driver Manu Ansari or not and whether prejudice has

been caused only because name of said Manu Ansari was

not added in the charge at the initial stage.

73. P.W. 1-Sudhir Kumar in his testimony has specially

stated that he peeped into the bullet imbedded car and

found Binod Singh and his driver Manu Ansari dead with

profused bleeding. He claimed to have identified Rajeev

Ranjan Singh and Ramadhin Singh (appellant). This

- 47 - Cr. Appeal (DB) No. 338 of 2015

witness has thoroughly been cross-examined but the

appellant did not raise objection on this issue. For ready

reference relevant portion of deposition is quoted hereunder

as:

HkhM+ ds ihNs ge Hkh x, rks vkxs ns[ks fd ,d Ambassador dkj [kM+h FkhA ogha ij dkj ls lVs nqu cgknqj flag jksdj dg jgs Fks fd gekjs HkkbZ dks jkek/khu flag ,oa jktho jatu flag xksyh ekj fn;kA xkM+h esa Hkh xksyh yxk Fkk rFkk xkM+h esa >kaddj ns[ks rks xkM+h ds vUnj fcuksn flag ,oa muds Mªkboj eUuq dks [kwu ls yFkiFk ns[ksA

74. Likewise, P.W. 2-Nawal Kumar Singh, in his testimony

has specifically deposed that he along with crowd went at

the Ambassador car and saw Binod Singh and Manu

Ansari profusely bleeding inside the car. Relevant portion

of his testimony is quoted as under:

―..... HkhM+ ds lkFk ge Hkh xkM+h ds ikl igq¡ps rks ns[ks fcuksn flag ,oa mudk Mªkboj ,EcsLMj dkj esa [kwu ls yFkiFk iM+s FksA

75. Even the defence has cross-examined this witness

about the said driver, Manu Ansari, wherein it has been

deposed as under:

Mªkboj dkSu lk diM+k iguk Fkk ugha dg ldrs gSA fcuksn flag iStkek] dqrkZ igus FksA [kqu yxk gksus ds dkj.k iStkek dqrkZ dk jax ugha crk ldrk gw¡A

76. Likewise P.W. 5-Dilip Kumar Singh at paragraph 2

has deposed that when he reached Dugdha, he heard in

office that Binod Singh and his driver has been murdered.

When he reached Bhagat Singh Chowk, he found the dead

- 48 - Cr. Appeal (DB) No. 338 of 2015

bodies of Binod Singh and his driver. The relevant portion

of testimony is quoted as under:

eSa nqX/kk igq¡pk rks vkWfQl esa gYyk lqus fd fcuksn flag ,oa muds Mªkboj dk gR;k gks x;k gSA tc eSa Hkxr flag pkSd igq¡ps rks ogk¡ fcuksn flag ,oa muds Mªkboj dk yk'k ns[ksA ogk¡ ij lq/khj flag dks ns[ksA dkQh yksx FksA

77. P.W. 6-Debashish Kumar Ghoshal in his examination-

in-chief has deposed that Binod Singh and his driver Manu

Ansari were profusely bleeding inside the Ambassador car;

and Dun Bahadur Singh, who was there at some distance,

arrived running and went to call on doctor, who arrived

and declared the two victims as dead. The relevant portion

of his testimony reads as under:

dkQh yksx xkM+h ds lehi x,A eSa Hkh muds lkFk bEcsLMj ds ikl x;k ,oa xkM+h esa >kad dj ns[kk rks esjk ekfyd fcuksn dqekj flag ,oa euq vUlkjh t[eh gkyr esa [kwu ls yFkiFk iM+s FksA

78. P.W. 9-Satender Kumar Singh who is seizure witness

has put his signature over the inquest report of driver

Manu Ansari, which reads as under:

Mªkboj dk Hkh e`R;q leh{kk i= cuk Fkk ftl ij xokg us gLrk{kj fd;k Fkk] ftls igpkukA bls izn'kZ&2@1 vafdr fd;kA

79. Likwise P.W. 10-Dun Bahadur Singh, the Informant in

his testimony has stated about the murder of said driver

Manu Ansari at paragraph 1 of his examination-in-chief

and further in cross-examination he has stated that

- 49 - Cr. Appeal (DB) No. 338 of 2015

besides Binod Singh and Driver nobody was there in the

vehicle. The relevant portion of cross-examination is quoted

as under:

fcuksn flag ,oa Mªkboj ds vykok xkM+h esa vkSj dksbZ ugha FkkA muds lkFk eSa ugha x;kA

80. P.W. 11-Dr. Shailendra Kumar, has conducted post

mortem of deceased, Manu Ansari, details of which has

been quoted in preceding paragraphs, here also the

appellant raised no objection as such it can safely be said

that it was well within the knowledge of the appellant about

the commission of murder of Manu Ansari.

81. Now coming to the testimony of Investigating Officer,

Ramnath Tiwari, who at paragraph 7 and 16 has stated

that the inquest report of deceased Manu Ansari was

prepared by him where he put his signature. Relevant

portion of his testimony is reproduced hereunder as:

;g e`R;q leh{kk izfrosnu eks0 euq valkjh e`rd Mªkboj dk gSA ;g izfrosnu esjs }kjk dkcZu ds lkFk rS;kj fd;k tks esjh fy[kkoV ,oa gLrk{kj esa gSA ;g mldh dkcZu izfr gS tks ewy ds lkFk ,d gh ckj rS;kj dh x;h gSA bls izn'kZ&11 vafdr djsa rFkk ;g e`R;q leh{kk izfrosnu e`rd fcuksn flag dk dkcZu ,oa ewy ,d gh le; rS;kj fd;k x;k tks esjh fy[kkoV ,oa gLrk{kj esa gS] igpkurk gw¡A bls izn'kZ&11@1 vafdr djsAa

blds ckn dkaM ds ?kVukLFky dk fujh{k.k fd;kA bl dkaM dk ?kVukLFky drjkl ls jktxat tkus okyh iDdh lM+d ij vofLFkr gSA tks 'kfgn Hkxr flag pkSd ls djhc 50 xt nf{k.k lM+d ds if'peh fdukjs ij vofLFkr gSA blh lM+d ij e`rd fcuksn flag ,oa muds Mªkboj e`rd eks0 le'kqy mQZ eUuq valkjh dks uketn vfHk;qDrksa ,oa ,d vKkr ds }kjk Lokpkfyr vXus;kL=ksa ls xksyh ekj dj gR;k djus dh ckr crk;h x;hA

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82. From the testimony of witnesses, in particular P.W. 1-

Sudhir Kumar, P.W. 2-Nawal Kumar Singh, P.W. 5-Dilip

Kumar Singh, P.W. 6-Debashish Kumar, P.W. 10-Dun

Bahadur Singh (Informant), P.W. 11-Dr. Sailendra Kumar

Singh, the doctor who conducted post-mortem of deceased

Manu Ansari and P.W. 17-Ramnath Tiwary -the

Investigating Officer as discussed in the preceding

paragraphs it is evident that the appellant was well aware

of the fact of commission of murder of said Manu Ansari.

