Gaurav Kumar Rai @ Shubham vs The State Of Bihar
2021 Latest Caselaw 4717 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.1482 of 2019

  Arising Out of PS. Case No.-115 Year-2013 Thana- BIBHUTIPUR District- Samastipur
======================================================

Gaurav Kumar Rai @ Shubham Son of Late Girish Rai Resident of Village- Belsandi Tara, P.S.-Vibhutipur, District-Samastipur.

... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== Appearance :

For the Appellant : Mr. Surendra Singh, Sr. Adv.

Ms Fauzia Shakeel, Adv.

Mr. Kaushal Kishore, Adv.

Mr. Ranjit Yadav, Adv.

For the Respondent : Ms Shashi Bala Verma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA

ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)

Date: 20-09-2021

This appeal is directed against the judgment of

conviction dated 26.10.2019 and the order of sentence dated

05.11.2019 passed by the learned Additional District & Sessions

Judge-I, Rosera, Samastipur in Sessions Trial No. 172 of 2014

arising out of Vibhutipur P.S. Case No. 115 of 2013 whereby and

whereunder the sole appellant has been convicted under Section

302 of the Indian Penal Code (for short 'IPC') and Section 27(1)

of the Arms Act. He has been sentenced to undergo imprisonment

for life and a fine of Rs.10,000/- and in default of payment of fine Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

to undergo rigorous imprisonment for a further period of six

months under Section 302 IPC and rigorous imprisonment for

three years and to pay a fine of Rs.3,000/- and in default of

payment of fine to undergo rigorous imprisonment for a further

period of three months under Section 27(1) of the Arms Act. Both

the sentences have been ordered to run concurrently.

2. The prosecution case was launched based on the

fardbeyan of the father of the deceased Ram Dev Das, which was

recorded by the Assistant Sub-Inspector of Police of Pirbahore

Police Station A.P. Yadav at PMCH, Patna at 01:00 PM on

27.05.2013. In his fardbeyan, the informant has stated that on

26.05.2013 while his son Arun Das was sleeping in his house after

taking dinner, at about 11:00 PM, his co-villager Gaurav Kumar

Rai @ Shubham (appellant) came at his door and called out his

son Arun Das. When his son came out of his doorstep, the

appellant fired at him causing injury in his head as a result of

which he fell on the ground. The incident was witnessed by his

daughters-in-law Manju Devi and Sunita Devi. The informant has

further stated that the injured Arun Das was then taken to Sadar

Hospital, Samastipur where he was treated and was then taken to

PMCH, Patna where he died while undergoing treatment at around Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

05:00 AM. The fardbeyan was signed by the informant Ram Dev

Das and his daughters-in-law Manju Devi and Sunita Devi.

3. Since the offence was committed within the

jurisdiction of Vibhutipur Police Station in the district of

Samastipur, the Assistant Sub-Inspector of Police, Pirbahore Police

Station, who had recorded the fardbeyan, forwarded the same to

the S.H.O., Vibhutipur Police Station, Samastipur through the

S.H.O., Pirbahore Police Station, Patna for registration of the first

information report (for short 'FIR') and investigation.

4. On receipt of the fardbeyan dated 27.05.2013, the

S.H.O., Vibhutipur Police Station registered Vibhutipur P.S. Case

No. 115 of 2013 dated 28.05.2013 under Section 302 of the IPC

and Section 27 of the Arms Act and handed over the investigation

of the case to Rajeev Kumar Azad, a Sub-Inspector of Police. The

Investigating Officer (for short 'I.O.') inspected the place of

occurrence, recorded the statements of the witnesses, arrested the

appellant and on completion of investigation submitted a charge

sheet under Sections 302/34 of the IPC and 27 of the Arms Act

against him before the court vide charge-sheet no. 42/14 dated

28.08.2019 and kept the investigation pending in respect of

involvement of other accused persons in the offence. Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

Subsequently, a supplementary charge-sheet was submitted before

the court of jurisdictional Magistrate against one Yashwant Singh.

5. The learned Magistrate took cognizance of the

offence and after complying with the requirements of Section 207

of the Code of Criminal Procedure (for short 'Cr.P.C') committed

the case to the court of sessions for trial.

6. The Sessions Court (hereinafter referred to as the

'Trial Court') framed charges under Sections 302/34 of the IPC

and 27(1) of the Arms Act against the appellant and Yashwant

Singh to which they pleaded not guilty and claimed to be tried.

7. The prosecution in order to bring home the charges

examined altogether seven witnesses. They are Manju Devi

(P.W.1), wife of the deceased and an eye-witness; Sunita Devi

(P.W.2), sister-in-law of the deceased and an eye-witness; Ram

Dev Das (P.W.3), father of the deceased and an eye-witness; Kiran

Kumari (P.W.4), niece of the deceased and an eye-witness; Dr.

