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Judgment
The sole appellant has challenged the judgment of his
conviction dated 28.11.2013 under Section 302 / 34 of the IPC and
Section 27 of the Arms Act recorded by the learned Ad hoc Additional
Sessions Judge III, Nawada in Sessions Trial No. 34/94/77/2008 and
the order of sentence dated 28.11.2013 inflicting punishment to suffer
R.I. for life under Section 302 / 34 of the IPC and R.I. for 03 years with
imposition of fine having default clause under Section 27 of the Arms
Act.
Filtering unnecessary details, the prosecution case set
out in the ''Fardbeyan'' (Ext. 2) lodged by Santu Singh (PW1) on
15.10.1993 at 1.15 P.M. and recorded by the Asstt. Sub Inspector of
Police, Warsaliganj P.S., in brief, is what while he was watching his
paddy field situated at ''Tarauna Bandh'' where his cousin nephew
Pawan Singh (deceased) was also cutting grass on the ridge of the
field, at about 9 AM the appellant along with other co-accused(s)
appeared from the adjoining sugarcane field armed with rifle, double
barrel gun, country made pistol and a bag containing bombs. Co-
accused Arun Singh exhorted his associates to kill Pawan Singh
whereafter co-accused Shankar Singh fired from his rifle which hit the
deceased in his back. The injured even after receiving the injury ran
some distance and fell in the adjoining paddy field, when all the
accused persons including the appellant chased and surrounded him.
Co-accused Bom Singh fired from his gun upon his head from a point
blank range which blew off his skull. Thereafter the appellant also
fired from the rifle on the deceased from a close range. Co-accused
Bochu Singh is also said to have fired from his rifle on the deceased.
As a result of these injuries, the deceased died at the spot
instantaneously .
Recording of the ''Fardbeyan'' ignited the investigation
wherein the police conducted the inquest proceeding over the dead
body on the place of occurrence itself on 15.10.1993 at 1.30 pm in
presence of Shashi Bhushan Singh(PW9) and Chandra Bhushan
Singh. The dead body was dispatched for post mortem. PW-8 who
was then posted at the Sadar Hospital, Nawada held the autopsy on
16.10.1993 at 8.30 AM and furnished the post mortem report (Ext.3).
The statement of the witnesses were recorded. PW-2 took over as the
Investigating Officer of the case and on the basis of the materials
collected by the previous I.O. laid the charge sheet against the
appellant whereon cognizance was taken on 12.07.1994 and the case
was committed to the Court of Sessions on 02.08.1994. The trial of
the case was assigned to the learned Trial Court where charges were
framed and read over to the appellant to which he pleaded not guilty.
The defence case as it appears from the trend of cross-examination of
the prosecution witnesses is that the accused was falsely implicated in
the case due to village rivalry and that the deceased Pawan Kumar
Singh was having criminal antecedents and obviously he had several
enemies. He was killed by his enemy at a different place and in
different manner. His implication is false.
In order to bring home the guilt of the appellant, the
prosecution examined 11 witnesses. After conclusion of the
prosecution witnesses, the statement of the appellant was recorded
under Section 313 of the Code of Criminal Procedure wherein he
denied to have gone to the place of occurrence armed with a rifle. He
again pleaded his false implication in the case.
PW-1 Sahdeo Singh has taken the dock to support the prosecution case as an eye-witness. The prosecution has presented
PW-1 Sahdeo Singh, PW3 Ramsagar Singh, PW4 Brijkishor Singh,
PW5 Sachidanand Singh, PW6 Arvind Singh and PW7 Santu Singh
(informant) as eye witnesses. PW-2 had taken over the investigation
from another Investigating Officer (for short ''the I.O.'') and laid the
charge sheet against the appellant. PW8 Dr. Suniti Kumar was then
posted at Sadar Hospital, Nawada. On 16.10.1993 at 8.30 A.M., he
held post mortem on the cadaver of the deceased duly identified by
the police constable Ambika Singh and chowkidar Chaman Paswan.
The post mortem report furnished by the Autopsy Surgeon is Ext.3.
