The State Of Bihar vs Babli Miyan
2022 Latest Caselaw 4519 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA

                          DEATH REFERENCE No.6 of 2021
        Arising Out of PS. Case No.-739 Year-2018 Thana- ARA NAGAR District- Bhojpur
     ======================================================

The State of Bihar

... ... Petitioner/s Versus

1. Babli Miyan S/O- Sabbu Miyan R/o of Mohalla Khetari, P.S. Ara Nagar, District - Bhojpur.

2. Abdulla Quraishi S/o Late Jamil Quarishi R/o Mohalla Kazi Tola, P.S.- Ara Nagar, District- Bhojpur.

3. Khurshid Qurashi S/o Late Jamil Quraishi R/o Mohalla Kasap Tola, P.S. Ara Nagar, District - Bhojpur.

4. Taushif Miyan @ Taushif Alam @ Tausif Ahmad S/o Late Md. Akhtar Alam R/o Mohalla Khetari, P.S. Ara Nagar, District - Bhojpur.

5. Ahamd Miyan @ Ahmad Hussain S/o Md. Yakub R/o Mohalla- Milki, P.S. Ara Nagar, District - Bhojpur.

6. Anwar Quraishi @ Sarla Miyan S/o Late Ali Jaan R/o Mohalla Rouza, P.S. Ara Nagar, District - Bhojpur.

7. Raju Khan S/o Md. Jalil R/o Mohalla Najirganj, Ara, P.S. Ara Nagar, District

- Bhojpur.

... ... Respondent/s ====================================================== with

CRIMINAL APPEAL (DB) No. 470 of 2021 Arising Out of PS. Case No.-739 Year-2018 Thana- ARA NAGAR District- Bhojpur ====================================================== Ahmad Miyan @ Ahmad @ Ahmad Hussain S/O Late Md Yakub Miyan @ Md Yakub, resident of Village - Milki Mohalla, P.S.- Ara Town, Distt.- Bhojpur.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 534 of 2021 Arising Out of PS. Case No.-739 Year-2018 Thana- ARA NAGAR District- Bhojpur ====================================================== Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

Raju Khan @ Raju Kha Son of Md. Jalil @ Jalal khan, resident of Mohalla- Milki (Kasai Tola), Najirganj, Ara, P.S.- Ara Nagar, Dsitrict- Bhojpur.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 538 of 2021 Arising Out of PS. Case No.-739 Year-2018 Thana- ARA NAGAR District- Bhojpur ======================================================

1. Babli Miyan S/o Sabbu Miyan R/o Mohalla- Khetari, P.S.- Ara Nagar, District- Bhojpur, Bihar.

2. Abdullah Qureshi S/o Late Jamil Quareshi R/o Mohalla- Kazi Tola, P.S.- Ara Nagar, District- Bhojpur, Bihar.

3. Khurshid Qurashi S/o Late Jamil Quaishi R/o Mohalla- Kasap Tola, P.S.-

Ara Nagar, District- Bhojpur, Bihar.

4. Anwar Quraishi @ Sarla Miyan Son of Late Ali Jaan R/o Mohalla- Rouza, P.S.- Ara Nagar, District- Bhojpur, Bihar.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== with

CRIMINAL APPEAL (DB) No. 542 of 2021 Arising Out of PS. Case No.-739 Year-2018 Thana- ARA NAGAR District- Bhojpur ====================================================== Taushif Miyan @ Taushif Alam @ Md Taushif Alam @ Tausif Ahmad S/O- Late Md.Akhtar Alam, resident of Village- Khetari Mohalla, P.S.- Ara Town, District- Bhojpur (Bihar)

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

       (In DEATH REFERENCE No. 6 of 2021)
       For the Petitioner/s :    xxx
       For the Respondent/s :    Mr. J.P. Singh, Amicus Curiae

Mr. Kamlesh Kumar Singh, AC to Amicus Curiae (In CRIMINAL APPEAL (DB) No. 470 of 2021) Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

For the Appellant/s :

Mr. Pratik Mishra, Advocate Mr. Zainul Abedin, Advocate For the State : Ms. Shashi Bala Verma, APP For the Informant : Mr. Ravindra Kumar, Advocate (In CRIMINAL APPEAL (DB) No. 534 of 2021) For the Appellant/s : Mr. Vikram Deo Singh, Advocate Mr. Shankar Kumar, Advocate For the State : Ms. Shashi Bala Verma, APP For the Informant : Mr. Ravindra Kumar, Advocate (In CRIMINAL APPEAL (DB) No. 538 of 2021) For the Appellant/s : Mr. Jitendra Singh, Senior Advocate Mr. Ashutosh Nath, Advocate Mr. Kumar Nikhil, Advocate Mr. Yash Singh, Advocate For the State : Ms. Shashi Bala Verma, APP For the Informant : Mr. Ravindra Kumar, Advocate (In CRIMINAL APPEAL (DB) No. 542 of 2021) For the Appellant/s : Mr. Keshav Shrivastava, Senior Advocate Mr. Sarbottam Kumar Sarkar, Advocate Mr. Raj Kumar, Advocate For the State : Ms. Shashi Bala Verma, APP For the Informant : Mr. Ravindra Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE HARISH KUMAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH) Date : 17-08-2022

The appellants Ahmad Miyan @ Ahmad @ Ahmad

Hussain, Raju Khan @ Raju Kha, Babli Miyan, Abdullah

Qureshi, Khurshid Qurashi, Anwar Quraishi @ Sarla Miyan,

and Taushif Miyan @ Taushif Alam @ Md. Taushif Alam @

Tausif Ahmad have been held guilty vide order dated

09.03.2021 passed in Sessions Trial No.117 of 2019 arising out

of Ara Town P.S. Case No.739 of 2018 by the learned

Additional Sessions Judge-IXth, Bhojpur at Ara to the charges

under Sections 302 read with 34, 307 read with 34, 387 read Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

with 34 and 120B of the Indian Penal Code (for short 'IPC') and

Section 27 of the Arms Act.

2. Consequent upon the conviction, vide order dated

14.06.2021, the aforesaid convicts have been sentenced to death

and to pay a fine of Rs.one lakh each for the offence punishable

under Section 302 read with 34 of the IPC, rigorous

imprisonment for ten years and a fine of Rs.50,000/- each for

the offence punishable under Section 307 read with 34 of the

IPC, rigorous imprisonment for seven years and a fine of

Rs.50,000/- each for the offence punishable under Section 387

read with 34 of the IPC, rigorous imprisonment for seven years

and a fine of Rs.50,000/- each for the offence under Section

120B of the IPC and rigorous imprisonment for seven years and

a fine of Rs.10,000/- each for the offence punishable under

Section 27 of the Arms Act and in default of payment of fine to

undergo simple imprisonment for a further period of three

months. The Trial Court has directed that all the sentences shall

run concurrently.