Arun Kumar Singh (P.W.5), the doctor, who conducted the post-

mortem examination on the body of the deceased; Vishnu Paswan

(P.W.6), the second I.O. and Rajeev Kumar Azad (P.W.7), the I.O.

of the case.

8. Besides the oral evidence, the prosecution has also

brought on record the following documentary evidence: Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

S.Nos. Documents Exhibits

1. Signature of Manju Devi on the fardbeyan 1

2. Signature of Sunita Devi on the fardbeyan 1/1

3. Signature of the informant Ram Dev Das 1/2 on the fardbeyan

9. Ram Dev Das (P.W.4) stated in his testimony that on

26.05.2013 at 11:00 PM while he was sleeping at his door, the

appellant called out for his son Arun Das, who was sleeping in his

house. His son woke up and enquired from him the purpose for

which he was calling him. The appellant told him that there he has

some urgent work. On hearing this, his son Arun Das came out of

his doorstep. At that moment, the wife of Arun Das, namely,

Manju Devi and his sister-in-law Sunita Devi also came out. He

stated that his granddaughter Kiran Kumari, aged about 14 years

and Manju Devi were carrying a torch in their respective hands. In

the torchlight, he saw that Yashwant was sitting on a motorbike

and the appellant was sitting behind him on the motorbike. He

stated that the appellant told his son to come with him upon which

when his son took some steps with him, the appellant took out a

pistol from his waist and shot his son Arun Das in his head and

sped away riding the motorbike with Yashwant. His son fell on the Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

ground and was writhing in pain. He was immediately taken to

Samastipur for treatment. Since the doctor at Samastipur referred

him to PMCH, Patna, he was taken to PMCH, where he died at

05:00 AM while undergoing treatment. He stated that his

fardbeyan was recorded by the police officer at PMCH on

27.05.2013 at 01:00 PM. He identified his signature on the

fardbeyan, which was marked as Exhibit-1/2. He stated that both

his daughters-in-law were present with him while he had given his

fardbeyan.

10. In cross-examination, he admitted that the witnesses

Manju Devi, Sunita Devi and Kiran Kumari are his family

members. He admitted that at the relevant time of the incident it

was a dark night. His attention was drawn to his statement

recorded under Section 161 of the Cr.P.C. He admits that he had

not read the statement recorded at Patna and Samastipur till the

date of deposition. He admitted that at Patna he had not told the

police officer that he had seen the occurrence. He stated that the

seizure list was prepared before him on which Manoj and Surendra

had put their signature. He stated that he cannot say which doctor

had examined his son at Samastipur.

11. Manju Devi (P.W.1), the wife of the deceased stated

in her examination-in-chief that on 26.05.2013 at 11:30 PM she Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

was sleeping with her husband and child on the terrace of her

house when someone called her husband. On being asked by her

husband, he disclosed his name as Gaurav Kumar Rai. Her

husband came down to meet him. She followed her husband. Her

gotni Sunita Devi and niece Kiran Kumari also came out of the

house. She saw in the torchlight that the appellant and one

Yashwant Singh were sitting on the motorcycle. Her husband was

asked to walk some steps. As he took few steps, the appellant fired

causing injury to him. She along with her gotni and niece rushed to

the spot. She further stated that the appellant and Yashwant Singh

fled away on the motorcycle. On hulla raised by her, the

neighbours and co-villagers assembled at the place of occurrence.

Her husband was taken to Sadar Hospital, Samastipur in an injured

condition. However, the doctor treating him at Samastipur referred

him to PMCH, Patna for better treatment. She stated that her

husband was then taken to PMCH, Patna where he succumbed to

the injury on 27.05.2013 at 05:00 AM. She stated that there was

some transaction of money between her husband and the appellant.

It is because of that the appellant killed him. She identified her

signature on the fardbeyan, which was marked as Exhibit-1.

12. In cross-examination, she admitted that all the eye-

witnesses are family members. She stated that her father-in-law Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

Ram Dev Das and gotni Sunita Devi had mentioned the name of

the two accused when the fardbeyan was being recorded. She

denied that in the fardbeyan only the appellant has been named as

an accused. She denied the knowledge about the criminal

antecedent of her husband. She admitted in para 14 that the police

did not seize the torch. She stated that the fardbeyan was recorded

at Patna and her re-statement was recorded at Vibhutipur Police

Station. She admitted that she is employed as Asha Bahu on the

recommendation made by the uncle of the appellant, who was the

then Mukhiya. She stated that after being injured, her husband was

lying on the ground for about half an hour. She further admitted

that on hulla after the incident more than 100 people had

assembled at the place of occurrence. She denied the defence

suggestion that under a deep-rooted conspiracy the appellant has

been falsely implicated in the case.