PW-9 Shashi Bhusan Singh is a witness to the inquest report and
proved his signature Ext. ''. In his examination-in-chief, he has also
stated about the place of occurrence where the dead body was lying
and also presence of blood near the dead body. PW10 Mosadeo
Singh is the A.S.I. and Malkhana incharge who produced empty
cartridge (material Ext I), live cartridge .315 bore (material Ext. II)
and blood stained soil collected from the place of occurrence (material
Ext. III). PW-11 Sanjay Kumar was not relied upon by the appellant
and was declared hostile.
On an appraisal of the evidence of the prosecution
adduced at the trial, the Trial Court held him guilty of the
charge/offence and sentenced him in the manner noted above.
Heard Mr. A.K. Thakur for the appellant and Mr.
S.N.Prasad APP for the State.
Before we deal with the rival contention(s), it is
profitable to first examine the evidence of the Doctor. PW-8 held the
autopsy and proved the post mortem report (Ext. 3). The doctor found
the following ante mortem injuries on the dead body:-
"(I) Lacerate wound over occipital region back in mid line of size 1 1/2"x 1" x skull cavity deep, margin was inverted and blackened (it is wound of entry) (II) Lacerated wound over right side of skull of size 8"x6"x skull cavity deep. Margin was inverted. (Wound of exit) Both injury no. (1) & (II) were in a back and brain matters coming out through both injuries. Injury No. (iii) lacerated wound of size 1/2" x 1 1/2" x muscle deep over right elbow joint posterior aspect. Margin inverted and blackened ( wound of entry) Injury no. (iv) lacerated wound over medial aspect of arm of three inches above elbow of size 1" x 1/2" x muscle deep. Margin inverted ( wound of exit.) both injuries no (iii) and (iv) found in a back. Injury no (v) lacerated wound over right side chest five inches below auxiliary line and three inches from breast of size 1" x 3/4" x chest cavity deep.. Margin was inverted and blackened (wound of entry). Injury no. (vi) lacerated wound of size 1/3" x 1/3" x muscle deep two inches from mid line posteriorly right side back at the level of first lumber vertebra. Margin was inverted. (wound of exit). On dissection right side chest cavity was full of blood. Right lung found lacerated. Both injuries no. (v) and (vi) were found in a back. Heart was found empty both side. Stomach was empty. All viscera pale. Bladder was empty. Time elapsed since death was within 12 to 36 hours approximately. Cause of death was above mentioned injuries. Nature of weapon was firearm. Injury no. (1) and (11) may be caused by double barrel gun. Injury no. (III) (IV), (V) and (VI) may be caused by rifle."
It has not been disputed before us that the death of the
deceased was homicidal in nature which resulted due to the three fire
arm injuries inflicted on him.
On behalf of the appellant Mr. Thakur has contended,
inter alia, this is a case where the manner of occurrence, the place of
occurrence and the time of occurrence have not firmly been
established by the prosecution. The evidence, brought on these points,
are not corroborated from the medical evidence of the doctor (PW8)
and his findings in the post mortem report (Ext. 3). He further submits
that, surprisingly, the inquest report (Ext.1/2) and the post mortem
report (Ext.3) details the registration of the case number and the date.
The occurrence, according to the prosecution, was committed at 9
A.M. in the morning. The inquest report does not set out the date and
time of the inquest proceeding. It only details the case Number which
was later registered on the ''fardbeyan'' of the informant. The post
mortem report, similarly set out the case Number which was
registered at Warsaliganj police station on 15.10.1993 at 18:00 hours.
He has placed before us the evidence of PWs 1, 3, 4, 5, 6 and 7 and
drew the attention of the Court to the relevant paragraphs of their
deposition(s) where attention was drawn to their previous
statement(s) made under Section 161 of the Cr. P.C.. He submits that
non-examination of the I.O. has caused serious prejudice to the
defence. To support the contention he has relied on the case of
Lahu Kamlakar Patil & Anr. vs. State of Maharashtra [2013(6)
SCC 417]. It has further been submitted that almost all the eye
witnesses have consistently spoken about the first assault made on the
deceased while he was grazing grass on the ridge of the field which
hit him in his back whereafter he ran to some distance and fell down
whereafter the accused(s) including the appellant had assaulted. PW1
has stated about 06 shots of fire hitting the deceased whereas PW3
has stated about 04 fire arm injuries caused to the deceased at the
hands of the appellant and other co-accuseds. The post mortem report
contradicts their evidence. The time of occurrence spoken by these
witnesses also do not get support from the evidence of the Doctor.