Furthermore, the defence has cross-examined the

witnesses with respect to commission of murder of Manu

Ansari also, which took place in continuation of the murder

of Binod Singh.

83. On the basis of above factual aspect coupled with the

statutory provision as contained under Section 216 Cr.P.C.

and the judicial pronouncements, this Court is now

proceeding to examine the contention raised on behalf of

the appellant that due to addition of framing of charge at

the stage of recording statement under Section 313 Cr.P.C.

to the effect that the name of Manu Ansari, driver of the

deceased Binod Kumar Singh, both have died in the same

transaction, has caused any prejudice to the appellant or

not.

84. So far the power conferred upon the trial Court

regarding alteration/addition of charge is concerned, the

- 51 - Cr. Appeal (DB) No. 338 of 2015

same cannot be said to be not available in view of provision

of Section 216 Cr.P.C.

85. Furthermore, this Court, in order to gather the fact as

to whether this fact was known to the accused person even

though the name of Manu Ansari was not in the order

framing charge, has considered the testimony of relevant

witnesses and also the documentary evidence and found

therefrom the appellant was well aware of this fact and

cross-examined the witnesses on this point also, as

discussed in the preceding paragraphs.

86. So far documentary evidence is concerned, it appears

from the post mortem reports (Ext4 and 5), that deceased

Binod Singh and his driver Manu Ansari met a homicidal

death in a same transaction of crime.

87. It is relevant to mention here that the said

documents (post mortem report of deceased Binod Singh

and Manu Ansari) were marked as exhibit without any

objection by the appellant, meaning thereby the accused

was very much known about the commission of crime of

murder of Binod Singh and his driver, namely, Manu

Ansari and they accepted these documents.

88. PW-11 and 16 are the doctors who conducted the

post-mortem on the dead bodies of the Manu Ansari and

Binod Singh have recorded the finding that the death of

both of deceased persons were due to multiple bullet

- 52 - Cr. Appeal (DB) No. 338 of 2015

injuries and the bullet which caused the injuries were fired

within tattooing range. It further appears from the

testimony of P.W. 11 and 16 that they have been cross-

examined by the appellant at length but neither any doubt

nor question was raised on the issue of the murder of

Manu Ansari, who was also murdered with Binod Singh.

89. It is pertinent to mention here that on previous

occasion the appellant has raised the aforesaid issue

before the learned Single Judge of this Court by filing

Cr.M.P. No.10 of 2013 wherein the Hon'ble Single Judge

has negated the claim, the relevant portion of order is

reproduced as under:

"This application is directed against the order dated 13.02.2013 passed in Sessions Trial No.07 of 2000, whereby and whereunder the court after making alteration in the charge denied the opportunity to the defence to cross- examine the witnesses examined earlier on behalf of the prosecution.

Here in the instant case, as has been indicated above, it appears that the petitioners were initially charged to have committed murder of one person, but the trial virtually proceeded taking it that it is a case of double murder and, therefore, some of the witnesses are exclusively on the point of murder of the deceased, namely, Manu Ansari whose name was added later on in the charge and all those witnesses had already been cross examined by the defence.

In such situation, the court seems to have rightly passed order of not summoning or recalling the witnesses already been cross-examined by the defence. Accordingly, I do not find any illegality with the order impugned and hence, this application stands dismissed."

- 53 - Cr. Appeal (DB) No. 338 of 2015

90. The aforesaid order, passed in Cr.M.P. 10 of 2013,

has been assailed before the Hon'ble Supreme Court by

filing Special Leave to Appeal (Crl.) 2819 of 2013 which

was dismissed vide order dated 12.08.2014 as no ground

was found by the Hon'ble Apex Court to interfere with and

as the order by which the name of Manu Ansari was

added by the learned trial Court had reached to its finality

even by Hon'ble Apex Court.

91. This Court, on the basis of aforesaid factual aspect

and keeping the position of law regarding prejudice said to

be caused, is of the view that it is not such a case where

merely because the name of one of the deceased, namely

Manu Ansari has been added at the stage of recording

statement under Section 313 Cr.P.C. prejudiced is being

caused to the appellant, since the appellant was not only

knowing the fact but they have contested the case of

commission of murder of driver Manu Ansari as the

appellant cross-examined the witnesses on this issue and

accepted the documentary evidence in this regard.

92. Furthermore the matter has been settled by Hon'ble

Apex Court in Special Leave to Appeal (Crl.) 2819 of 2013

vide order dated 12.08.2014. Therefore, it cannot be said

that the appellant was not known about the murder of said

Manu Ansari and for the first time at the time of recording

- 54 - Cr. Appeal (DB) No. 338 of 2015

statement under Section 313 Cr.P.C, it came to the

knowledge of the appellant.

93. Thus in view of the aforesaid discussion, the

contention of the learned senior counsel, that failure to

frame charges for the deceased Manu Ansari at the stage of

313 Cr.P.C. has caused prejudice to the appellant so as to

vitiate the entire trial, is not correct.

94. The second ground raised by the learned counsel for

the appellant is that there are so many contradictions in

the testimony of witnesses which vitiate the entire

prosecution case.

95. Learned senior counsel for the appellant referring to

the testimony of informant (P.W. 10) and P.W. 13, in order

to establish the fact that presence of informant at the place

of occurrence was improbable at the time of commission of

crime, has submitted that P.W. 13 in his cross-examination

has categorically deposed that at the time of occurrence the

informant was at home with him, as such presence of

informant at the time of occurrence is improbable.

