Shiv Chandra Tiwari And Anr vs State Of Bihar
2023 Latest Caselaw 1227 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.255 of 1995
======================================================

1. Shiv Chandra Tiwari, son of Late Baijnath Prasad Tiwari

2. Kumod Kumar Tiwari @ Mantu, son of Shiv Chandra Tiwari, Residents of village Sonepur Gor Toli, Police Station-Katra, District-

Muzaffarpur.                                                   ... ... Appellants
                                    Versus
The State of Bihar                                            ... ... Respondent

====================================================== with CRIMINAL APPEAL (DB) No. 287 of 1995 ====================================================== Pramod Kumar Tiwari @ Munna De, son of Sheo Chandra Tiwari, resident of village -Sonpur Goartoli, Police Station- Katara, District- Muzaffarpur.

                                                                 ... ... Appellant
                                    Versus
The State of Bihar                                           ... ... Respondent

====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 255 of 1995) For the Appellants : Mr. Ajay Kumar Thakur, Mr. Ritwik Thakur and Mrs. Vaishnavi Singh, Advocates For the Respondent : Mr. Sujit Kumar Singh, APP (In CRIMINAL APPEAL (DB) No. 287 of 1995) For the Appellant : Mr. Ajay Kumar Thakur, Mr. Ritwik Thakur and Mrs. Vaishnavi Singh, Advocates For the Respondent : Mr. Sujit Kumar Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 29-03-2023

The aforesaid criminal appeals have been filed in the year

1995 i.e. 27 years ago. They arise out of common judgment of

conviction and order of sentence dated 16.08.1995. Therefore,

after being heard together, they are being disposed of by a

common judgment.

Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

2. By the judgment of conviction and order of sentence

dated 16.08.1995 passed by Sri Mishri Lall Choudhary, 2 nd Addl.

District and Sessions Judge, Muzaffarpur in Session Trial No.

267/90 / 76/94, arising out of Katra P.S. Case No. 1/90

corresponding to G.R. No. 11/90, Tr. No. 394 of 1994, the

appellants namely Shiv Chandra Tiwari, Kumod Kumar Tiwari

@ Mantu (appellants in Cr. Appeal (DB) No. 255 of 1995) and

Pramod Kumar Tiwari @ Munna De (appellant in Cr. Appeal

No. 287 of 1995) have been convicted under sections 302/34 of

Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and

have been sentenced to undergo rigorous imprisonment for life.

The Trial Court has further convicted the appellant Pramod

Kumar Tiwary @ Munna De (appellant in Cr. Appeal No. 287 of

1995) under section 27 of the Arms Act and under section 323 of

I.P.C. and has directed the appellant to undergo R.I. for one year

under section 27 of the Arms and R.I. for one month under

section 323 of I.P.C. All the sentences awarded to the appellant

Pramod Kumar Tiwari @ Munna De have been directed to run

concurrently.

3. The prosecution case, as per the fardbeyan of informant

Manish Kumar Tiwary recorded on 01.01.1990 at 07.15 p.m. is

that on the same day when the informant was at his darwaza at Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

about 06:00 p.m. in the evening, accused Manoj Kumar Tiwary,

Pramod Kumar Tiwary, Kumod Kumar Tiwari, Shiv Chandra

Tiwari and three unknown persons came there and accused

Manoj Kumar @ Chunu Tiwari went into the angan of the

informant and opened fire which was heard by the informant. It

has been further stated that informant Manoj Kumar Tiwari @

Chunu came out of his house stating that Krishna Chandra Tiwari

is not at home and thereupon, Shiv Chandra Tiwari asked to

search and kill him. The informant further stated that he went out

of the house near the Ghur whereafter all the accused persons

came there and asked him regarding the whereabouts of his father

on which the informant showed his ignorance and thereafter the

accused persons assaulted him with fists. The informant's elder

brother was also there on which accused Pramod Kumar @

Manna De fired with his gun, but the same did not hit him.