Lastly, he has submitted, referring to Ext. A, which is certified copy
of the judgment rendered subsequently by the Trial Court in respect of
other co-accused(s) that on appreciation of evidence of present set of
witnesses produced therein, the Court did not find them cogent and
reliable and they were acquitted.
Learned APP, conversely, supported the prosecution
case. He submits that non-examination of the I.O. will not invariably
result in causing serious prejudice to the defence. If the ocular
evidence is cogent and reliable the Court can always rely on their
evidence. It is further submitted that PWs 1, 3, 4, 5, 6 and 7, in their
respective examination(s)-in-chief, have fully supported the
prosecution case and the complicity of the appellant in the crime. The
prosecution has been able to prove the genesis of the occurrence, the
place of occurrence and the manner of occurrence which led to the
conclusion arrived by the Trial Court.
On close perusal of the evidence on record, it is more
than explicit that the consistent case of the prosecution is that the
deceased was at the ridge of the field engaged in cutting the grass
when the appellant and other accused persons emerged from the
nearby sugarcane field and at the orders of one of the co-accused he
was shot with a rifle by one of the co accused(s) which hit him in his
back whereafter he run some distance before he fell down. We also
find from their evidence that the deceased was having criminal
antecedents. PWs- 1 and 7 have specifically spoken about it.
Suggestion to other witness was given by the defence. What distinctly
appear from their evidence is that on the ridge of the field the first
assault was made on the deceased and in the nearby field he was
assaulted by the accused including the appellant when he fell in the
field on receiving the first assault at the ridge of the field. One of the
co-accused(s) assaulted him in his head whereafter the appellant is
alleged to have assaulted with fire arm on his chest. Another co-
accused also assaulted him on his arm. It has been urged before us by
the defence counsel that except PW-7 no one had stated about the
assault by the appellant to the deceased by fire arm in their respective
C.D. statement(s). Our attention has been drawn to the relevant part of
their evidence where the defence suggested to this effect.
Our attention is also drawn to the relevant
suggestion(s) given to all prosecution witnesses with respect to the
first place of occurrence the sickle with which the deceased had gone
to the field and the ridge. It was stated by some of them that they
were shown to the I.O. Referring to their evidence on this aspect, it
has been argued that the non-examination of the I.O. has caused
serious prejudice to the defence as from the suggestion given to the
witnesses it would appear that it was not so stated or shown by them
in course of investigation to the I.O..
Adverting to the findings of the doctor in the post
mortem report it is found 03 wounds of entry caused by fire arm
were found on the cadaver. Injury nos. (I) and (II) were
communicating to each other. Injury nos. (III) and (IV) are again the
wounds of entry and exit. The doctor found them in one impact. In
other words, they were communicating to each other. Injury no. (V)
found over right side of chest was communicating with injury no. (VI)
which was wound of exit. The doctor found rigor mortis present only
over lower limbs and sign of decomposition had set in. In para 12 of
the deposition of the doctor, it is stated that the deceased might have
died before 02 to 03 AM on 14.10.1993 as the decomposition had set
in. The another important finding of the doctor is that the stomach
and the urinary bladder of the deceased were found empty .
According to the case of the prosecution, the occurrence had taken
place at 9 o''clock in the morning at the field. What is clearly evident
from the evidence of the eye witnesses and the evidence of the
Doctor is that the time when the deceased was done to death sharply
differs. It has been contended, and rightly so, that the doctor found the
process of decomposition set in which generally happens if the body
is kept more than 30 or 32 hours. To add to it, the time of occurrence
is 9 AM. The deceased was engaged in agricultural operation(s). He
was cutting grass. It is a matter of common knowledge that people in
the village go for work in the field in the morning only after taking
breakfast. The objective finding of the doctor on the emptiness of the
stomach give credence to the case of the defence that the deceased
was done to death well before the time as suggested by the
prosecution. We also find from the trend of cross- examination of
the witnesses that a suggestion was given to almost all the prosecution
witnesses that the deceased having a criminal background was done
to death at a different place and on a different time. If the evidence of
the doctor is given credence then the defence has a case to stand on
this point.