96. This Court, in order to reach to conclusive finding in

this regard again has gone through the testimony of

witnesses, in particular the testimony of P.W. 13-Manoj

Kumar Singh, who in his cross-examination has stated that

brother Sakaldeo Singh (who was not examined) informed

him about the incidence. He went to the place of

- 55 - Cr. Appeal (DB) No. 338 of 2015

occurrence alone which took half an hour. When he

reached the place of occurrence, Sakaldeo Singh and Dun

Bahadur Singh (informant) was present there. He further

deposed that when Sakaldeo Singh informed at that time

Dum Bahar Singh (Informant) was at home. For ready

reference cross-examination of P.W. 13-Manoj Kumar Singh

is quoted as under:

?kVuk ds le; eSa ?kj ij Fkk ogh HkkbZ lkgc ldynso flag us ?kVuk dk lwpuk fn,A ml le; lqcg ds djhc 09-00 cts gkax s As eSa ?kVukLFky ij vdsys x;kA ?kVukLFky ij igq¡pus vk/kk ?kaVk yxk gksxkA eSa tc igq¡pk ml le; ldynso flag] nqu cgknqj flag igys igq¡ps FksA nqu cgknqj flag dks fudyus ugha ns[ks FksA ldynso flag tc lwpuk fn;s ml le; nqu cgknqj flag ?kj ij FksA

97. From the testimony of P.W. 13, it is quite evident that

P.W13-Manoj Kumar is a hearsay witness who at one hand

has deposed that when Sakaldeo Singh (who was not

examined) informed him about the incident he was at home

and further at that time Dun Bahadur Singh (informant)

was also at home but he also deposed that when he

reached the place of occurrence Dun Bahadur Singh

(informant) and Sakaldeo Singh was already present there.

Thus, the version of this witness, P.W. 13, does not create

any doubt about the presence of P.W.10 (informant) at the

time of occurrence on the spot.

- 56 - Cr. Appeal (DB) No. 338 of 2015

98. Now this Court is coming to the testimony of other

witnesses on this point, in particular the testimony of

informant, about whom P.W. 13 deposed that at the time of

incidence he was at his home.

99. P.W. 10-Dun Bahadur Singh in his testimony in

unequivocal term has deposed that Binod Singh had left

his house for going to Katras coal dump on his Ambassador

car and this witness (informant) had also left his house for

same destination on his own car and at Bhagat Singh

Chowk, he was moving about 50 yards behind the car of

Binod Singh when, one Maruti van overtook their car and

stopped in front of the car of Binod Singh; and three

persons came out of the Maruti van and started firing at

car of Binod Singh, which resulted into death of Binod

Singh and his driver Manu Ansari. It is pertinent to note

here that defence failed to shake the testimony of informant

on this point, as would be evident from the testimony

recorded in cross-examination of witnesses. Relevant

portion of testimony is quoted as under:

―?kVuk 15-07-1998 dh gSA le; 08-30 cts lqcg dk FkkA eSa vius

veZnk dkj ls ?kj ls fudyk Fkk ,oa esjk NksVk HkkbZ fcuksn flag ,EcsLMj dkj ls fudyk FkkA geyksx nksuksa drjkl dksy MEi tk jgs FksA drjkl cktkj esa esjk ,oa fcuksn dk xkM+h djhc 100 xt vkxs&ihNs HkhM+ ds dkj.k gks x;k FkkA 50 xt ds vUrj ij ge nksuksa Hkxr flag pkSd igq¡psA genksuksa HkkbZ dks ,d ek:fr oSu ikj fd;kA og ek:fr fcuksn flag ds xkM+h ds vkxs tkdj :dhA mlesa

- 57 - Cr. Appeal (DB) No. 338 of 2015

ls rhu vkneh fudydj fcuksn flag ds xkM+h ij Qk;fjax 'kq: dj fn;kA Qk;fjax ds Mj ls eSa 50 xt ihNs gh xkM+h jksd fn,A ......‖

100. Likewise, P.W. 1-Sudhir Kumar Singh, in his

deposition has stated that at the relevant time when he

reached at Saheed Bhagat Singh chowk (ie. Place of

occurence) on his scooter, he saw that a Maruti car was

speedily going towards Rajganj on which Ramadhin Singh

and Rajeev Ranjan Singh were seated on backseat and a

boy having beard and cap was sitting on the front seat of

the car. He specifically deposed that he went to the place

of occurrence and heard Dun Bahadur Singh, crying and

saying that Ramadhin Singh and Rajeev Ranjan Singh

murdered his brother, Binod Singh by making firing. For

ready reference the relevant portion of testimony as at

paragraph 2 is reproduced as under:

HkhM+ ds ihNs ge Hkh x, rks vkxs ns[ks fd ,d Ambassador dkj [kM+h FkhA ogha ij dkj ls lVs nqu cgknqj flag jksdj dg jgs Fks fd gekjs HkkbZ dks jkek/khu flag ,oa jktho jatu flag xksyh ekj fn;kA xkM+h esa Hkh xksyh yxk Fkk rFkk xkM+h esa >kaddj ns[ks rks xkM+h ds vUnj fcuksn flag ,oa muds Mªkboj eUuq dks [kwu ls yFkiFk ns[ksA

101. The testimony of this witness remain intact in cross-

examination as he specifically deposed that at the time of

incidence he was present at the place of occurrence.

102. P.W. 6-Debashish Kumar Ghoshal, who is an eye-

witness to the occurrence has specifically deposed that at

- 58 - Cr. Appeal (DB) No. 338 of 2015

the relevant time he was going towards Sijua on his scooter

and when he reached near Saheed Bhagat Singh Chowk, he

heard fire shots; and that he got down from his scooter and

saw that three persons were firing indiscriminately on a

white coloured Ambassador car out of whom, he identified

two, namely, Rajeev Ranjan and Ramadhin Singh;

thereafter, the assailants fled away, waving their arms. This

witness went to the spot and saw that Binod Singh and

driver Manu Ansari were profusely bleeding inside the

Ambassador car; and Dun Bahadur Singh, who was there

at some distance, arrived running and went to call on

doctor, who arrived and declared the two victims as dead.

dkQh yksx xkM+h ds lehi x,A eSa Hkh muds lkFk bEcsLMj ds ikl x;k ,oa xkM+h esa >kad dj ns[kk rks esjk ekfyd fcuksn dqekj flag ,oa euq vUlkjh t[eh gkyr esa [kwu ls yFkiFk iM+s FksA

ogk¡ ij nqu cgknqj flag] ekfyd ds cM+s HkkbZ Hkh ogk¡ vk x,A os thi ls gLirky x, ,oa MkDVj mek 'kadj flag dks yk;sA MkDVj ns[kdj nksuksa t[eh dks e`r ?kksf"kr dj fn,A

103. It is evident from the testimony of eye witnesses, i.e.,

1, 6 and 10 (informant), who are consistent in their

testimony, that the informant was at the place of

occurrence. Therefore, this Court is of the view that the

presence of informant at the place of occurrence is quite

natural because they were going to their work place. Even

the said Manoj Kumar Singh (P.W. 13) has deposed that

- 59 - Cr. Appeal (DB) No. 338 of 2015

when he reached the place of occurrence the informant-

Dun Bahadur Singh was already present at the place of

occurrence.