Thereafter, all the accused persons went away from there. The

further case of the prosecution is that on hearing the sound of

firing, the informant and others reached near the house of Radhe

Shyam Mishra where the informant saw his father Krishna

Chandra Tiwari lying in injured condition and blood was oozing

out from his eyes and also saw that Manoj Kumar Tiwari @

Chunu Tiwari, Pramod Kumar Tiwari @ Manna De and Kumod Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

Kumar Tiwari @ Mintu were fleeing away. On hulla, many

people of the village reached at the place of occurrence and the

informant's father told that the accused Manoj Kumar Tiwari @

Chunu fired at him due to which he sustained injury. It is further

case of the prosecution that the occurrence is witnessed by Ram

Swaroop Tiwari and Vinod Jha and the reason for the occurrence

is partition of land. Thereafter, the elder brother of the informant

took his father to the hospital for treatment at Darbhanga

Hospital.

4. The police after registration of the case carried

investigation. On account of the death of the injured, Section 302

I.P.C. was added. After completion of investigation, the police

submitted charge-sheet against the accused persons under

Sections 147, 148, 149, 323, 307 and 302 of I.P.C. The

cognizance of the offence was taken by the learned jurisdictional

Magistrate and thereafter the case was committed to the Court of

Sessions. Charges were framed against the accused persons who

pleaded not guilty and claimed to be tried.

5. During the trial, in order to substantiate the charges

against the accused persons, the prosecution examined as many

as fourteen witnesses, namely, P.W.-1 Naresh Singh, P.W.2 Ram

Swarath Tiwari, P.W.3 Ram Narain Tiwari, P.W.4 Vinod Jha, Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

P.W.5 Ramji Purve, P.W.6 Lalu Bhandri, P.W.7 Sharda Devi,

P.W.8 Navin Kumar Tiwari, P.W.9 Manish Tiwari, P.W.10 Dr.

Atul Kumar Malik, P.W.11, Braj Kishor Prasad, P.W.12 Jaglal

Ram, P.W.13 Ram Kumar Singh and P.W.14 Ram Janam Thakur.

The prosecution has also produced exhibits namely Ext. 1

signature of Ram Narain Tiwary on seizure list. Ext. 1/1

signature of Pheku Mishra on seizure list dated 1.1.90, Ext. 1/2

signature of Ram Narain Tiwary on seizure list on 2.1.90, Ext.

1/3 signature of Pheku Mishra on seizure list dated 2.1.90, Ext. 2

signature of Manish Kr. Tiwary (informant) on F.I.R., Ext. 3 post-

mortem report, Ext. 4 complete F.I.R., Ext. 5 seizure list, Ext. 5/1

seizure list, Ext. 6 Inquest report, Ext. 7 certified copy of order of

Ceiling Case No. 506/74-75/114/74-75 dated 4.6.76, Ext. 8

certified copy of B. Petition No. 118/90, Ext. 8/1 certified copy

of petition of B.P. No. 255/90, Ext. 8/2 certified copy of petition

of B.P. No. 334/90, Mark 'X' for identification forwarding report

of empty cartridge, Ext. 9 inquiry report in the handwriting and

signature of Sri Ram Kumar Singh, Ext. 10 request letter in the

handwriting and signature of B.K. Prasad, Ext. 11 certified copy

of order of 107 Cr.P.C., Ext. 12- full contents of page No. 92-93

of D.P.D. Register 1989-90. The defence has produced two

witnesses viz. D.W.1 Bhola Mishra and D.W.2 Ramashish Mahto Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

in support of its case. In support of its case, the defence has also

produced exhibits such as Ext. A Power executed by Manish Kr.

Tiwary, Ext. B signature of Manish Kumar Tiwary on petition

dated 29.5.90 in Hindi and English with date, Ext. C statement of

Navin Kumar recorded by on 02.01.90 at D.M.C.H., Ext. D

forwarding letter No. 553/91 dated 14.5.91, Ext. E order

regarding deputation, Ext. F page 89 and 90 of Ext. G page No.

89 and 90 of Admission & discharge register, Ext. H OPD

register, Ext. H/a page 96 of OPD register, Ext.H/b page 142 of

OPD register dated 16.1.90, Ext. I Discharge certificate.

Thereafter, the statements of the appellants were recorded under

section 313 of the Cr.P.C and after conclusion of the trial, the

learned trial Court convicted the appellants.

6. Heard learned counsel for the appellants and learned

A.P.P. for the State.