In order to ascertain the place of occurrence as spelt
out by the prosecution we perused the inquest report keeping in view
the evidence of PW 7 ( informant) and many of the witnesses that the
deceased was lying after having received the assault was in a paddy
field full of mud/water. It is not evident from the inquest report
(Ext.1/2) that the deceased was found clad in cloth smeared with
water or mud. The doctor has also not stated so. That apart, the
contention of the defence is that an information was received earlier in
the point of time regarding the death whereon a case was registered
and, therefore, the I.O. inserted the case number in the inquest report
prepared by him at the spot and consequently the doctor in his post
mortem report (Ext. 3). The evidence on this point is not very
specific. However, at least a doubt is created on the veracity of the
prosecution case.
In Lahu Kamlakar Patil (supra) the Hon''ble Apex
Court having examined the evidence on record, in para 18 held as
under:-
Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the F.I.R. but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating officer, but for some reason, the investigating officer has not been examined by the prosecution. It is an accepted principle that non-examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar, this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar, it has been opined that when no material contradictions have been brought out, then non-examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded Under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar, Rattanlal v. State of J&K and Ravishwar Manjhi v. State of Jharkhand, has explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that the present case is one where the investigating officer should have been examined and his non-examination creates a lacuna in the case of the prosecution.
What is concluded on the point is that if veracity of
the several statements of the witness remained untested and that
where no independent objective findings regarding the occurrence
supporting the prosecution case, the non- examination of the I.O.
would be considered as severely prejudicial to the defence. It has
been argued before us by the defence that in Court almost all
witnesses have stated about the assault on the back received by the
deceased which has been contradicted by the objective finding of the
doctor. Many of the witnesses had not stated about their presence at
the place of occurrence and witnessing each and every detail of the
events taking place there before the I.O. They had narrated a
different story of having seen the appellant escaping from the place of
occurrence after the assault. For this reasons suggestions to all
witnesses were given by the defence. In such circumstances, the
withholding of the I.O. for no plausible reason has taken away a
valuable right of the defence to place the material contradiction(s) in
the evidence of the PWs. Only PW 7 who is author of the ''fardbeyan''
had stated about fire by the appellant on the deceased. This witness,
in Court, has also perceivably improved his version and stated that
the firing made by the appellant had hit the chest of the deceased.
One of the contentions of the appellant is that there
was no justification for these PWs who belonged to one family to be
present in the particular ''Bahiyar'' as they had no land. PW-7 has
stated that he had gone to the field to watch his paddy crop when
confronted he said that he would produce document that he had the
land in the said ''Bahiyar'' which was not produced. In our view, this
cannot be treated as a material defect in the prosecution case. PW-1
has stated about going to the field to watch paddy crop. He has,
however, not stated that the paddy crop was grown on his land. We do
not find much force in the contention.
The distinct finding of the doctor not finding a wound
of entry of the bullet in the back of the deceased makes the
prosecution case as projected by the witnesses more vulnerable. It is
the positive case that he was struck on his back by a rifle shot while
standing on the ridge in the field whereafter he run to some distance.
The post mortem report overrules the said injury. A serious doubt is
created on the prosecution case.
Ext. A is the judgment of acquittal of other co-
accused(s) of the present case rendered by the learned Trial Court in a
separate trial. The present set of prosecution witness had deposed in
the said case. The Trial Court did not find their evidence trustworthy
and acquitted the co accused(s). Although the Court is not required to
take into account the reasonings of the Trial Court for acquitting the
co-accused(s) in different trial, but, in the facts of the case, the same
gives credence to our view in the present case for not placing reliance
on the relevant depositions of PWs for the reasons noted above. It
may also be stated that the hostility between the parties is reflected
from the record. The possibility of the false implication of the
appellant cannot be completely ruled out. The medical evidence
sharply contradicts the prosecution case both on the manner of
occurrence as well as the time of occurrence. We do not find it safe to
convict the appellant. He is entitled to be given the benefit of doubt.
For the reasons aforesaid, the appeal is allowed. The
impugned judgment and order of conviction recorded against the
appellant are set aside. The appellant shall be set at liberty forthwith if
not required in any other case.