104. Be that as it may, in the aforesaid aspect we would

like to mention that as per settled proposition of law

―eyewitness‖ account would require a careful independent

assessment and evaluation for its credibility which should

not be adversely prejudged, making any other evidence.

105. The testimony or evidence must be tested for its

inherent consistency and inherent probability of the story

and consistency with the other evidences held to be credit

worthy then the probative value of such evidence becomes

eligible to be put into the scales for a cumulative

evaluation.

106. In the case at hand, all the eye witnesses, P.W. 1, 6

and 10 are consistent in their testimony that the informant

at the time of occurrence was at the place of occurrence,

therefore there is no reason to believe that the informant

was not at the place of occurrence. Furthermore, the

defence has failed to shake the testimony of these eye

witnesses in cross-examination and their depositions

remain wholly intact even in the cross-examination.

107. Therefore, as per the factual aspects involved in this

case coupled with the case laws laid down by Hon'ble Apex

Court, this Court is of the view that contention of the

- 60 - Cr. Appeal (DB) No. 338 of 2015

learned senior counsel for the appellant regarding presence

of informant on the strength of testimony of P.W. 13-Manoj

Kumar Singh is improbable, is hereby negated.

108. Another contention as raised by the learned

senior counsel that there is inter-se contradiction between

the eye-witnesses with respect to description of vehicle i.e.,

P.W. 1 has said that white color Maruti car was used in

the commission of crime whereas P.W.10 has stated that a

Maruti Van which overtook the vehicle of deceased and

firing was made from the Maruti car as such it is alleged

that it is a major contradiction among the self-proclaimed

eye-witnesses on the point of vehicle used in the

commission of crime, therefore submission has been made

that the story of prosecution appears to be doubtful.

109. In response to the contention of the appellants it

is pertinent to emphasize that it is settled legal proposition

that not every discrepancy or contradiction matters for

assessing the reliability and credibility of a witness, unless

the discrepancies and contradictions are so material that it

destroys the substratum of the prosecution case.

110. Law is settled in this regard that merely because

there is some contradiction and discrepancies in the

testimonies, the same cannot be enough to vitiate the

prosecution story, as has been held by the Hon'ble Apex

Court in the case of Mukesh Kumar v. State (NCT of

- 61 - Cr. Appeal (DB) No. 338 of 2015

Delhi), reported in (2015) 17 SCC 694, wherein, at

paragraph-8, it has been held as under: --

"8. While the slight difference in the initial version of the prosecution and the FIR version has been reasonably explained by the cross-examination of PW 6, it is our considered view that minor discrepancies, embellishments and contradictions in the evidence of the eyewitnesses do not destroy the essential fabric of the prosecution case, the core of which remains unaffected. Even if we have to assume that there are certain unnatural features in the evidence of the eyewitnesses the same can be reasonably explained on an accepted proposition of law that different persons would react to the same situation in different manner and there can be no uniform or accepted code of conduct to judge the correctness of the conduct of the prosecution witnesses i.e. PWs 1 and 2. The relation between PWs 5 and 6 and PWs 1 and 2 and the deceased, in our considered view, by itself, would not discredit the testimony of the said witnesses. There is nothing in the evidence of PWs 1 and 2 which makes their version unworthy of acceptance and their testimony remains unshaken in the elaborate cross-examination undertaken."

111. Likewise, the Hon'ble Apex Court in the case

of Shyamal Ghosh v. State of West Bengal, reported

in (2012) 7 SCC 646, wherein, at paragraphs-46 &

49, it has been held as under:

"46. Then, it was argued that there are certain discrepancies and contradictions in the statement of the prosecution witnesses inasmuch as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused. It is true that there is some variation in the timing given by PW 8, PW 17 and PW 19. Similarly, there

- 62 - Cr. Appeal (DB) No. 338 of 2015

is some variation in the statement of PW 7, PW 9 and PW

11. Certain variations are also pointed out in the statements of PW 2, PW 4 and PW 6 as to the motive of the accused for commission of the crime. Undoubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution.

49. It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused.

112. Indeed, in the instant case there is some

contradiction in the evidence of inter-se eyewitnesses'

evidence, whether the vehicle of the assailants was van

or car or what was its colour. However, in our view

aforesaid contradiction cannot be termed as major

contradiction in the view of the judgment as quoted

herein above. Further the moment when such type of

incident occurs in front of any person then at that

time his mindset is not in normal stage and when they

give their testimony in the Court, he just memorising

the incident and states in front of trial court and as

such in that situation the Court cannot expect that

such witnesses will testify graphic detail of the

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incident. In the instant case all the eyewitness

substantiated the commission of aforesaid crime by

the car and whether it is van or Maruti car it does not

have effect on the prosecution case inasmuch as all

the eye witnesses (P.W. 1, 6 and 10) coherently

deposed that it was Maruti Vehicle (either car or van)

by which assailants intercepted the Ambassador Car

of the deceased and started firing indiscriminately

upon the Ambassador Car resulting into the death of

two persons, namely, Binod Singh and his driver

Manu Ansari.

113. It is pertinent to note here that the incident was of

the year 1998 and the testimony of the witnesses have

been recorded after a decade of ten years, then in such

circumstance if there is minor discrepancy in between

their testimony with respect to Maruti Car or Maruti Van

that will not vitiate the entire prosecution case. It is but

natural to have some discrepancy and on this ground the

prosecution case cannot be brushed aside rather version

of the eye witness-P.W. 10 appears natural.