13. Sunita Devi (P.W.2) has also repeated the

prosecution version in her examination-in-chief. She admitted in

her cross-examination that at the time of occurrence there was no

supply of electricity in the village. She admitted that the torch used

for identification of the accused at the time of the commission of

the offence was never shown to the police and the police did not

seize the same. When her attention was drawn towards her Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

previous statement made before the police, she stated that it is not

true that she had not stated before the police that when she came to

her doorstep her father-in-law Ram Dev Das also came out of the

house. She further stated that it is not true that she had not stated

before the police earlier that she identified the accused persons in

the torchlight. She stated that she does not know that her father-in-

law was accused in a case of rape, which was numbered as

Samastipur P.S. Case No. 249 of 2015. She denied that the

deceased Arun Das was a criminal and was facing trial.

14. Kiran Kumari (P.W.4), the niece of the deceased

supported the prosecution case as an eye-witness. She stated that

the accused persons took her uncle 20 meters away from her house

on the pretext of discussing some issue. Thereafter, they shot him

and went away on the motorcycle. She stated that she did not go to

the police station. She further stated that on 27.05.2013 in the

morning when the police came to her residence, she narrated the

entire incident to them.

15. In cross-examination, she described that adjacent to

her house, the house of Mahendra Das and adjacent to the house of

Mahendra Das, the house of Umesh Das is situated. She admitted

that on the date of occurrence there was a marriage of the son of

Umesh Das in which more than 500 people had assembled in the Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

village. She admitted that on 27.05.2013 at 10:00 AM the police

had come to her residence and recorded her fardbeyan on which

she had put her signature. She also admitted that when her uncle

was being taken to hospital a large number of co-villagers had

assembled. She admitted that immediately after the incident, the

police were informed by her family members, but the police had

arrived the next morning. She stated that when her fardbeyan was

being recorded, several persons were present at her house. She

denied the defence suggestion that she was deposed falsely before

the court.

16. Dr. Arun Kumar Singh (P.W.5), who prepared the

post-mortem report has stated in his evidence that on 27.05.2013

he was posted as Associate Professor in the PMCH, Patna. On that

day at 02:00 PM, he conducted a post-mortem examination on the

body of the deceased Arun Das. He found an entry wound on the

right side of the forehead. According to him the area surrounding

the entry wound was found lacerated, inverted and blackened

having tattoo mark. According to him, the time elapsed since death

was 12 hours approximately. The cause of death was haemorrhage

and shock due to head injury caused by a firearm. He stated that

one metallic bullet was recovered from the cranial cavity and was

handed over to the constable in a clean glass vial. He identified his Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

writing and signature on the post-mortem report, which was

marked as Exhibit-2.

17. In cross-examination, he admitted that there was only

one injury on the person of the deceased. He admitted that the

bullet recovered from the cranial cavity was not before him.

18. Rajeev Kumar Azad (P.W.7) proved the fardbeyan

and the pagination done over in the writing of A.S.I. A.P. Yadav,

which was marked as Exhibit-1/3. He also proved the inquest

report prepared in the writing of A.S.I. A.P. Yadav, which was

marked as Exhibit-5. He was entrusted with the investigation of

the case on 28.05.2013. He stated that the police came to know on

27.05.2013 at 06:05 AM about the incident which took place in

which Arun Das was shot at in village Phulwaria and was taken to

Patna for treatment. He stated that as disclosed by the villagers, he

recovered an empty cartridge and a blood-stained shirt. He

prepared the seizure list of the seized articles and kept them in the

Malkhana. He proved his writing and signature on the seizure list,

which has been marked as Exhibit-3. He stated that he recorded

the statements of Manju Devi, Sunita Devi, Kiran Kumari,

Surendra Kumar and Manoj Kumar Rai during the investigation.

He further stated that he came to know that on 27.05.2013 at 11:00

PM the appellant called out Arun Das and took him about 20 Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

meters south-east to his house on a brick-soling PCC road and shot

at him as a result of which he became seriously injured and during

treatment died at PMCH, Patna. On completion of the

investigation, he submitted charge-sheet no.42/14 dated

28.03.2014 under Sections 302/34 of the IPC and 27 of the Arms

Act against the appellant keeping the investigation pending against

the co-accused Yashwant Singh. He stated that since he was

transferred on 30.11.2015, he handed over the investigation of the

case to the S.H.O. of Vibhutipur Police Station.

19. In cross-examination, he admitted that the empty

cartridge and the blood-stained shirt were recovered from the

house of the deceased. He stated that it is not mentioned in the

case diary as to when he reached the place of occurrence on

27.05.2013. He admitted that at the place of occurrence no mark of

blood was found. He admitted that the seized articles are not

before him. He stated that he did not send the seized empty

cartridge for forensic test. He further stated that the bloodstains

found on the seized shirt were not matched with the blood of the

deceased. He admitted that the witnesses, who claimed to have

identified the appellant in the torchlight, did not hand over the

torch to him and he did not prepare any seizure list in this regard.