3. Reference made by the Trial Court under Section

366 of the Code of Criminal Procedure (for short 'CrPC') for

confirmation of death sentence awarded to the convicts in the

aforesaid sessions trial has been registered as Death Reference Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

No.06 of 2021.

4. The appellant Ahmad Miyan @ Ahmad @ Ahmad

Hussain has challenged his conviction and sentence awarded in

the aforesaid sessions trial by filing Criminal Appeal (DB)

No.470 of 2021. The appellant Raju Khan @ Raju Kha has

challenged his conviction and sentence imposed by the Trial

Court by filing Criminal Appeal (DB) No.534 of 2021.The

appellants Babli Miyan, Abdullah Qureshi, Khurshid Qurashi

and Anwar Quraishi @ Sarla Miyan have challenged their

conviction and sentence imposed by the Trial Court by filing

Criminal Appeal (DB) No.538 of 2021. The appellant Taushif

Miyan @ Taushif Alam @ Md. Taushif Alam @ Tausif Ahmad

has challenged his conviction and sentence imposed by the Trial

Court by filing Criminal Appeal (DB) No.542 of 2021.

5. These appeals preferred by the appellants as well as

the reference made by the Trial Court under Section 366 of the

CrPC have been heard together and are being disposed of by a

common order.

6. The sessions trial in which the impugned judgment

and order were passed relates to the first information report (for

short 'FIR') that had been registered at 6:30 pm on 06.12.2018

in Bhojpur Town Police Station in respect of an incident that Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

had occurred at Shobha Market, Dharman Chowk situated at a

distance of 0.5 kilometre in the eastern direction from the Ara

Town Police Station on the basis of the written report submitted

by Akil Ahmad (P.W.1).

7. In his written report, Akil Ahmad stated that on

06.12.2018, at around 12:48 pm, when he, his brother and other

family members were running the shop in Shobha Market,

suddenly, Khurshid Qurashi, Md. Naiyer, Raju Khan, Babli

Miyan, Abdullah Qureshi, Sarla Miyan, Ahmad Miyan,

Shamsher Miyan and Taushif Miyan, all residents of Mohalla-

Milki and Kasai Tola, P.S.- Ara Town, District- Bhojpur and 4-5

unknown persons came to the shop and demanded

Rs.10,00,000/- (Ten Lakh) as extortion money. When his brother

denied to pay the said amount, all the accused persons took out

pistol from their lower back and started hurling abuses. When

his brother Imran opposed, Khurshid Qurashi and Naiyer Miyan

opened indiscriminate firing upon Imran because of which he

died on the spot. At the same time, Babli Miyan and Shamsher

Miyan also opened fire with an intention to kill him and a bullet

hit him in his abdomen as a result of which he became

unconscious. When he regained consciousness, he came to

know that one another person had also sustained gun shot injury Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

in the said incident. He attributed the motive for the said

incident to be demand of Rs.10,00,000/- as extortion money by

the accused persons because he and his family members had

purchased a shop in the Shobha Market.

8. Upon receipt of the aforesaid written report, Jay

Prakash Singh, Station House Officer (for short 'SHO') of Ara

Town Police Station handed over the investigation of the case to

Jay Prakash Rai, a Sub-Inspector of Police (P.W.9). He

registered Ara Town P.S. Case No.739 of 2018 on 06.12.2018

under Sections 387, 302, 307 read with 34 of the IPC and

Section 27 of the Arms Act against altogether nine named

accused persons and 4-5 unknown accused persons.

9. While the investigation was still continuing, Jay

Prakash Rai (P.W.9) was transferred to a different police station.

He handed over the investigation of the case to J. P. Singh, the

SHO of Ara Town Police Station on 31.12.2018. Subsequently,

the investigation of the case was handed over to one

Rahmatullah (P.W.10) who took over the investigation of the

case on 19.01.2019. After completing investigation, he

submitted charge sheet vide Charge Sheet No.84 of 2019 dated

07.03.2019 under Sections 387, 302, 307, 120B of the IPC and

Section 27 of the Arms Act finding the allegations made in the Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

FIR to be true.

10. After complying with the statutory requirements

under Section 207 of the CrPC, the learned Chief Judicial

Magistrate, Ara committed the case to the court of sessions for

trial.

11. On receipt of the record from the court of Chief

Judicial Magistrate, Ara, learned Sessions Judge, Ara transferred

the case to the court of Additional Sessions Judge,IXth, Ara.

12. Thereafter, the appellants were charged for the

offences punishable under Section 302 read with 34, 387 read

with 34, 307 read with 34, 120B of the IPC and Section 27 of

the Arms Act to which they did not plead guilty. Hence, the trial

commenced.

13. During trial, the prosecution examined altogether

ten witnesses and proved certain documents in support of

charges.

14. Akil Ahmad (P.W.1), who is the informant of the

case as well as an injured victim, stated in his testimony that the

incident took place on 06.12.2018 at 12 noon. At that time, he

had gone out of his shop for chewing betel leaves. He heard a

sound of firing and when he came back to his shop at Shobha

Market, he saw that his brother Imran had sustained gun shot Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

injury and was lying on the ground. In the meantime, a gun shot

hit him in his back as a result of which, he fell down and

became unconscious. He stated that due to the gun shot injury,

his brother died on the spot. He proved his signature on the

inquest report, production-cum-seizure list dated 06.12.2018

and the written report dated 06.12.2018, which were marked as

Exhibits-1, 2 and 3 respectively. He stated in his examination-

in-chief that he had not seen who fired those gun shots or who

fired upon him or his brother. At this stage, he was declared

hostile by the Court at the request of the prosecution.

15. He was cross-examined by the prosecution. He

denied the contents of the written report. He further stated that it

is wrong to allege that he is helping the accused persons and,

therefore, he has turned hostile. He was also cross-examined by

the accused persons in which he stated that he is not the scribe

of the written report. He admitted that he is not literate. He

further admitted that he had simply put his signature on the

written report, the contents of which were never read over to

him. He admitted that when the incident took place there was

none except him and his brother at the place of occurrence. He

had become unconscious after sustaining gun shot injury and

when he regained consciousness, he found himself in the Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

hospital. Thereafter, his brother Suhaib had come from his

house. He stated that at the time of occurrence, the accused

persons had covered their faces. He further stated that accused

persons facing trial were not involved in the commission of the

crime.

16. Amir Faiyaj (P.W.2) stated in his examination-in-

chief that the incident took place on 06.12.2018 between 12:00

and 12:30 pm At that time, he was present at his shop in Shobha

Market situated at Dharman Chowk, Ara. His brothers, namely,

Imran (deceased), Akil (P.W.1), Suhaib (P.W.4) and Sohail (not

examined) were present in the shop. At that time, during an

argument between Akil and Khurshid Ahmad and his friends

Naiyer etc., bullets were fired. The first bullet fired by the

accused persons hit Akil in his abdomen and head. Thereafter,

Imran was hit by numerous rounds of firing in his head,

abdomen and chest. He further stated that he had not seen who

fired those gun shots because there were several persons present

on the spot. He identified his signature on the seizure list, which

was marked as Exhibit-2/1.