7. Learned counsel for the appellants submitted that the

judgment of conviction suffers from several infirmities that have

been overlooked by the learned trial Court and therefore, the

impugned judgment is not sustainable in the eyes of law. It is

contended that the oral dying declaration has not been proved to

the judicial satisfaction of the court, in light of the material

contradiction between the deposition of the prosecution witnesses Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

and the fardbeyan of P.W.8 recorded by A.S.I. of Beta O.P.

(marked as Ext. C). It has been argued that the oral dying

declaration is not credible and does not inspire confidence.

Moreover, the oral dying declaration becomes doubtful in light of

Ext. C document which narrates a different version of the alleged

incident. The learned counsel for the appellants further asserts

that FIR lodged in connection with the present case is an ante

dated document as there has been an unreasonable delay of three

days in dispatching the FIR to the area Magistrate. It has been

further contended that the deposition of the prosecution witnesses

regarding presence of electric bulbs on electric poles, which

serve as source of identification in the present case, is nothing

but improvement in their previous statements made before the

police under section 161 of Cr.P.C. Such improvements are a

result of deliberations, planning and afterthought. Also, there are

material contradictions in the testimony of the prosecution

witnesses regarding the manner of occurrence and the

prosecution has miserably failed to prove its case. Thus, it has

been contended that there is absence of sufficient material to

sustain the conviction of the appellants and therefore, finding of

the learned trial Court is bad in law, wrong on facts, bereft of Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

legal reasoning, devoid of merit and the judgment of conviction

and order of sentence are fit to be set aside.

8. Learned APP for the State, on the other hand, has

submitted that the judgment of conviction and order of sentence

under challenge require no interference as the prosecution has

been able to prove the case beyond all reasonable doubts. It is

asserted that oral dying declaration is a reliable piece of evidence

and that in itself is sufficient to form the sole basis of conviction

of the appellants in the present case. Moreover, minor

inconsistencies in the testimony cannot be a ground to disbelieve

and discard the witnesses. It is, therefore, contended that guilt of

the appellants has been satisfactorily proved from the evidence

adduced during the course of trial and there is no infirmity in the

impugned judgment of conviction and order of sentence of the

learned trial court.

9. After hearing the arguments advanced by the learned

counsels appearing for both the parties and upon thorough

examination of the entire material available on the record, the

following issues arise for consideration in the present appeal:

I) Whether the oral dying declaration is a valid piece of

evidence in the present case?

Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

II) Whether the delay, if any, in dispatching the FIR to

the area Magistrate is fatal to the case of the prosecution?

III) Whether the prosecution has proved the manner of

occurrence beyond reasonable doubts?

IV) Whether the statement of witnesses regarding the

source of identification made firstly during the trial is an

improvement/contradiction to their previous statement

under section 161 Cr.P.C. and is thus, fatal for the case of

the prosecution?

10. With reference to issue No. I, it is apparent from

perusal of the case record that there is sharp contradiction

between the deposition of the P.Ws and the Ext. C i.e. fardbeyan

given by Navin Kumar Tiwary (P.W. 8) recorded by A.S.I. of

Beta O.P. (PW 12). It is evident that the prosecution witnesses

have made specific deposition before the learned trial court that

they saw the deceased in an injured condition at the place of

occurrence and thereupon, Krishna Chandra Tiwari (now

deceased) gave an oral dying declaration stating that Manoj

Kumar Tiwary had shot upon and injured him. However, in sharp

contrast to this, there is no statement about the deceased making

any oral dying declaration in the said Ext. C, even though the

said P.W.8 who gave the fardbeyan, remained with the deceased Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

right after the alleged incident till his death on his way to

D.M.C.H. It has also been brought to the attention of this Court

that the said Ext.-C has been regarded as a genuine document by

the learned trial Court. It is well established legal position that

dying declaration can form the sole basis of conviction.

Nonetheless, establishing the genuineness of the dying

declaration is a condition precedent to placing reliance and

forming it the sole basis of conviction. Also, in cases involving

oral dying declaration, the courts should seek corroboration as a

matter of prudence. In this regard, it is relevant to take note of the

landmark decision of Atbir versus Govt. of NCT of Delhi (2010)

9 SCC 1, wherein Division Bench of the Hon'ble Supreme Court

propounded the guidelines as to the evidentiary value of dying

declaration. It was held that:

"(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.