114. Reference in this regard be made to the judgment

rendered by Hon'ble Apex Court in the case of Dhirendra

Singh @ Pappu Vs, State of Jharkhand 2021 SCC

OnLine SC 155, wherein it has been held as under:

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11. .... There may be some contradiction/contradictions with respect to the role attributable to the appellant-accused and/or overt act by the appellant-accused. However, as rightly observed by the High Court, the deposition was recorded after a period of approximately 15 years, there are bound to be some minor contradiction /contradictions. However, it is also required to be noted that the appellant has been convicted for the offences punishable under Section 302 with the aid of Section 34 IPC. Therefore, when the presence of the appellant-accused at the time of incident and his active participation has been established and proved, it cannot be said that both, the learned Trial Court as well as the High Court, have committed any error in convicting the appellant-accused under Section 302 read with Section 34 IPC.

115. Furthermore, after more than a decade the

witnesses have been asked to give description of the

incidence and in course thereof, if there is minor

discrepancy in between their testimony, which is not

even vital in nature that will not vitiate the entire

prosecution case. It is but natural to have some

discrepancy and on this ground the prosecution case

cannot be vitiated.

116. The learned trial Court on the basis of the aforesaid

principle if discarded the aforesaid defence submission,

which according to our considered view, cannot be said to

suffer from an error. In view of the aforesaid rulings of the

Hon'ble Supreme Court vis-à-vis the aforesaid submissions

of the learned defence counsel, this Court is also of opinion

that it is not significant at all to distinguish between the

vehicle used by the assailants which was either 'Maruti Van

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or Maruti Car', in view of clinching evidence the facts

remain to take into consideration that this eye-witness

(P.W.-10) had seen the occurrence from his bare eyes that

the appellant was one of the three assailants who fire

indiscriminately upon the deceased persons, Binod Singh

and Manu Ansari, by getting down from a vehicle of Maruti,

which is either a Van or a Car. The vehicle used was

'MARUTI' and the case of the prosecution and the version of

P.W.-10 (the informant, who was also an eye-witness)

cannot be discarded by contending that at one place the

P.W.-10 is saying about a Maruti Van and another place,

he is talking about Maruti car and therefore, such

submission advanced on behalf of the appellant does not

help the appellant to disbelieve his direct involvement in

commission of crime.

117. Further ground for assailing the impugned judgment

by the appellant is that that all the self-proclaimed eye-

witnesses are chance witnesses and the I.0. (P.W.17) had

made no investigation into reason of witness for being

present at the place of occurrence and as such it appears

that all such self-proclaimed eye-witnesses are planted

witnesses.

118. Law is settled in this regard that the chance witness is

one who happens to be present at the place of occurrence

by coincidence or chance. A person walking on street

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witnessing the commission of an offence can be a chance

witness. Merely because a witness happens to see an

occurrence by chance, his testimony cannot be eschewed

though little more scrutiny may requires at times.

119. The Hon'ble Apex Court while dealing with the

reliability of chance witness in the case of State of A.P. v.

K. Srinivasulu Reddy, (2003) 12 SCC 660 at paragraph

13 held as under:

"13. Coming to the plea of the accused that PWs 4 and 9 were "chance witnesses" who have not explained how they happened to be at the alleged place of occurrence, it has to be noted that the said witnesses were independent witnesses. There was not even a suggestion to the witnesses that they had any animosity towards any of the accused. In a murder trial by describing the independent witnesses as "chance witnesses" it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers- by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."

120. In Ismail v. Momin (AIR 1941 Privi Council 11) it

was held that though the chance witness is not

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necessarily a false witness, is proverbially rash to act upon

such evidence. In the case of a chance witness, if that

witness gives sufficient reasons for his presence, that

evidence can be accepted.

121. Further crime like murder is not committed with

previous notice to witnesses soliciting their presence and if

murder is committed in the street, only passers-by will be

the witness and their evidence cannot be brushed aside

with suspicion on the ground that they are mere ―chance

witnesses‖.

122. Reference in this regard may be taken from the

judgment rendered by the Hon'ble Apex Court in Ramvir

Vs. State of U.P. (supra) and Sarvesh Narain Shukla

Vs. Daroga Singh (supra).

123. Thus, it is evident from the aforesaid proposition of

law that even the evidence of chance witness cannot be

out-rightly rejected rather the evidence of such witness

requires a very cautious and close scrutiny.

124. On the touchstone of the aforesaid proposition of

law, this Court proceeded on the premise of aforesaid

settled proposition of law to examine the testimony of such

witnesses and found therefrom that they have disclosed

the entire fact having no interest. Further they remain

consistent in their cross-examination.

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125. In the instant case the eyewitnesses examined in the

trial cannot be said to be chance witnesses as they were

the residents of the nearby locality and at about 8.45

morning these eyewitnesses were moving around for their

respective daily chorus. The incident had happened near a

Chowk and usually such type of place is common place for

the daily commuters and passer-by. As such the time of

occurrence being broad daylight, the presence of the

eyewitnesses at the place of occurrence is quite natural, as

would be evident from the testimonies of the witnesses

namely P.W.1 (Sudhir Kumar); P.W.6 (Debashish Kumar

Ghoshal) and P.W.10 (Dun Bahadur Singh), at the cost of

repetition, as discussed in the foregoing paragraphs, it is

found that P.W.I (Sudhir Kumar) in his cross examination

has stated that he went to Katras Coal Dump because he

was working there at that point of time. P.W.6 (Debashish

Kumar Ghoshal) has stated categorically that on the date

of incident he had gone to Katras for the work of Binod

Singh for loading the coal truck and weighing it and on

being asked he further stated in his cross examination

that on the date of incident he had gone to Katras coal

dump. P.W.10 (Dun Bahadur Singh) in a very natural

manner stated in his examination-in-chief explicitly that

on 15.07.1998 at about 08.30 a.m. he in his own vehicle

and his younger brother Binod Singh (Deceased) in his

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Ambassador car left their home for Katras Coal Dump. At

Katras Bazaar, due to crowd, both the vehicles got

separated with a distance of about 100 yards. When they

reached Bhagat Singh Chowk, the distance between two

vehicles was about 50 yards. One Maruti Van rushed to

overtake their car and stopped at front of the car of Binod

Singh. Subsequently, three person came out of that

vehicle and started firing at the vehicle of Binod Singh. In

his cross examination, on being asked about relevance of

his presence at the place of occurrence, he narrated the

same story. Therefore, since the presence of the P.W.-10 at

the spot is undisputed and without any doubt, he is a

natural witness. Therefore, from the aforesaid depositions

and testimonies of these witnesses it is found that the

contention raised on behalf of the appellant that these eye

witnesses are planted witness because of chance witness

does not hold good.