17. In cross-examination, he identified Ahmad Mian,

who was present in the dock. He admitted that his statement was

not recorded by the police during investigation. He further Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

admitted that he is coming for the first time before the court to

depose as a witness.

18. Md. Farukh (P.W.3) stated in his testimony that

on 06.12.2018 when the incident took place, he was busy doing

cable work relating to telephone no.222677 at Dharman Chowk.

Suddenly, he sustained a gun shot in his thigh and his treatment

was done at the Sadar Hospital, Ara. In the examination-in-chief

itself, he stated that he had no knowledge as to who had fired at

him.

19. Suhaib (P.W.4) stated in his testimony that the

incident took place at about 12:30 pm on 06.12.2018. At the

relevant time, he along with his brothers Akil Ahmad (P.W.1),

Md. Suhail and Imran were present in his shop situated at

Shobha Market. Apart from them, Amir Faiyaj and Md. Saddam

were also present there. In the meantime, Khurshid Qurashi,

Naiyer Quraishi, Raju Khan, Babli Miyan, Abdullah Qureshi,

Shamsher, Guddu Mian, Sarala Miyan, Taushif Miyan and

Ahmad Miyan came there and asked his brother as to why they

have not sent the ransom amount of Rs.10 lakh. They had earlier

demanded ransom amount from his brother Imran. He further

stated that he told the accused persons that they have recently

opened the shop and they do not have the capacity to pay Rs.10 Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

lakh. He told them that all the brothers can jointly afford to pay

Rs.5 lakh only. Upon this, they started abusing him and his

brothers, which was opposed by them. Thereafter, the accused

persons took out pistol from their lower back and resorted to

indiscriminate firing causing injury to his brother Akil Ahmad in

his abdomen as a result of which he fell down and his brother

Imran on his nose, neck, chest and both legs. Some of the

accused persons were firing outside the shop also to create terror

in the mind of the persons, who had assembled outside the shop

as a result of which one Farooq, an employee of BSNL

sustained gun shot injury in his leg. He stated that just after the

occurrence, he and Imran on one rickshaw and P.W.1 Akil

Ahmad, P.W.2 Amir Faiyaz and Md. Suhail on another rickshaw

went to the Sadar Hospital, Ara where the doctor declared Imran

as brought dead and Akil Ahmad was receiving treatment. At the

Sadar Hospital Ara, on 06.12.2018, the inquest report of his

brother Imran was prepared by the Police Officer of Ara Town

Police Station on which he put his signature. He proved his

signature, which was marked as Exhibit-1/1. He stated that on

05.01.2019, the police had come to his shop and seized the

CCTV footage. He and Amir Faiyaj had put their signature on

the seizure list. He identified his own signature and the Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

signature of Amir Faiyaj, which were marked as Exhibit-2/1 &

2/2 respectively. He identified the accused persons in the dock.

20. In cross-examination, P.W.4 admitted that the

deceased Imran and Suhail were sent to jail in connection with a

case under the Bihar Prohibition and Excise Act. He further

admitted that there was a case pending against him and his

deceased brother Imran for assaulting police personnel and in

that case he had been sent to jail for 5-6 days. He stated that the

place of occurrence is a busy market. At the relevant time, he

was standing at a distance of 2 feet from the miscreants, who

had resorted to 3-4 rounds of firing upon him, but he escaped

unhurt. He stated that all the accused persons were firing from

one direction. According to him, blood had fallen on the ground

to a great extent. He admitted that he had informed the police

regarding the incident at 12:45 pm from his mobile

no.9431822292 on the date of occurrence itself. On receiving

the call, Daroga Ji had come at the hospital at 12:55 pm At that

time, he had also reached at the Sadar Hospital. However, he

came back from the hospital to the place of occurrence within

two minutes. When he came back, the Daroga recorded his

statement at about 1:10 pm on 06.12.2018. At that time, he

stayed at his shop for merely 15-20 minutes. Subsequently, the Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

Daroga came to his house where inquiries were made from him

between 5:30 and 6:00 pm. He put his signature on the inquest

report brought by the Daroga at his residence. He admitted that

he did not see the signature of his brother on the inquest report.

He further admitted that his statement was subsequently

recorded by the police at 6 pm at the police station. He had

admitted that when he gave his statement to the police for the

first time his family members were present there. In his further

cross-examination, he admitted that the incident had taken place

in the stairs of Shobha market. He admitted that he had

intimated the police on telephone at 12:45 pm, when he was

taking Imran to hospital on rickshaw. He admitted that when he

came back to his shop at about 1:10 pm from the hospital on the

date of occurrence, the police party was busy in inspecting the

place of occurrence and the Daroga was recording something in

his diary. He admitted that when the Daroga had come to the

hospital also, he was recording something in the diary. He

admitted that whatever he had disclosed to the police was being

recorded in the diary by the Daroga. He had denied the defence

suggestion that he had falsely deposed before the court.

21. Dr. Jitendra Nath Mishra (P.W.5) stated in his

testimony that he was posted as Medical Officer at Ara Sadar Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

Hospital. He had conducted the postmortem examination on the

body of the deceased Imran at 3:10 pm on 06.12.2018 and found

the following antemortem injuries on his person:-

a) 1st entry wound-Lacerated inverted wound 1/2 inch X 1/2 inch X cavity deep over route of nose (right side).

b) IInd entry wound- Lacerated, inverted wound of size 1/2 inch X 1/4 inch X cavity deep over right cheek.

c) IIIrd entry wound-Lacerated, inverted wound of size 1/2 inch X 1/2 inch X cavity deep over right side of upper neck.

d) IVth entry wound- Lacerated, inverted wound size 1 inch X 1 inch X cavity deep, just below right clavicle (Lateral side).

e) Vth entry wound-Lacerated, inverted wound of size 1 inch X 1 inch X cavity deep on upper chest, 1 inch right from the middle.

f) VIth entry wound- Lacerated, inverted wound of size 1/2 inch X 1/2 inch X cavity deep on right chest above and medial to right nipple.

g) VIIth entry wound- Lacerated, inverted wound of size 1/2 inch X 1/2 inch X cavity deep at right inguinal region.

h) VIIIth Exit wound- Lacerated, everted wound of size 3/4 inch X 3/4 inch X cavity deep at posterior to left ear.

i) IXth Exit wound- Lacerated, reverted wound of Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

size 3/4 inch X 3/4 inch X cavity deep on left chest on back side.

j) Xth Exit wound- Lacerated, everted wound of size 3/4 inch X 3/4 inch deep over left iliac crest.

k) XIth Exit wound- Lacerated, everted wound of size 1 inch X 1 inch X cavity deep on upper natal cleft (2 inch lateral to mid line).

l) XIIth Exit wound- Lacerated, everted wound of size 3/4 inch X 3/4 inch X cavity deep on anterior aspect or left upper thigh.

m) XIIIth Exit wound- Lacerated, everted wound of size 3/4 inch X 3/4 inch X cavity deep at upper thigh (left lateral).

n) XIVth Exit wound-Lacerated, everted wound of size 3/4 inch X 3/4 inch X cavity deep on posterior thigh.