He further admitted that he did not examine the witnesses residing Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

in the neighbourhood. He admitted that he received the inquest

report of the deceased and the fardbeyan on 28.05.2013 at 01:00

PM. In further cross-examination, he stated that when he received

information that Arun Das was shot at village Phulwaria, though

he knew it to be a cognizable offence, he did not record any

fardbeyan in this regard. He further stated that he was entrusted

with the investigation of the case on 28.05.2013, but even before

that, he had prepared the seizure list. He admitted that he has not

recorded the date and time when the statements of Manju Devi,

Sunita Devi and Kiran Kumari were recorded. He stated that he

did not enquire about the vehicle in which the victim was first

taken to Samastipur and then to Patna. He did not inquire about the

name of the driver of the vehicle in which the victim was taken to

Patna for treatment.

20. Vishnu Paswan (P.W.6) is the second I.O. of the

case. He had recorded the statements of some of the witnesses

after taking charge of the investigation and submitted a charge

sheet against Yashwant Singh vide charge-sheet no.207/15 dated

31.12.2015.

21. After the closure of the prosecution case, the Trial

Court recorded the statement of the appellant under Section 313 of Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

the Cr.P.C. The appellant pleaded his innocence and denied that he

had killed the son of the informant, namely, Arun Das.

22. After the prosecution case was closed, the defence

adduced four witnesses regarding the claim of false implication.

23. Yogendra Mahto (D.W.1) stated that on 26.05.2013

at 11:00 PM he along with his brother was going to his house and

when he reached Phulwaria chowk, he saw two persons coming on

a motorcycle out of whom one got down and went towards the

house of Ram Dev Das. He heard the sound of firing and when he

and others went to the house of Ram Dev Das, he saw Arun Das in

an injured condition. He stated that he could not identify the

person who had gone towards the house of Ram Dev Das. He

stated that at that time Arun Das was alive. When he enquired from

him about the person, who fired upon him, he stated that he could

not identify him. He stated that at that point in the time none of the

family members of Arun Das or Ram Dev Das was present there

and they all came after 20-25 minutes of the incident. He stated

that the police recorded his statement as well as the statement of

his brother the next day.

24. In cross-examination, he denied saying to the police

that the pillion rider on the motorcycle was Yashwant Singh. He

stated that he had disclosed to the police in his statement that Arun Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

Das had sustained an injury in his head and was bleeding profusely

and his family members took him for treatment. He denied the

suggestion made by the prosecution that he has deposed falsely.

25. Manoj Kumar Rai (D.W.2) is on the point that his

signature was taken on a blank sheet of paper. He stated that

subsequently, he came to know that it was used for the preparation

of the seizure list. He stated that no seizure of any article was

made in his presence. In his cross-examination, he stated that his

statement was not recorded by the police during the investigation.

26. Suresh Mahto (D.W.3) is the own brother of

Yogendra Mahto (D.W.1). He has corroborated the testimony of

D.W.1. He stated that when he along with his brother Yogendra

Mahto came near the injured Arun Das after the assailant shot at

him, he was alive and conscious. When his brother asked him the

name of the assailant, he replied that he could not identify him. He

stated that his statement was recorded by the police during the

investigation. In cross-examination, he stated that he could not

identify the assailant of Arun Das.

27. Arun Kumar Mahto (D.W.4) is the owner of the

Bolero vehicle in which the deceased was taken for his treatment.

He stated that when the deceased was being taken to hospital in the

Bolero vehicle, 4-5 persons enquired from the informant about the Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

identity of the assailant on which the informant asked the name of

the assailant from his injured son, but he stated that he could not

identify him as he was covering his face by a gamchha. In cross-

examination, he admitted that his statement was never recorded by

the police during the investigation.

28. After the closure of the defence case, the Trial Court

heard the arguments advanced on behalf of the parties and passed

the impugned judgment convicting the appellant and acquitting the

co-accused Yashwant Singh.