126. The witnesses being the residents of the locality,

their presence at the place of occurrence could not be

considered unnatural. They had no cause to give false

evidence. Accordingly, their testimonies cannot be

discarded.

127. Therefore, in the backdrop of the aforesaid

discussion the contention of the senior counsel that all the

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self-proclaimed eye-witnesses are planted witnesses is

hereby negated.

128. Further contention as raised by the learned senior

counsel that P.W.12 Dr. Uma Shankar Singh has not

supported the version of the informant as the informant

has deposed that he came in his jeep at the residence of

Dr. Umashankar Singh and brought him to the place of

occurrence whereas P.W. 12-Uma Shankar Singh has

stated he learnt about the occurrence on the telephone

message given by the wife of deceased Binod Kumar Singh

as such the story of informant is fallacious.

129. In this context of the argument at this juncture it

will be purposeful to revisit the testimony of the informant

(PW10). In his testimony the informant has stated that

just after the occurrence, he had visited the place of Dr.

Uma Shankar who arrived at place of occurrence and

declared both the victims as dead.

130. However, Dr. Uma Shankar (PW12) in his cross-

examination denied to have so stated before Investigating

Officer that while he was leaving his house, Dun Bahadur

Singh arrived at his house and told that Ramadhin Singh,

Rajeev Ranjan Singh and one unknown man have fired

upon Binod Singh and requested him to hurry up to reach

at Bhagat Singh Chowk.

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131. But his earlier statement has been proved by Ram

Nath Tiwari, the Investigating Officer (PW17) at paragraph

19 of his evidence who proved that Dr. Uma Shankar

Singh had so stated that on getting information when he

started to go, then Dun Bahadur Singh arrived and told

that hurry up, Binod Singh was fired upon by Rajeev

Ranjan Singh and Ramadhin Singh and one unknown

man at Bhagat Singh Chowk. Thus, it is evident from the

statement of I.O. that P.W.12 in his statement under

section 161 Cr.P.C before the police has categorically

supported the version of P.W.10.

132. However, it is settled proposition of law that evidence

of the eyewitness cannot be discarded on the basis of a

hostile witnesses evidence.

133. Therefore, on the basis of aforesaid factual aspect

coupled with case laws, the contention of senior counsel is

hereby negated.

134. Learned senior counsel for the appellant has

further raised the ground that no plausible explanation

has been put forth by the prosecution that why the FIR

which had been registered on the same day at 11.30 AM

then why it reached the Court next day and in such

circumstances the recording of the Fardbayan at the

place of occurrence become doubtful.

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135. In this context it is important to mention here

that before such a contention is countenanced, the

accused must show prejudice having been caused by

delay of dispatch of the FIR to the Magistrate concern.

Reference in this regard may be taken from the Judgment

rendered by the Hon'ble Apex Court in Sandeep v. State

of U.P. [(2012) 6 SCC 107 at paragraph 62 and 63 held

as under:

"62. It was also feebly contended on behalf of the appellants that the express report was not forwarded to the Magistrate as stipulated under Section 157 CrPC instantaneously. According to the learned counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11- 2004 as FIR No. 116 of 2004 and it was altered on 20-11- 2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh v. State of Punjab [(1972) 2 SCC 640 : 1973 SCC (Cri) 55] wherein this Court has clearly held that (SCC p. 645, para 8) where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.

63. Applying the above ratio in Pala Singh [(1972) 2 SCC 640 : 1973 SCC (Cri) 55] to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such

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circumstances we do not find any infirmity in the case of the prosecution on that score. In fact the above decision was subsequently followed in Sarwan Singh v. State of Punjab [(1976) 4 SCC 369 : 1976 SCC (Cri) 646] , Anil Rai v. State of Bihar [(2001) 7 SCC 318 : 2001 SCC (Cri) 1009] and Aqeel Ahmad v. State of U.P. [(2008) 16 SCC 372 : (2010) 4 SCC (Cri) 11] "

136. Further, the Hon'ble Apex Court in the

judgment rendered in the case of Sheo Shankar Singh

Vs. State of U.P. [(2013) 12 SCC 539], at paragraph 30

held as under:

"30. ----- Further, a perusal of the impugned judgments of the High Court as well as of the trial court discloses that no case of any prejudice was shown nor even raised on behalf of the appellants based on alleged violation of Section 157 CrPC. Time and again, this Court has held that unless serious prejudice was demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating effect on the case of the prosecution. Therefore, the said submission made on behalf of the appellants cannot be sustained."

137. Similarly, the Hon'ble Apex Court in the case of

Sandeep v. State of U.P. [(2012) 6 SCC 107 at

paragraph 62 and 63 held as under:

"62. It was also feebly contended on behalf of the appellants that the express report was not forwarded to the Magistrate as stipulated under Section 157 CrPC instantaneously. According to the learned counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11- 2004 as FIR No. 116 of 2004 and it was altered on 20-11- 2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh v. State of Punjab [(1972) 2 SCC 640 : 1973 SCC (Cri) 55] wherein this Court has clearly held that (SCC p.

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645, para 8) where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.

63. Applying the above ratio in Pala Singh [(1972) 2 SCC 640 : 1973 SCC (Cri) 55] to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such circumstances we do not find any infirmity in the case of the prosecution on that score. In fact the above decision was subsequently followed in Sarwan Singh v. State of Punjab [(1976) 4 SCC 369 : 1976 SCC (Cri) 646] , Anil Rai v. State of Bihar [(2001) 7 SCC 318 : 2001 SCC (Cri) 1009] and Aqeel Ahmad v. State of U.P. [(2008) 16 SCC 372 : (2010) 4 SCC (Cri) 11] "

138. In the instant case, from the perusal of material

available on record, it is apparent that just after

occurrence a formal FIR was drawn on the basis the

Fardbeyan recorded at the place of occurrence itself and

FIR was sent to concerned Magistrate next day and as

such no undue delay has been caused which needs

explanation. Therefore, it is evident that no prejudice has

been caused to the appellant by virtue of the said delay.