22. According to him, the time elapsed since death was

6 to 36 hours and the cause of death was shock and

haemorrhage caused by the abovementioned firearm injuries. He

proved his writing and signature on the postmortem examination

report, which was marked as Exhibit-4. He stated that he had

held the postmortem examination on the body of the deceased

Imran in presence of Dr. M. H. Ansari and Dr. Sujit Kumar.

23. In cross-examination, P.W. 5 stated that all wound

of entries are situated on the right side of body of the deceased Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

meaning thereby that the injuries were caused from the right

side of the body of the deceased. He stated that he cannot say

the distance from which the firing was done at the deceased. He

further admitted that rigor mortis was present on the whole body

of the deceased. He stated that rigor mortis develops within 3 to

6 hours. He could not say when rigor mortis develops on the

whole body of the deceased. However, he stated that normally

rigor mortis starts disappearing after 36 hours of the death of the

deceased.

24. Dr. Sujit Kumar (P.W.6) stated in his

examination-in-chief that on 06.12.2018, he was posted as

Medical Officer at Sadar Hospital, Ara. On this date, a medical

team was constituted for conducting the postmortem

examination on the person of the deceased Imran. He was one of

the members of that team. He stated that the postmortem

examination of the deceased Imran was done in his presence and

the report was prepared before him over which he had put his

signature. He identified his signature, which was marked as

Exhibit-4/1.

25. Dr. Md. Mobinul Haque Ansari (P.W.8) stated in

his examination-in-chief that on 06.12.2018, he was posted as

Medical Officer at Sadar Hospital, Ara. On this date, he was Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

made a member of the team constituted for conducting the

postmortem examination on the body of the deceased Imran.

He identified his signature on the postmortem examination

report, which was marked as Exhibit-4/2.

26. Dr. Arun Kumar (P.W.7) stated in his testimony

that he had examined the injured Akil Ahmad in the Emergency

Ward at Ara Sadar Hospital on 06.12.2018 and found a lacerated

wound 1 inch X 1/4 cm X 1/4 cm in left lower side of his

abdomen. He advised for ultra sound and X-ray of abdomen.

The opinion regarding the nature of injury was kept reserved till

the receipt of the X-ray report. Since the X-ray report showed

that no bony injury was caused on the person of the injured Akil

Ahmad, the nature of injury was opined to be simple. He

identified his own writing and signature on the injury report,

which was marked as Exhibit-5/1.

27. In cross-examination, he stated that he cannot say

as to who had brought the injured before him in the Emergency

Ward. He stated that he cannot say the distance from which

firing was made. He further admitted that there was no

blackening at the place of injury. He denied that he was known

to the injured Akil Ahmad from before and he had issued the

injury report just in order to help him due to old acquaintance. Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

28. Jay Prakash Rai (P.W.9), the first investigating

officer of the case stated in his testimony that he was handed

over investigation of Ara Town P.S. Case No.739 of 2018 by the

SHO, Jay Prakash Singh on 06.12.2018. He stated that the

formal FIR of Ara Town P.S. Case No.739 of 2018 was in the

writing of an Assistant Sub-Inspector of Police, namely,

Jagniwas Sharma and the formal FIR was duly signed by the

SHO, Jay Prakash Singh. He identified and proved the signature

of the SHO, Jay Prakash Singh, which was marked as Exhibit-

3/1. The seizure list was prepared by the Assistant Sub-

Inspector, Pawan Kumar Singh. He identified the signature of

Pawan Kumar Singh on the seizure list, which was marked as

Exhibit-3/2. He stated that the inquest report of the deceased

was prepared by one Ramanuj Singh, a Sub-Inspector of Police.

He identified the signature and writing of Ramanuj Singh,

which was marked as Exhibit-1/2. He stated that he received the

copy of the FIR and seizure list after the investigation was

handed over to him. Thereafter, he recorded the subsequent

statement of the informant Akil Ahmad. The informant had

supported the contents of the FIR in his subsequent statement.

Thereafter, he perused the seizure list and inspected the place of

occurrence. He recorded the statements of the witnesses, Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

namely, Md. Suhaib Ahmad and Md. Farooq. He apprehended

some of the accused persons. On 31.12.2018, he was transferred

to Aayar Police Station whereafter he handed over the

investigation to the SHO, J. P. Singh.

29. In his cross-examination, he admitted that he came

to know about the incident at 2 pm. At that time, he was at Ara

Nawada Town Police Station. At 6 pm, the case was registered

and he was handed over its investigation. He admitted that even

before the FIR was registered, the seizure list was prepared at

1:30 pm and the inquest report was prepared at 1:45 pm on

06.12.2018. He admitted that he had not recorded the statements

of the police officers, who had prepared the seizure-list and the

inquest report. He admitted that he inspected the place of

occurrence at 7:35 pm. He stated that he tried to record the

statement of other shopkeepers of Shobha Market, but none of

them was ready to give his statement. He left the place of

occurrence at about 8:05 pm. He denied the defence suggestion

that the incident was reported to him by Suhaib on mobile

phone. He further admitted that Suhaib had not stated before

him that Amir, Faiyaj and Md. Saddam were also present at the

place of occurrence. He admitted that Suhaib had not stated

before him the names of Khurshid Qurashi, Abdullah Qureshi, Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

Raju Khan, Naiyeb Quraishi, Babli Miyan, Shamsher and

Guddu Miyan as the persons who had asked from him as to why

extortion demand amounting to Rs.10 lakh was not sent to them.

He had also not stated before him that he told the accused

persons, who were demanding extortion amount that since he

had opened the shop recently, he and his brother can afford to

pay only Rs.5 lakh. He admitted that the distance of the police

station from the place of occurrence is hardly 500 meter and it

takes 5 to 10 minutes to reach at the place of occurrence from

the police station on foot. He admitted that he had received a

phone call regarding the incident on his mobile no.7004118107.

The incident was reported to him on his phone by a Sub-

Inspector of Ara Town Police Station, namely, Manoj. He

admitted that he did not record the statement of the aforesaid

Sub-Inspector in the case-diary. He further admitted that when

he reached at the place of occurrence, none of the family

members of the deceased was present there. He also admitted

that he did not seize any weapon relating to crime.