29. Assailing the impugned judgment, Mr. Surendra

Singh, learned senior advocate being assisted by Ms. Fauzia

Shakeel, learned advocate submitted that it has come in evidence

that there was no electricity in and around the place of occurrence

on the date of occurrence and it was a dark night. The incident

occurred 20 meters away from the house. There was no reason for

the eye-witnesses to have followed the victim Arun Das and to go

behind him. He stated that it was a case of blind murder and none

had identified the assailant. Even the victim was alive after being

shot in the head and was conscious, but he could not disclose the

identity of the assailant. He argued that the assailant was not

identified would be established from the fact that no FIR was

lodged immediately after the incident took place. He contended Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

that it would be manifest from the evidence of the prosecution

witnesses that the injured was lying at the place of occurrence for

half an hour. A large number of villagers had assembled at the

place of occurrence. The witnesses examined during the trial were

also present there. Therefore, they could have given the name of

the accused persons immediately after the incident. He contended

that though the evidence is that the victim was first taken to

Samastipur Sadar Hospital, no information was given to the police

at Samastipur. There is no document to suggest that the victim was

ever treated at Samastipur. The victim was then taken to PMCH,

Patna where he was admitted and was undergoing treatment. Even

there the fardbeyan was not recorded promptly. The evidence

suggests that the victim died at 05:00 AM on 27.05.2013, but the

fardbeyan was recorded by the A.S.I. of Pirbahore Police Station at

01:00 PM on 27.05.2013. He contended that the name of the

appellant has been introduced in the fardbeyan belatedly after due

deliberations and consultations.

30. Mr. Surendra Singh, learned senior advocate further

contended that Kiran Kumari (P.W.4) stated in her deposition that

someone from the family had telephonically informed the police

immediately after the incident took place. The I.O. has

corroborated this part of the story put by P.W.4 and admitted that Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

no name of the assailant was disclosed when the police were

informed on the telephone. He argued that it is conclusive proof of

the fact that the identity of the assailant was not known to the

informant or any of the family members of the deceased initially.

31. Mr. Singh further argued that the evidence would

suggest that the I.O. came to the village on 27.05.2013 in the

morning and recorded the statement of Kiran Kumari (P.W.4),

which was signed by her. It should have been treated as the FIR.

Its suppression raises an adverse inference against the prosecution.

32. Mr. Singh submitted that had the identity of the

assailant been known, it is not conceivable that the I.O. would not

have registered the fardbeyan then and there when he visited the

place of occurrence in the morning of 27.05.2013.

33. He argued that P.W.s 1, 2 and 3 claimed themselves

to be the eye-witnesses. They took the victim to Patna. The

deceased succumbed at 05:00 AM. The Pirbahore Police Station at

Patna is at a distance of half a kilometre from the PMCH.

Therefore, the delay of eight hours after the demise of the deceased

in recording the fardbeyan is fatal to the prosecution case

especially when a police outpost is situated at PMCH, Patna.

34. He contended that the police officer, who prepared

the inquest report and recorded the fardbeyan, was not examined Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

by the prosecution. During the trial, only three highly interested

witnesses were examined. The non-examination of the independent

witness would lead to adverse inference under Section 114(g) of

the Evidence Act. In support of his submissions, he has placed

reliance on the judgment of the Supreme Court in Hem Raj Vs.

State of Haryana, since reported in (2005) 10 SCC 614 and

Takhaji Hiraji Vs. Thakore Kubersing Chamansing, since

reported in (2001) 6 SCC 145.

35. He contended that even the place of occurrence has

not been proved. He submitted that the version of the defence

witnesses cast serious doubt on the prosecution story and their

credibility has not been impeached by the prosecution during

cross-examination.

36. Mr. Singh further argued that the I.O. had no clue as

to who the perpetrators of the crime were nor had the witnesses

any idea about the perpetrators of the crime. He argued that the

FIR has belatedly been instituted after due deliberations and

consultations and the same is fatal to the prosecution case. In

support of his submission, he placed reliance on the judgments of

the Supreme Court in Dilawar Singh Vs. State of Delhi, since

reported in (2007) 12 SCC 641 and P. Rajagopal Vs. State of

Tamil Nadu, since reported in (2019) 5 SCC 403. Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

37. Mr. Singh submitted next that the incident took place

at 11:00 PM when it was a dark night and there was no electricity.

Kiran Kumari (P.W.4) has deposed that she identified the appellant

in the torchlight, but the torch has not been seized by the police.

He submitted that the means of identification was, thus, not proved

by the prosecution. In this regard, he has placed reliance on a

judgment of the Supreme Court in Kapildeo Mandal Vs. State of

Bihar, since reported in (2008) 16 SCC 99.

38. Lastly, Mr. Singh argued that the Trial Court has not

given any weightage to the deposition of the defence witnesses. He

submitted that they being independent witnesses were entitled to

equal treatment as that of the prosecution witnesses. He submitted

that the version of the defence witness casts serious doubt on the

prosecution story. According to him, the Trial Court has grossly

erred in not relying upon their evidence. In support of his

submission, he has placed reliance on the judgment of the Supreme

Court in the State of U.P. Vs. Babu Ram, since reported in (2000)

4 SCC 515; Munshi Prasad Vs. State of Bihar, since reported in

(2002) 1 SCC 351 and, Dudh Nath Pandey Vs. State of U.P.,

since reported in (1981) 2 SCC 166.

Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

39. On the other hand, Ms. Shashi Bala Verma, learned

Additional Public Prosecutor appearing for the State submitted that

the delay in the institution of the FIR is properly explained. The

condition of the victim was precarious. The priority of the family

members was to save the life of the victim. Hence, immediately

after the occurrence, they arranged for a vehicle and took the

victim to Sadar Hospital, Samastipur from where he was referred

to PMCH, Patna for better treatment. She contended that at

PMCH, Patna the victim succumbed to his injury at 05:00 AM.

The informant and his family members are not residents of Patna.

Hence, the delay of eight hours after the death of the deceased in

recording the fardbeyan is not unreasonable. She contended that

there are four eye-witnesses to the prosecution. Even though they

are related to the deceased, their presence at the time of occurrence

cannot be doubted. They are all consistent in the manner of

occurrence and the place of occurrence. Their evidence has been

rightly found credible by the Trial Court. The ocular testimony of

the witnesses examined during the trial has been corroborated by

the doctor, who conducted the post-mortem examination on the

body of the deceased. She contended that even the place of

occurrence has been fully established.

Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

40. She contended that non-examination of the

independent witnesses would not be fatal to the prosecution case

as it is well known that these days independent witnesses are

reluctant to depose before the court because of many reasons.

Moreover, it is not necessary to examine independent witnesses in

every case.

41. We have heard the submissions made on behalf of the

parties and carefully perused the materials on record.

42. In a criminal case, FIR is an important document

even though it is not a substantive piece of evidence. A prompt FIR

lends credence to the prosecution version and often prevents the

possibility of a coloured version being put by the informant.

Section 154 contained in Chapter XII of the Cr.P.C deals with the

information to the police and their powers to investigate. The

Cr.P.C classifies the offences in two categories, namely, (a)

cognizable offence and (b) non-cognizable offence. Registration of

an FIR is mandatory under Section 154 of the Cr.P.C if the

information discloses the commission of a cognizable offence.

43. In the instant case, the incident took place at 11:00

PM on 26.05.2013. Kiran Kumari (P.W.4) stated in her deposition

that information was immediately sent to the police station by her

family members in the night itself. The I.O. (P.W.7) stated in his Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

testimony that the information regarding injury caused to Arun Das

in the night at village Phulwaria was received in the police station

at 06:05 AM on 27.05.2013. Thereafter, he proceeded to the place

of occurrence where he seized an empty cartridge and blood-

stained shirt. Further, the I.O. has stated in his testimony that on

27.05.2013 an information regarding gunshot injury caused to

Arun Das in the incident was received in the police station

pursuant to which he proceeded to the place of occurrence. The

said sanha has intentionally been withheld. Since the information

given to the police was of a cognizable offence that Arun Das has

been shot at in village Phulwaria, the same ought to have been

treated as an FIR. Whether the information was cryptic or it was

detailed one could have been known if the sanha would have been

produced before the court. In the ordinary course, the S.H.O.

would have immediately recorded the FIR based on the

information of a cognizable offence. However, if the information

was cryptic and the police proceeded to the place of occurrence

based on that information to find out the details of the nature of the

offence, then it cannot be said that the information which has been

received shall be deemed to be the FIR. On the other hand, if the

information received at the police station was not cryptic and

based on that information the Officer-in-Charge would have been Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

prima facie satisfied about the commission of a cognizable offence

and the police proceeded from the police station after recording

such information to investigate such offence, then such

information given by any person in respect of the said offence

would have been treated as an FIR. We are not sure about the

nature of the information given to the police on 27.05.2013 at

06:05 AM because the sanha has not been proved by the

prosecution during the trial. The court would draw an adverse

inference against the prosecution for suppressing the sanha from

the court.

44. It would further be evident from the evidence that

after making sanha entry at 06:05 AM on 27.05.2013, the I.O.

(P.W.7) reached the village, inspected the place of occurrence,

recovered a blood-stained shirt and a cartridge from the house of

the informant and prepared the seizure list. The I.O. also took the

statement of Kiran Kumari (P.W.4), who narrated the entire

incident and she signed on the statement and other papers which

the police prepared. This statement by P.W. 4 has also been

suppressed. In his testimony, the I.O. admitted that he had prepared

the seizure list at 09:00 AM on 27.05.2013. Kiran Kumari (P.W.4)

stated in her deposition that the police came to her residence at

10:00 AM on 27.05.2013 and prepared certain papers on which she Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

put her signature. She stated that she gave her statement to the

police.