139. This Court is convinced of the prosecution

version's truthfulness and trustworthiness of the

witnesses, the absence of an explanation may not be

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regarded as detrimental to the prosecution case. It would

depend on the facts and circumstances of the case.

Reference in this regard may be taken from the judgment

as rendered by the Hon'ble Apex Court in Ombir Singh v.

State of U.P., reported in (2020) 6 SCC 378, relevant

paragraph of which is quoted as under:

4. There was undoubtedly a delay in compliance with Section 157 of the Code, as the FIR was received in the office of the Chief Judicial Magistrate with a delay of 11 days. Effect of delay in compliance with Section 157 of the Code and its legal impact on the trial has been examined by this Court in Jafel Biswas v. State of W.B. [Jafel Biswas v. State of W.B., (2019) 12 SCC 560 : (2019) 4 SCC (Cri) 455] after referring to the earlier case laws, to elucidate as follows : (SCC pp. 565-67, paras 18-21) "18. In State of Rajasthan [State of Rajasthan v. Daud Khan, (2016) 2 SCC 607 : (2016) 1 SCC (Cri) 793] in paras 27 and 28, this Court has laid down as follows : (SCC pp. 620-21) „27. The delay in sending the special report was also the subject of discussion in a recent decision being Sheo Shankar Singh v. State of U.P. [Sheo Shankar Singh v. State of U.P., (2013) 12 SCC 539 : (2014) 4 SCC (Cri) 390] wherein it was held that before such a contention is countenanced, the accused must show prejudice having been caused by the delayed dispatch of the FIR to the Magistrate. It was held, relying upon several earlier decisions as follows : (SCC pp. 549-50, paras 30-31) "30. One other submission made on behalf of the appellants was that in the absence of any proof of forwarding the FIR copy to the jurisdiction Magistrate, violation of Section 157 CrPC has crept in and thereby, the very registration of the FIR becomes doubtful. The said submission will have to be rejected, inasmuch as the FIR placed before the Court discloses that the same was reported at 4.00 p.m. on 13-6-

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1979 and was forwarded on the very next day viz. 14-6-

1979. Further, a perusal of the impugned judgments of the High Court [Sarvajit Singh v. State of U.P., 2003 SCC OnLine All 1214 : (2004) 48 ACC 732] as well as of the trial court discloses that no case of any prejudice was shown nor even raised on behalf of the appellants based on alleged violation of Section 157 CrPC. Time and again, this Court has held that unless serious prejudice was demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating (sic) effect on the case of the prosecution. Therefore, the said submission made on behalf of the appellants cannot be sustained.

31. In this context, we would like to refer to a recent decision of this Court in Sandeep v. State of U.P. [Sandeep v. State of U.P., (2012) 6 SCC 107 : (2012) 3 SCC (Cri) 18] wherein the said position has been explained as under in paras 62-63 : (SCC p. 132) „62. It was also feebly contended on behalf of the appellants that the express report was not forwarded to the Magistrate as stipulated under Section 157 CrPC instantaneously. According to the learned counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11- 2004 as FIR No. 116 of 2004 and it was altered on 20-11- 2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh v. State of Punjab [Pala Singh v. State of Punjab, (1972) 2 SCC 640 : 1973 SCC (Cri) 55] wherein this Court has clearly held that (SCC p. 645, para 8) where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.

                         - 77 -                 Cr. Appeal (DB) No. 338 of 2015




63.   Applying    the    above   ratio    in Pala    Singh [Pala

Singh v. State of Punjab, (1972) 2 SCC 640 : 1973 SCC (Cri) 55] to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such circumstances we do not find any infirmity in the case of the prosecution on that score. In fact the above decision was subsequently followed in Sarwan Singh v. State of Punjab [Sarwan Singh v. State of Punjab, (1976) 4 SCC 369 : 1976 SCC (Cri) 646] , Anil Rai v. State of Bihar [Anil Rai v. State of Bihar, (2001) 7 SCC 318 : 2001 SCC (Cri) 1009] and Aqeel Ahmad v. State of U.P. [Aqeel Ahmad v. State of U.P., (2008) 16 SCC 372 : (2010) 4 SCC (Cri) 11] ‟ "

28. It is no doubt true that one of the external checks against ante-dating or ante-timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. The dispatch of a copy of the FIR "forthwith" ensures that there is no manipulation or interpolation in the FIR. [Sudarshan v. State of Maharashtra, (2014) 12 SCC 312 : (2014) 5 SCC (Cri) 94] If the prosecution is asked to give an explanation for the delay in the dispatch of a copy of the FIR, it ought to do so. [Meharaj Singh v. State of U.P., (1994) 5 SCC 188 : 1994 SCC (Cri) 1391] However, if the court is convinced of the prosecution version's truthfulness and trustworthiness of the witnesses, the absence of an explanation may not be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case. [Rattiram v. State of M.P., (2013) 12 SCC 316 : (2014) 1 SCC (Cri) 635] ‟

19. The obligation is on the investigating officer to communicate the report to the Magistrate. The obligation cast on the investigating officer is an obligation of a public duty. But it has been held by this Court that in the event the report is submitted with delay or due to any lapse, the trial shall not be affected. The delay in submitting the report is

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always taken as a ground to challenge the veracity of the FIR and the day and time of the lodging of the FIR.

20. In cases where the date and time of the lodging of the FIR is questioned, the report becomes more relevant. But mere delay in sending the report itself cannot lead to a conclusion that the trial is vitiated or the accused is entitled to be acquitted on this ground.

21. This Court in Anjan Dasgupta v. State of W.B. [Anjan Dasgupta v. State of W.B., (2017) 11 SCC 222 : (2017) 4 SCC (Cri) 280] (of which one of us was a member, Hon'ble Ashok Bhushan, J.) had considered Section 157 CrPC. In the above case also, the FIR was dispatched with delay. Referring to an earlier judgment [Rabindra Mahto v. State of Jharkhand, (2006) 10 SCC 432 : (2006) 3 SCC (Cri) 592] of this Court, it was held that in every case from the mere delay in sending the FIR to the Magistrate, the Court would not conclude that the FIR has been registered much later in time than shown."

140. In view of aforesaid discussion and judicial

pronouncements, as enunciated by Hon'ble Apex Court,

the contention of learned senior counsel is hereby

negated.