30. Rahmatullah (P.W.10) is the second Investigating

Officer of the case. He stated in his testimony that he took over

the investigation of the case under the orders of SHO, Jay

Prakash Singh on 19.01.2019. After taking over investigation of Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

the case, he recorded the statements of witnesses, namely, Amir

Faiyaj, Suhail Ahmad and Akil Ahmad. On finding the

allegations made in the FIR to be true during investigation, he

submitted Charge Sheet No.84 of 2019 on 07.03.2019 under

Sections 387, 302, 307 and 120B of the IPC and Section 27 of

the Arms Act against Khurshid Qurashi, Md. Naiyer and Anwar

Quraishi @ Sarla Mian. He continued with further investigation

of the case after submitting charge sheet.

31. In his cross-examination, he admitted that he had

shown CCTV footage of Shobha Market to Md. Suhail, which

was produced by him as Material Exhibit-1 before the court.

However, he could not locate Ahmad Miyan, Abdullah Qureshi

and Khurshid Qurashi in the CCTV footage. He further admitted

that during investigation, he had not found the accusation

against Ahmad Miyan to be true. He admitted that during

investigation Md. Suhail had not stated that Md. Amir Faiyaj

and Md. Saddam were present at the place of occurrence. He

admitted that he had not prepared the seizure list of the CD

containing CCTV footage. There is no mention in the seizure

list that the said CD was in sealed cover. He admitted that he

had sent the CD to FSL, Patna, but it was reported that the

examination of CD is not done at FSL, Patna. He admitted that Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

during investigation, he did not record the statement of the

owner of the Shobha Market or her family members.

32. After examination of P.W.10, the prosecution

closed its case. Thereafter, in order to enable the appellants to

explain the circumstances appearing against them, the Trial

Court recorded their statements under Section 313 of the CrPC

in which they denied the charges and pleaded their innocence.

33. The defence did not lead any oral or documentary

evidence during trial.

34. Since the defence did not lead any evidence during

trial, the Trial Court closed the defence case.

35. Thereafter, arguments advanced on behalf of the

parties were heard and, on appreciation of evidence on record,

the Trial Court held the appellants guilty to the charges noted

hereinabove vide impugned judgment dated 09.03.2021 and

sentenced them vide impugned order dated 14.06.2021.

36. Mr. Keshav Shrivastava, learned senior counsel for

the appellant Taushif Miyan @ Taushif Alam @ Md. Taushif

Alam @ Tausif Ahmad in Criminal Appeal (DB) No.542 of

2021 submitted that the impugned judgment and order has been

passed by the Trial Court only on the basis of testimony of

P.W.4, who illegally claimed to be an eye witness of the Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

occurrence. He contended that there is no eye witness in respect

of the accusation against the appellant Taushif Miyan. He

submitted that the Trial Court failed to appreciate that P.W. 1 in

para-14 of his cross-examination stated that at the place of

occurrence, nobody was present except him and his deceased

brother. He further stated that when he regained consciousness

at the hospital, his brother Suhaib (P.W.4) came from home,

which falsifies the case of the prosecution. He submitted that the

Trial Court failed to appreciate that P.W.9, who was the first

Investigating Officer of the case admitted in his testimony that

no drop of blood was found at the place of occurrence. He

contended that the Trial Court failed to appreciate the

fundamental principles of sentencing. It failed to appreciate the

correct meaning of rarest of rare case. It had ignored the vital

aspects of the case in favour of the appellant and convicted him

on conjecture and surmises.

37. Mr. Jitendra Singh, learned senior counsel for the

appellants Babli Miyan, Abdullah Qureshi, Khurshid Qurashi

and Anwar Quraishi @ Sarla Miyan in Criminal Appeal (DB)

No.538 of 2021 submitted that the impugned judgment of

conviction passed by the Trial Court is illegal, perverse,

unwarranted and against the materials on record. He submitted Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

that out of ten witnesses examined on behalf of the prosecution,

P.W.1, who is the informant of the case has himself disowned

the contents of the FIR and demolished the case of the

prosecution. Similarly, P.W.2 has specifically stated in his

deposition that he had not seen any accused person using gun to

shoot anyone. He stated that he does not know as to who fired

causing injury to the deceased Imran and the injured Akil

Ahmad. P.W.3 stated in his testimony that when he was

troubleshooting a telephone line, a bullet hit his thigh. He

further contended that though P.W.4 claims himself to be an eye

witness, his testimony does not inspire confidence. He

contended that though the incident took place in a busy market,

no independent witness has been examined in the present case.

He argued that in present case, the institution of the FIR was

belatedly made by the prosecution. The version on which the

FIR has been instituted is not the first version which reached to

the police regarding a cognizable offence. According to him,

even the place of occurrence was not established by the

prosecution. The CCTV footage firstly does not prove anything

against the appellants and, secondly, the same is not admissible

in evidence, as being a secondary electronic evidence, it was not

proved in terms of the statutory requirements under Section 65B Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

of the Indian Evidence Act. He urged that the reasons assigned

by the Trial Court for coming to the conclusion of guilt against

the appellants did not find support from the factual matrix and

the evidence of the case.

38. Mr. Vikram Deo Singh, learned counsel for the

appellant Raju Khan @ Raju Kha in Criminal Appeal (DB)

No.534 of 2021 submitted that there is no direct or

circumstantial evidence to attract the involvement of appellant

Raju Khan @ Raju Kha in the present case. He contended that

the Trial Court failed to scrutinize the prosecution evidence and

convicted the appellant in absence of any evidence against him.

He argued that once the informant denied that the written

statement was not scribed by him and stated that he only put his

signature on it and admitted in his testimony that the written

statement was not read over to him, the very initiation of the

criminal prosecution against the appellant on the basis of the

FIR in question is bad in law. He submitted that the testimonies

of P.W.2 and P.W.3 did not incriminate the appellant in any

manner. The conflicting stand of P.W.4 in the present case

makes him a totally unreliable witness. He submitted that apart

from the aforesaid four witnesses, the remaining witnesses are

doctors, who either conducted the postmortem examination on Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

the body of the deceased or examined the injured informant of

the case and the police officers who investigated the case. Their

testimonies do not indicate anything on the basis of which a

conclusion of guilt against the appellant could have been arrived

by the Trial Court. He urged that the Trial Court failed to

scrutinize the prosecution evidence properly and convicted the

appellant without any evidence and as such the impugned

judgment and sentence are erroneous and fit to be set aside.