(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration."

Considering the factual position as discussed above,

this Court is of the view that there exists sufficient doubts

regarding oral dying declaration and the same does not inspire

confidence of this Court and thus, cannot be relied upon to

convict the appellants.

Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

Accordingly, the issue No. I is decided in the negative.

11. With reference to issue No. II, it would be pertinent to

take note that the F.I.R. in connection with the present case was

lodged on 01.01.1990 at about 06:00 p.m., but it was received by

the jurisdictional Magistrate on 05.01.1990 after a lapse of three

days. During the course of trial, attention of P.W.11 i.e. the

investigating officer was drawn with regard to such delay in

dispatching of FIR, but no explanation whatsoever has been

given. Such unexplained delay of three days in dispatching FIR

to the Magistrate is in teeth of section 157 of Code of Criminal

Procedure, 1973 which provides that the F.I.R. must be

dispatched to the area Magistrate 'forthwith'. The objective

behind insisting upon prompt lodging of the FIR is to obtain the

earliest information regarding the incident and to make the

investigation just and fair and to avoid any possible foul play.

With the passage of time and delay in lodging of FIR, the

spontaneity gets lost and there is always a chance of an

exaggerated version of the incident being presented. The

requirements of section 157 Cr.P.C. cannot be considered to be

mere technical formalities. Rather, the procedural requirements

are the procedural safeguards provided to prevent excesses by the Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

police machinery. Non-compliance with such procedural

requirements per se amounts to failure of justice.

In the case of Meharaj Singh and Ors. vs. State of U.P.

and Ors. (1994) 5 SCC 188, the Hon'ble Supreme Court

observed that :

"Delay in lodging the FIR often results in embellishment, which is a creature of an after thought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR, was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate."

In the case of Arjun Marik and Ors. vs. State of Bihar

1994 Supp(2) SCC 372, the following observation was made by

the Hon'ble Apex Court :

Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

"24.The matter does not stop here. There is yet another serious infirmity which further deepens the suspicion and casts cloud on the credibility of the entire prosecution story and which has also been lost sight of by the trial court as well as the High Court and it is with regard to the sending of occurrence report (FIR) to the Magistrate concerned on 22-7- 1985 i.e. on the 3rd day of the occurrence. Section 157 of the Code of Criminal Procedure mandates that if, from information received or otherwise, an officer in charge of police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence upon a police report. Section 157, CrPC thus in other words directs the sending of the report forthwith i.e. without any delay and immediately. Further, Section 159 CrPC envisages that on receiving such report, the Magistrate may direct an investigation or, if he thinks fit, to proceed at once or depute any other Magistrate subordinate to him to proceed to hold a preliminary inquiry into the case in the manner provided in the Code of Criminal Procedure. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest dispatch which intention is implicit with the use of the word "forthwith" occurring in Section 157, which means promptly and without any undue delay. The purpose and object is so obvious which is spelt out from the Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

combined reading of Sections 157 and 159 CrPC. It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation."

In light of the discussions made above, this Court is of the

view that such unreasonable delay as aforesaid casts dark clouds

of suspicion and is certainly fatal to the case of the prosecution..

Accordingly the issue no. II is decided in the affirmative.

12. With reference to issue No. III, the attention of this

court has been drawn towards the inconsistency in the statements

of the prosecution witness. From perusal of the material available

on the record, it is apparent that the P.W.11 i.e. the I.O. had

deposed during trial that the witnesses in their statement under

section 161 Cr.P.C. had stated that the deceased was shot from

behind. However, in sharp contradistinction, the prosecution

witnesses have deposed during course of trial that the miscreants

shot Krishna Chandra Tiwary from the front. Thus, there is

evident inconsistency and contradiction in the testimony of the

witnesses. It is trite principle of criminal jurisprudence that the

testimony of an eye witness must not be dangling. There should Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

be no major inconsistency or contradiction and the testimony

must be free from blemish and devoid of any ambiguity,

uncertainty and loopholes. In criminal law loose, contradictory

and uncorroborated statements cannot be relied upon, much less

than forming the basis of conviction. In light of the material

contradiction as indicated above, this court is of the view that the

prosecution has not been able to prove the manner of occurrence

beyond reasonable doubts.