141. Further the ground taken by the learned senior

counsel that material witness has not been examined but

this contention has not worth to consider because it is

settled proposition of law that prosecution is not bound to

produce each and every witness, this may create

ambiguity in the prosecution witness. It is also settled

connotation of law that quality of witnesses matter not

quantity.

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142. Reference in this regard may be taken from the

judgment as rendered by the Hon'ble Apex Court in the

Binay Kumar Singh v. State of Bihar reported in (1997)

1 SCC 283 wherein at paragraph 30 it has been held as

under:

"31. ------. There is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. Even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly.

143. The Hon'ble Apex Coufrt further in the case of

Chittar Lal v. State of Rajasthan, (2003) 6 SCC 397

has been pleased to hold as under:

7. [Ed. : Para 7 corrected as per official corrigendum No. F.3/Ed.B.J./80/2003] Evidence of the person whose name did not figure in the FIR as witness does not perforce become suspect. There can be no hard-and-fast rule that the names of all witnesses, more particularly eyewitnesses should be indicated in the FIR. As was observed by this Court in Shri Bhagwan v. State of Rajasthan [(2001) 6 SCC 296 : 2001 SCC (Cri) 1095] mere non-mention of the name of an eyewitness does not render the prosecution version fragile. The information was not lodged by an eyewitness. Mental condition of a person whose father has lost his life inevitably gets disturbed. Explanation offered by witnesses for non-mention of PW 3's name is plausible. Additionally, it is to be noted that in the present case the statement of PW 3 was recorded on the same day of incident, immediately after the investigation process was set into motion.

Therefore, the plea that PW 3's testimony is doubtful lacks

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substance. The other plea was that conviction should not have been made on the basis of a single witness, PW 3's testimony. This plea is equally without essence. The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent, cases where the testimony of a single witness only could be available, in number of crimes the offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. This position has been settled by a series of decisions. The first decision which has become locus classicus is Mohd. Sugal Esa Mamasan Rer Alalah v. R. [AIR 1946 PC 3 : 1946 All LJ 100] The Privy Council focused on the difference between English law where a number of statutes make conviction impermissible for certain categories of offences on the testimony of a single witness and Section 134 of the Evidence Act. The view has been echoed in Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 Cri LJ 1000] , Guli Chand v. State of Rajasthan [(1974) 3 SCC 698 : 1974 SCC (Cri) 222 : AIR 1974 SC 276] , Vahula Bhushan v. State of T.N. [1989 Supp (1) SCC 232 : 1989 SCC (Cri) 353 : AIR 1989 SC 236] , Jagdish Prasad v. State of M.P. [1995 SCC (Cri) 160 : AIR 1994 SC 1251] and Kartik Malhar v. State of Bihar [(1996) 1 SCC 614 : 1996 SCC (Cri) 188] .

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144. Looking to the evidence on record, it is abundantly

clear that the edifice of prosecution case is founded on the

testimonies of the eye-witnesses.

145. From aforesaid discussion and analysis, it is evident

that the death of Binod Singh and his driver Manu Ansari

was homicidal in nature and as per evidence of doctor

P.W.11 and 16 the death was caused by shooting fire-

arms. It is pertinent to mention here that P.W.1, 6 and 10

are reliable witness and P.W.6 and 10 have seen that

appellant Ramadhir Singh, Rajeev Ranjan and one

unknown assailant had made indiscriminate firing by fire-

arms killing Binod Singh and his driver Mannu Ansari at

relevant time and place.

146. This Court on consideration of the testimony in

entirety has found no error to disbelieve it due to the

settled position of law that the testimony of all the

witnesses is to be taken together and not in piecemeal.

Reference in this regard be made to the judgment

rendered in the case of Shyamal Ghosh v. State of West

Bengal, reported in (2012) 7 SCC 646 wherein at

paragraph-69 it has been held as under:--

"69. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes it may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been

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placed on record. Where it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety."

147. The Hon'ble Apex Court in the case of Bhagwan

Jagannath Markad & Ors. Vrs. State of Maharashtra,

reported in (2016) 10 SCC 537 had held at paragraph-19

& 20 as under:-

"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted [Leela Ram v. State of Haryana, (1999) 9 SCC 525, pp. 532-35, paras 9-13 : 2000 SCC (Cri) 222] . Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may

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not conceal the actual culprit. The evidence may be closely scrutinised to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a "partisan" or "interested" witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability [Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381, pp. 392-93, para 15 : 2003 SCC (Cri) 32] . On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.

20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape. [Gangadhar Behera case, (2002) 8 SCC 381, p. 394, para 17]"

148. Further it is the duty of the Court to separate the

grain from the chaff. Falsity of a particular material

witness or a material particular would not ruin it from the

beginning to end. The maxim ―falsus in unofalsus in

omnibus‖ has no application in India. The maxim ―falsus

in unofalsus in omnibus‖ has not received general

acceptance nor has this maxim come to occupy the status

of rule of law. In catena of decisions Hon'ble Supreme

Court has observed that the doctrine is a dangerous one

especially in India for if a whole body of the testimony

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were to be rejected, because the witness was evidently

speaking an untruth in some aspect, it is to be feared that

administration of criminal justice would come to a dead

stop.

149. 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 acceptance and merely because in some respect

the court considers the same to be insufficient for placing

reliance on the testimony of a witness, it does not

necessarily follow as a matter of law that it must be

disregarded in all respects as well.

150. On the basis of the discussion made hereinabove and

after meticulous examination of the circumstantial

evidence available on record, it is amply clear that the

prosecution has been able to establish that charges

beyond all reasonable doubt.

151. This Court, on the basis of discussion made

hereinabove, is of the view that the charge as has been

said to be proved beyond all reasonable doubt as per the

finding of learned trial Court, according to our considered

view the impugned order cannot be said to suffer from an

error.

152. This Court, on the basis of discussion made

hereinabove, is of the view that the judgment of conviction

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and order of sentence passed by learned trial Court

requires no interference.

153. Accordingly, the instant appeal fails and is

dismissed.

154. Let the Lower Court Records be sent back to the

Court concerned forthwith, along with the copy of this

judgment.

         I Agree                     (Sujit Narayan Prasad, J.)



       (Navneet Kumar, J.)                 (Navneet Kumar, J.)

Jharkhand High Court, Ranchi
Alankar / A.F.R.