39. Mr. Pratik Mishra, learned counsel for the

appellant Ahmad Miyan @ Ahmad @ Ahmad Hussain in

Criminal Appeal (DB) No.470 of 2021 submitted that there was

an inordinate delay of about six hours in the institution of the

FIR when the police station was just 500 metre away from the

place of occurrence and the police had arrived at the place of

occurrence within few minutes. The undue delay caused in the

institution of the FIR when the witnesses were present at the

place of occurrence and the police reached there immediately

after the occurrence creates a serious doubt about the veracity of

the prosecution case. He contended that the FIR becomes a

suspicious document also because the same was instituted after

the major part of the investigation was over. He argued next that

the genesis of occurrence and the place of occurrence could not Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

be proved by the prosecution. He contended that in the instant

case, the informant, who is an injured witness, did not support

the case of the prosecution. The other prosecution witnesses

examined in the instant case except P.W.4 have also not

supported the prosecution case as narrated in the FIR. Insofar as

P.W.4 Suhaib is concerned, though he claims to be an eye

witness to the incident, his testimony would clearly prove that

he is a thoroughly unreliable witness. He contended that medical

evidence in the present case is highly inconsistent with the

prosecution story. The doctor (P.W.5), who conducted the

postmortem examination on the body of the deceased stated that

the time elapsed since death was 6 to 36 hours whereas the

postmortem examination on the body of the deceased was

conducted within 3 hours of the commission of the crime.

Lastly, he contended that the non-examination of the material

witnesses like the police officers, who lodged the FIR formally,

prepared the inquest report and the seizure list on the date of

occurrence, has caused serious prejudice to the defence case. He

urged that the findings of the Trial Court are erroneous as the

prosecution has miserably failed to prove its case beyond

reasonable doubts.

40. Mr. J. P. Singh, learned amicus curiae appearing in Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

Death Reference No.06 of 2021 submitted that in the instant

case, the Trial Court has not appreciated the evidence on record

properly. He contended that virtually it is a case of no evidence.

P.Ws.1 to 3 have not uttered the name of any of the accused

persons involved in the crime. Their evidence is of no

consequence so far as the prosecution case is concerned. Insofar

as P.W.4 is concerned, there are major contradictions as to the

material and vital aspects in his testimony. He contended that

though P.W.4 stated that huge quantity of blood had fallen at the

place of occurrence, the Investigating Officer stated in his

testimony that he did not find a single drop of blood at the place

of occurrence. He submitted that the FIR was belatedly

instituted on a written report which was collected during

investigation of the case and the same was hit by Section 162(1)

of the CrPC. He submitted that as per P.W.4, blood mark

inflicted on his cloth including his T-shirt was given by him to

the Investigating Officer. Neither T-shirt has been exhibited in

the seizure list nor any such material was produced before the

Trial Court. He submitted that the genesis of occurrence has not

been proved by the prosecution. The very reason for the alleged

occurrence is demand of ransom of Rs.10 lakh by the accused

persons. P.W.1 has denied to be the author of the written report Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

and P.W.9 stated in his testimony that he does not know who

had written the written report and when and where it was

written. He contended that P.W.4 stated in his testimony that he

had stated before the police during investigation that the

accused persons told Imran (deceased) that why he did not send

the ransom of Rs.10 lakh. However, the Investigating Officer

has denied it and has stated that no such statement was made by

P.W.4 during investigation. He submitted that even if the

prosecution story is believed to be true, awarding death penalty

to all of the named accused in the instant case seems to be

erroneous and exaggerating. The guidelines issued by the

Supreme Court in Bachan Singh vs. State of Punjab, reported

in (1980) 2 SCC 684 and Machhi Singh & Ors. vs. State of

Punjab, reported in 1983 SCR (3) 413 for awarding death

sentence in the rarest of rare case have been overlooked by the

Trial Court.

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

Additional Public Prosecutor for the State being assisted by Mr.

Ravindra Kumar, learned counsel for the informant submitted

that the Trial Court has correctly appreciated the evidence on

record. The evidence of P.W.2 and P.W.1 is corroborating each

other. They are eye witnesses to the occurrence. They have fully Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

established the place of occurrence and the manner of

occurrence in their testimony. She contended that though P.W.1

turned hostile, he did not deny that he had put his signature on

the written report. She further contended that the medical

evidence is also in alignment with the oral testimony of the

witnesses. The doctor, who examined the injured and the doctor,

who conducted the postmortem examination on the body of the

deceased have clearly stated that they had received bullet

injuries on their person. She submitted that P.W.4 has given a

vivid description of the manner of occurrence and the role

played by the appellants in the said incident and, thus, it cannot

be said that the impugned judgment of conviction and order of

sentence are contrary to the evidence on record. She submitted

that the Material Exhibit-1 would also corroborate the

prosecution case.

42. We have heard the submissions advanced on behalf

of the parties and the learned amicus curiae and perused the

materials on record.

43. In the instant case, apart from the deceased, there

are two injured witnesses, namely, Akil Ahmad (informant) and

Md. Farukh (P.W.3). The informant has been declared hostile by

the Court at the request of the prosecution. He has stated in his Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

testimony that the written report which was given to the police

was not written by him and the contents of the written report

were not read over to him. He is illiterate and he had simply put

his signature over it. In his testimony, he contended that the

accused persons of the case were not involved in the alleged

occurrence. The other injured witness Md. Farukh stated in his

testimony that he has no knowledge as to who all had fired. He

stated that he cannot identify the accused persons who

committed the occurrence. He admitted that he is making the

statement for the first time in the court.

44. Apparently, the evidence of the two injured

witnesses do not incriminate the appellants in any manner.

Similarly, when we scrutinize the evidence of P.W.2 Amir

Faiyaj, we notice that he has stated that P.W.1 Akil Ahmad had

sustained firearm injury on his head and abdomen. However, the

doctor (P.W.7), who examined P.W.1 found only one lacerated

wound on his person in his left lower side of abdomen. He did

not find any injury on his head. Moreover, P.W.2 has also

admitted that he did not see who fired gunshots because there

were several persons present on the spot. He also admitted in

cross examination that his statement was not recorded by the

police during investigation and he was coming for the first time Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

in the court to depose as a witness.

45. Thus, the evidence of P.W.2, who turned up before

the court for the first time and whose statement was not

recorded during investigation by the police does not indicate

involvement of the appellants in any manner in the alleged

offence.

46. The only other eye witness in the present case is

P.W.4 Suhaib. He stated in his testimony that he informed the

police about the alleged occurrence on phone at 12:45 pm. He

further stated that on receiving his call, the Daroga came at the

hospital at 12:55 pm. At that time, he had also reached at the

Sadar Hospital. He came from the hospital to the place of

occurrence within two minutes and the Daroga recorded his

statement at about 1:10 pm. He stated that inquiries were made

from him by the police between 5:30 and 6 pm. and his

subsequent statement was recorded by the police at 6 pm on

06.12.2018. We have seen that the formal FIR was lodged by the

police at 6:30 pm on 06.12.2018. Therefore, as per evidence of

P.W.4, before institution of the formal FIR on the basis of a

written report submitted by P.W.1, he had given statement to the

police not once, but twice, i.e., at 1:10 pm and 6:00 pm and the

police had made inquiries about the incident from him between Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

5:30 and 6:00 pm on 06.12.2018.