Accordingly, issue No. III is decided in the negative.

13. With reference to issue No. IV, it is noteworthy that the

alleged incidence took place on 01.01.1990 at 06:00 p.m. There is

also specific deposition about the presence of fog at the place of

occurrence, it being the winter season. It has been stated by the

witnesses during the trial that they identified the appellants and

others at the place of occurrence in light of two electric bulbs

hanging on two separate electric poles. However, the P.W. 11 i.e.

the investigating officer of the case has made no statement about

the presence of the electric bulbs or the electric poles at the place

of occurrence. The P.W. 11 has also made specific deposition that

none of the witnesses had made any statement during the course

of investigation regarding the presence of the bulbs or poles at the

place of occurrence. Such variations in the statements of the Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

witnesses cannot be considered to be mere explanations or

elaboration. Rather, they tantamount to material improvements

and vital contradictions. At this juncture, it would be pertinent to

take note of the case of Sunil Kumar Sambhudayal Gupta and

Ors. Vs State of Maharashtra (2010) 13 SCC 657, wherein the

Hon'ble Supreme Court observed as follows:

"In such a fact-situation, it is not safe to rely on his testimony for the simple reason that he had made a lot of improvements/embellishments while deposing in court and vital contradictions exist with his earlier recorded statement ... ... We find it difficult to sustain the conviction of the appellants on the aforesaid counts based upon the inconsistent, embellished and improved statements of the witnesses, which materially contradict their respective statements recorded earlier."

In the case of State Represented by Inspector of Police,

Tamil Nadu v. Sait @ Krishnakumar (2008) 15 SCC 440, it was

observed that:

"In case, the complainant in the FIR or the witness in his statement under Section 161 Cr.P.C., has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded."

Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

In light of the legal position as discussed above, this Court

is of the view that the version given by the witnesses in the Court

is different in material particulars from that disclosed in their

earlier statements under section 161 Cr.P.C. Such omissions

amount to material improvements/contradictions and they create

serious doubts about the genuineness of the evidence and

truthfulness of witnesses.

Accordingly, issue No. IV is decided in the negative.

14. Every trial is a voyage of discovery in which truth is the

ultimate quest. In the present case, there are severe contradictions

and material improvements in the testimony of the witnesses

which are indicative of afterthought, deliberations and planning.

The Ext. C to this case presents a different version to the

occurrence thereby deepening the suspicion as to the genuineness

of the case of prosecution. Furthermore, the unreasonable,

inordinate and unexplained delay in forwarding the F.I.R. to the

Magistrate clearly indicates that the procedural requirements

have been blown to the winds. As such, this Court is of the view

that there is no sufficient evidence worth its salt to make out a

fool proof case for conviction. The prosecution has failed to pull

the ropes sufficiently tight so as to sustain conviction at the

doorsteps of the appellants. The dark clouds of suspicion looming Patna High Court CR. APP (DB) No.255 of 1995 dt.29-03-2023

large on the story of the prosecution have poured heavily only to

wash away all the dust ridden allegations.

15. In light of the legal position as discussed above and on

the basis of the findings arrived at on the issues hereinbefore

formulated, we are of the considered opinion that the conviction

of the appellants in both the appeals is not sustainable in the eyes

of law and the prosecution has failed to prove its case beyond all

reasonable doubts.

16. Therefore, both the appeals stand allowed and the

judgment of conviction and order of sentence dated 16.08.1995

passed by Sri Mishri Lall Choudhary, 2nd Addl. District and

Sessions Judge, Muzaffarpur in Session Trial No. 267/90/76/94,

arising out of Katra P.S. Case No. 1/90 corresponding to G.R. No.

11/90, Tr. No. 394 of 1994, are set aside. Since the appellants of

both the appeals are on bail, they are discharged from the

liabilities of their bail bonds.

(Sudhir Singh, J)

( Chandra Prakash Singh, J) Pankaj/-

AFR/NAFR                AFR
CAV DATE
Uploading Date          05.04.2023
Transmission Date       05.04.2023