45. In case, the message received by the police at the

police station based on which sanha entry was made was cryptic

and the I.O. had proceeded from the police station to verify the

veracity of the information, when he reached the place of

occurrence and prepared the seizure list at 09:00 AM and recorded

the statement of P.W.4, the same was definitely an information

relating to a cognizable offence and based on that the FIR ought to

have been instituted. The said statement of P.W.4 on which the

police had obtained her signature has also been withheld by the

prosecution.

46. Not only this, the I.O. admitted in cross-examination

that he recorded the subsequent statement of the informant, Ram

Dev Das, at 11:00 AM on 27.05.2013. In case, the informant was

present in his village on 27.05.2013 at 11:00 AM, it is difficult to

concede as to how he gave his fardbeyan at PMCH, Patna at 01:00

PM on 27.05.2013.

47. In the instant case, the FIR was registered on

28.05.2013 at 11:00 AM. Much before the registration of the FIR,

the I.O. had reached the village where the occurrence took place,

inspected the place of occurrence, prepared the seizure list, Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

recorded the statements of Kiran Kumari (P.W.4) and the informant

Ram Dev Rai (P.W.3) and went back to the police station.

Surprisingly, no FIR was registered on 27.05.2013. The I.O. seems

to be ill-trained, ignorant of law and procedure. He did not realize

the importance of getting a police case registered in the police

station concerned even before recording the statements of the

witnesses to the occurrence, inspecting the place of occurrence and

seizing the incriminating articles from the place of occurrence. We

find force in the submission made on behalf of the appellant that

the FIR has belatedly been instituted after due deliberations and

consultations and the same is fatal to the prosecution case.

48. In Dilawar Singh Vs. State of Delhi (supra), while

holding that unexplained delay in lodging of the FIR is fatal, the

Supreme Court held as under: -

"9. In criminal trial one of the cardinal principles for the court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications.

Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.

10. In Thulia Kali v. State of T.N. [(1972) 3 SCC 393 : 1972 SCC (Cri) 543 : AIR 1973 SC 501] it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.

11. In Ram Jag v. State of U.P. [(1974) 4 SCC 201 : 1974 SCC (Cri) 370 : AIR 1974 SC 606] the position was explained that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for implicating the accused and/or when plausible explanation is offered for the same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or authenticity of the version of the prosecution."

Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

49. In P. Rajagopal Vs. State of Tamil Nadu (supra), the

Supreme Court held as under:

12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty-bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely. [See Apren Joseph v. State of Kerala [Apren Joseph v. State of Kerala, (1973) 3 SCC 114 : 1973 SCC (Cri) 195] and Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673]

50. There are other glaring loopholes in the prosecution

case. It defeats the reason as to how the I.O. would have recorded

the further statement of the informant at 11:00 AM on 27.05.2013

at the place of occurrence when the fardbeyan of the informant

itself was recorded later on that day at 01:00 PM at PMCH, Patna.

The seizure list (Exhibit-3) is said to have been prepared at the

place of occurrence at 09:00 AM on 27.05.2013. Though P.W.4 in

her testimony said that she had signed on the papers prepared by

the police and non-else had signed over it, her signature is missing

on the seizure list. The witnesses to the seizure are Surendra

Kumar and Manoj Kumar Rai. Surendra Kumar has not been Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

examined by the prosecution and Manoj Kumar Rai has been

examined as a defence witness. The recovery of the blood-stained

shirt and cartridge was not true. They were not produced before the

court. The forensic examination of the empty cartridge or its

matching with the bullet recovered from the body of the deceased

was not carried. Further, the chemical examination of the blood-

stained shirt was not done. A sketch map of the place of occurrence

was not prepared.

51. Apart from the aforestated glaring loopholes in the

investigation, the prosecution has also failed to prove the place of

occurrence. As per the fardbeyan, the incident is said to have taken

place at the doorstep of the informant. The witnesses during the

trial have deposed that the incident took place 20 meters away

from the house of the informant. It is the case of the prosecution

that after the deceased was shot at, he lay on the spot for half an

hour after which he was rushed to the hospital. However, it is

strange that the I.O., who had inspected the place of occurrence the

next morning, did not find any blood at the place of occurrence. As

the deceased was shot in the head and blood was oozing at the

place of occurrence, this can only lead to an inference that this

may not be a place of occurrence where the murder had taken

place.

Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

52. Furthermore, the means of identification was not

proved, as the torch was not seized by the police. Since the

incident took place at 11:00 PM when it was a dark night and there

was no electricity, the prosecution witnesses could not have seen

the occurrence as the place of occurrence was 20 meters away

from the house of the deceased.

53. In an identical case in Kapildeo Mandal Vs. State of

Bihar (supra), the Supreme Court held as under:

"19. In the present case, we find from the evidence of the witnesses examined by the prosecution as already noticed that the witnesses are related and their relations were strained with the appellants on account of the litigation. The incident happened at 11 o'clock in the night. The witnesses have stated that they have seen the incident and recognised the appellants either in the torchlight or in the lantern light which was burning at their house. It has come in evidence of the witnesses as well as the investigating officer that neither the torch nor the lantern was seized by the investigating officer during the course of investigation, nor were they produced before the court. In the circumstances, it is difficult to believe that the appellants have been identified in the torchlight or in the lantern light."

Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

54. Furthermore, the independent witnesses though

present were not examined by the prosecution. We have seen that

the incident took place in a densely populated village at 11:00 PM

in the month of May when there was a wedding in the

neighbourhood and about 500 people had assembled that night.

Several persons had assembled at the place of occurrence in the

night and the residence of the informant when the I.O. visited in

the morning of 27.05.2013, but the I.O. chose not to examine

them. Non-examination of independent witnesses, who were

available, in the facts and circumstances of the present case would

lead to an adverse inference under Section 114(g) of the Evidence

Act.

55. In Hem Raj Vs. State of Haryana (supra), the

Supreme Court held as under:

"Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raises serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness Kapur Singh, would assume significance. ..."

56. In Takhaji Hiraji Vs. Thakore Kubersing

Chamansing (supra), the Supreme Court held as under:

Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

"... The court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise...."

57. In the instant case, the evidence of the eye-witnesses

examined on behalf of the prosecution raises serious doubt on their

presence at the time of actual occurrence. The witnesses have

categorically stated that there was a wedding in the neighbourhood

and about 500 people had assembled in the wedding. The

witnesses have also stated that in the morning when the police had

arrived at the place of occurrence, a large number of people were

present.

58. In the facts and circumstances of the case, we are of

the opinion that when the other witnesses were available, it was

necessary to examine them. However, they have been withheld

from the court. The Court would draw adverse inference under

Section 114(g) of the Evidence Act for non-examination of

independent witnesses.

59. In the present case, Yogendra Mahto (D.W.1) and

Suresh Mahto (D.W.3), who are independent witnesses deposed Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

that the deceased was shot by an unknown person and none of the

prosecution witnesses has seen the occurrence. They have also

deposed that the deceased told them that he did not recognize the

person who shot at him. From the trend of cross-examination, it

would appear that these witnesses were also examined by the

police during the investigation. Manoj Kumar Rai (D.W.2) is the

seizure list witness. The prosecution has not been able to impeach

their credibility during cross-examination. There was no reason for

the Trial Court not to have given due weightage to their testimony

while deciding the case. It has been rightly submitted on behalf of

the appellant that equal weightage should have been given to the

defence witnesses as that of prosecution witnesses.

60. In Munshi Prasad Vs. State of Bihar (supra), the

Supreme Court held as under:

"... Before drawing the curtain on this score, however, we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution -- a lapse on the part of the defence Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

on record the availability of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutors' witnesses."

61. In Dudh Nath Pandey Vs. State of U.P. (supra), the

Supreme Court held as under:

"Defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their traditional, instinctive disbelief in defence witnesses."

62. In State of U.P. Vs. Babu Ram (supra), the Supreme

Court held as under:

"Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses."

63. In the light of the discussions made hereinabove, we

are of the opinion that the FIR is not the first version of the

occurrence and has been made after consultations and Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

deliberations. The unexplained delay in lodging of the FIR is fatal

to the prosecution case. There are glaring loopholes in the

prosecution case and the investigation is grossly defective. The

place of occurrence has not been proved and identification of the

accused is doubtful. The non-examination of the independent

witnesses in the facts and circumstances of the case is also fatal to

the prosecution case. We are of the opinion that the eye-witnesses

examined in the case are not reliable and their presence is

doubtful. We are also of the opinion that the Trial Court has failed

to appreciate that the defence witnesses are entitled to equal

treatment as that of the prosecution witnesses.

64. Thus, on consideration of the entire evidence, we are

of the opinion that the prosecution has miserably failed to prove its

case beyond reasonable doubt against the appellant.

65. For all these reasons, appeal is allowed. The impugned

judgment of conviction dated 26.10.2019 and the order of sentence

dated 05.11.2019 passed by the learned Additional District &

Sessions Judge-I, Rosera, Samastipur in connection with Sessions

Trial No. 172 of 2014 arising out of Vibhutipur P.S. Case No. 115

of 2013 are, accordingly, set aside. The appellant Gaurav Kumar

Rai @ Shubham is acquitted of the charges levelled against him.

Patna High Court CR. APP (DB) No.1482 of 2019 dt.20-09-2021

He shall be released from jail forthwith if he is not required in any

other case.

(Ashwani Kumar Singh, J)

(Arvind Srivastava, J)

Pradeep/-

AFR/NAFR                         AFR
CAV DATE                         N.A.
Uploading Date                20.09.2021
Transmission Date             20.09.2021