47. Hence, either the earliest version has purposely and

deliberately been suppressed and not brought on the record by

the prosecution or the claim of P.W.4 to be present at the place

of occurrence is absolutely false.

48. It is pertinent to note here that P.W.4 stated in his

testimony that just after the occurrence, he and Imran on one

rickshaw and P.W.1 Akil Ahmad, Amir Faiyaj and Md. Suhail on

another rickshaw went to the Sadar Hospital, Ara. However,

P.W.1 has not supported this fact. He has stated in his testimony

that when he regained consciousness in the hospital, P.W.4 came

to the hospital from his house.

49. Neither P.W.1, who has been declared hostile nor

P.W.2 has stated in his testimony a word about the rickshaw

story as narrated by P.W.4. Even Suhail, who is none other than

the brother of the deceased as well as brother of the informant

and P.W.4, has not come forward to support the rickshaw story

of P.W.4 or the prosecution case.

50. The non-examination of Suhail coupled with the

fact that neither Amir Faiyaj (P.W.2) nor the informant (P.W.1)

has supported the rickshaw story, the claim of P.W.4 to be

present at the place of occurrence at the time of occurrence Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

becomes highly doubtful.

51. Further, while scrutinizing the testimony of P.W.4,

we find that he has stated that when the miscreants made 3-4

rounds of firing, he was present at the shop at a distance of two

feet only. It is surprising as to how he remained uninjured and

managed to escape when firing by the miscreants was being

made from such a close range.

52. At this stage, it would also be pertinent to note that

P.W.4 has stated in his testimony that he had singed the inquest

report at his house when Daroga came to his house. The inquest

report was prepared at the Sadar Hospital, Ara. He further stated

that he did not see the signature of his brother Akil Ahmad on

the inquest report. It would clearly mean that P.W.4 Suhaib was

not even present at the place of occurrence at the time of

preparation of the inquest report as the police had obtained his

signature on it later at his house.

53. It is evident from perusal of the inquest report that

P.W.1 is the first witness to the inquest report. It is surprising

that P.W. 4, who has signed the inquest report as the second

witness did not see the signature of P.W.1 Akil Ahmad. It may

be a reason as to why the police officer, namely, Ramanuj

Singh, who had prepared the inquest report has purposely been Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

withheld.

54. On the basis of the above discussions, we are of the

opinion that it has rightly been contended by the learned counsel

for the appellants in these appeals that P.W.4 is not a reliable

witness.

55. Insofar as, the place of occurrence is concerned,

though P.W.4 has stated in his testimony that the firing took

place inside the shop situated in the Shobha Market, the

Investigating Officer (P.W.9) Jay Prakash Singh stated in his

testimony that the occurrence took place in front of the Sobha

Market. Though, the prosecution witnesses have stated that

blood had fallen on the ground at the place of occurrence to a

great extent, the Investigating Officer (P.W.9) admitted in his

testimony that not a single drop of blood was found at the place

of occurrence. Thus, we are of the opinion that the defence

could not establish even the place of occurrence by leading

cogent evidence.

56. Coming back to the medical evidence, it would be

of salience to note that the postmortem examination on the body

of the deceased has been held by Dr. Jitendra Nath Singh

(P.W.5) at 3:10 pm on 06.12.2018. He stated in his evidence that

the time elapsed since death of Imran was 6 to 36 hours. Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

Therefore, the occurrence took place on or before 9:10 am on

06.12.2018, i.e., much before the time of occurrence mentioned

in the FIR.

57. Apart from that P.W.5 admitted in his cross-

examination that rigor mortis was present on the whole body of

the deceased. He stated that rigor mortis develops within 3 to 6

hours. Though, he stated that he cannot say when the rigor

mortis develops on the whole body, as per Chapter XIV of

Modi's Textbook of Medical Jurisprudence and Toxicology: 24

Edition, 2012, the time of onset of rigor mortis varies greatly in

different cases, but the average period of its onset may be

regarded as 3 to 6 hours after death in temperate climates, and it

may take 2 to 3 hours to develop. In India, it usually commences

in 1 to 2 hours after death. In temperate regions, rigor mortis

usually lasts for 2 to 3 days. In Northern India, the usual

duration of rigor mortis is 24 to 48 hours in winter and 18 to 36

hours in summer. On the basis of the study of various books on

Medical Jurisprudence, it can easily be inferred that in general,

rigor mortis sets in one to two hours after death and is well

developed from head to foot in about 12 hours. In the instant

case, the doctor stated that the rigor mortis had developed on the

body of the deceased when he had conducted the post mortem Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

examination within 3 hours of the death. This may be the reason

as to why he stated that he cannot say as to when rigor mortis

develops on the whole body. Thus, we are of the opinion that the

medical evidence is definitely not in alignment with the ocular

evidence relating to the time of incident and the death of the

deceased.

58. We have also noticed in the present case that the

police officers, who lodged the formal FIR, prepared the inquest

report and the seizure list on the date of occurrence have not

been examined by the prosecution. The havildar Yugal Manjhi,

who identified the deceased at the time of postmortem

examination has also not been examined. The Sub-Inspector of

Police, namely, Manoj of Ara Town Police Station, who had

informed the first Investigating Officer about the occurrence has

also been withheld. The full brother of the deceased Suhail, who

according to P.W.4, was present at the time of occurrence has

also not come forward to support the prosecution case. The non-

examination of these material witnesses without any reasonable

explanation from the side of the prosecution has caused serious

prejudice to the case of the defence.

59. It is reiterated that as per the prosecution case, the

alleged occurrence took place at 12:48 pm on 06.12.2018. P.W.9 Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

Jay Prakash Singh, the first Investigating Officer in para-43

admitted that the distance of the place of occurrence from the

police station is just 500 metre. He admitted that even before the

investigation was handed over to him, the seizure-list was

prepared at 1:00 pm and the inquest report was prepared at 1:45

pm on 06.12.2018. He admitted that he did not examine the

police officer, who had prepared the seizure-list and the inquest

report.

60. A perusal of the inquest report, which has been

marked as Exhibit-1 would make it clear that the same was

prepared by Ramanuj Singh, a Sub-Inspector of Police, Ara

Town Police Station in the Emergency Ward of Ara Sadar

Hospital at 1:45 pm on 06.12.2018 and P.W.1 Akil Ahmad and

P.W.4 Suhaib had put their signature over it as witness.

Similarly, the seizure list of empty cartridges and bullet marked

as Exhibit-2, was prepared at a place near Shobha Market at

Dharman Chowk at 1:30 pm on 06.12.2018 by one Pawan

Kumar Singh, a Sub-Inspector of Police, Ara Town Police

Station. The witnesses to the said seizure list are Raj Narayan

Singh Yadav and Sanjay Yadav. The aforesaid seizure list and

the inquest report would clearly prove that the police had

reached at the place of occurrence at 1:30 pm and at Ara Sadar Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

Hospital at 1:45 pm on 06.12.2018.

61. The injured informant and P.W.4, who are

witnesses to the inquest report were present when the police

arrived after receiving information. The Daroga recorded the

statement of P.W.4 at 1:10 pm at the place of occurrence, made

inquiries from him between 5:30 pm to 6:00 pm on 06.12.2018

and recorded his subsequent statement at 6 pm on 06.12.2018,

but the earliest statement recorded by the police has not been

treated as FIR. It is not known what happened to the earliest

information given to the police by P.W.4. The FIR has been

instituted on the basis of a written report submitted by P.W.1

belatedly at the police station at 6:30 pm on 06.12.2018, which

would be hit by Section 162(1) of the CrPC.

62. As seen above, though, the police reached at the

place of occurrence just after the occurrence and prepared the

seizure list as well as the inquest report and the postmortem

examination on the body of the deceased was held at 3:10 pm on

06.12.2018, there is no explanation as to why the FIR was not

promptly registered. The belated institution of the FIR after the

major part of the investigation was over and that too on the basis

of a written statement, which was not the first information

regarding a cognizable offence rather the same was collected by Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

the police during investigation creates a serious dent in the

prosecution case.

63. In Thulia Kali vs. State of T.N., reported in (1972)

3 SCC 393, the Apex Court has held that first information report

in a criminal case is an extremely vital and valuable piece of

evidence for the purpose of corroborating the oral evidence

adduced at the trial. The importance of the above report can

hardly be overestimated from the standpoint of the accused. The

object of insisting upon prompt lodging of the report to the

police in respect of commission of an offence is to obtain early

information regarding the circumstances in which the crime was

committed, the names of the actual culprits and the part played

by them as well as the names of eyewitnesses present at the

scene of occurrence. Delay in lodging the first information

report quite often results in embellishment which is a creature of

afterthought. On account of delay, the report not only gets bereft

of the advantage of spontaneity, danger creeps in of the

introduction of coloured version, exaggerated account or

concocted story as a result of deliberation and consultation. It is,

therefore, essential that the delay in the lodging of the first

information report should be satisfactorily explained.

64. It is well known that the object of FIR is to set the Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

criminal law in motion. It is the information given to the police

on the basis of which the criminal law is set in motion. It

enables the officer-in-charge of the police station to initiate the

investigation and to collect evidence as soon as possible.

Though, there is no duration of time which is fixed for giving

information of a crime to the police, if the police officer

deliberately fails to record the FIR on receipt of information of a

cognizable offence and registers FIR after considerable lapse of

time, the entire investigation gets contaminated. Many a time,

the faulty investigation leads to the collapse of the prosecution

case and the criminal justice system.

65. In State of Andhra Pradesh vs. Punati Ramulu

and Ors. reported in 1994 Supp (1) SCC 590, the Supreme

Court observed:

"The investigating officer has deliberately failed to record the FIR on receipt of information of a cognizable offence of the nature, as in this case, and had prepared the FIR after reaching the spot after due deliberations, consultations and discussions, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would be stopped to fabricate evidence and create false Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

clues".

66. In Mukesh and Ors. vs. NCT of Delhi and Ors.

reported in (2017) 6 SCC 1, the Supreme Court observed:

"Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors. Even a long delay can be condoned if the informant has no motive for implicating the accused."

67. The discussions made above would make it evident

that in the instant case, the police have deliberately failed to

institute the FIR on receipt of an information about a cognizable

offence of heinous nature and started investigation even without

registration of the case. The police failed to register the FIR

even after reaching the spot and commencing the investigation.

They allowed the injured and the deceased to be taken to the

Sadar Hospital, Ara where they prepared the inquest report and

handed over the body of the deceased to the doctor for Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

postmortem examination and the doctor commenced and

completed the postmortem examination at 3:10 pm on

06.12.2018. The institution of the FIR in the evening at 6:30 pm

on the basis of the written report by the injured Akil Ahmad

clearly gives an impression that the same was instituted after

due deliberations, consultations and discussions. Thus, in view

of the observations made by the Supreme Court in Punati

Ramulu (supra) and Mukesh and Ors. (supra), it can safely be

said that it would be highly unsafe to rely upon such a tainted

investigation, as one would not know to what extent the police

officers fabricated evidence and created false clues.

68. The CCTV footage of Sbobha market (Material

Exhibit-1) is a secondary electronic evidence. The same was not

proved in terms of the statutory requirements under Section 65-

B of the Indian Evidence Act. Hence, it is not admissible in

evidence. Even otherwise the 2nd Investigating Officer, who

produced it before the court, did not utter anything relevant

against the appellants in the CCTV footage. Thus, the Material

Exhibit-1 is of no help to the case of the prosecution.

69. 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 appellants. Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

70. For all the reasons discussed above, the appeals are

allowed. The impugned judgment of conviction dated

09.03.2021 and the consequent order of sentence dated

14.06.2021 passed in Session Trial No.117 of 2019 arising out

of Ara Town P.S. Case No.739 of 2018 by the learned

Additional Sessions Judge-IXth, Bhojpur at Ara are,

accordingly, set aside.

71. The appellants, namely, Ahmad Miyan @ Ahmad

@ Ahmad Hussain (in Criminal Appeal (DB) No.470 of 2021),

Raju Khan @ Raju Kha (in Criminal Appeal (DB) No.534 of

2021), Babli Miyan, Abdullah Qureshi, Khurshid Qurashi and

Anwar Quraishi @ Sarla Miyan (in Criminal Appeal (DB)

No.538 of 2021) and Taushif Miyan @ Taushif Alam @ Md.

Taushif Alam @ Tausif Ahmad (in Criminal Appeal (DB)

No.542 of 2021) are acquitted of the charges levelled against

them. They shall be released from the jail forthwith unless they

are required in any other case.

72. Since, we have allowed the appeals and set aside

the impugned judgment of conviction and the consequent order

of sentence passed by the Trial Court, the reference made by the

Trial Court for confirmation of death sentence vide Death

Reference No.06 of 2021 is, hereby, rejected.

Patna High Court D. REF. No.6 of 2021 dt.17-08-2022

73. Before parting with the death reference and these

appeals, we would record our appreciation for the able

assistance rendered by Mr. J. P. Singh, learned amicus curiae.

74. The Patna High Court, Legal Services Committee

is, hereby, directed to pay Rs.7500/- to Mr. J. P. Singh, learned

amicus curiae in Death Reference Case No.06 of 2021 as a

consolidated fee for the services rendered by him.

(Ashwani Kumar Singh, J)

( Harish Kumar, J)

kanchan/-

AFR/NAFR                AFR
CAV DATE                27.07.2022
Uploading Date          17.08.2022
Transmission Date       17.08.2022