Ashok Singh vs State Of Bihar

(Per: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA)

The present appeal has been preferred against the judgment of conviction and the order of sentence, dated 23.07.1997, passed by the learned Additional Sessions Judge–X, Patna, in Sessions Trial No. 910 of 1992, arising out of Phulwarisharif Police Station Case No. 05 of 1990, whereby the appellant was convicted for the offences punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. Consequent upon his conviction, the appellant was sentenced to undergo rigorous imprisonment for life for the charge under Section 302 of the Indian Penal Code and rigorous imprisonment for one year for the charge under Section 27 of the Arms Act, along with a fine of ₹5,000/-, and in default of payment of fine, to undergo rigorous imprisonment for six months.

The prosecution case, as unfolded in the fardbayan of the informant, Arun Kumar, recorded on 07.01.1990 at about 9:15 PM, is that in the evening, a film was being exhibited on a television set at the village library and the informant, his elder brother Mahendra Singh (the deceased), Lalan Prasad Singh, and co-villagers, Ravi Ranjan Singh @ Dipu (PW 2), Naubind Singh (PW 3), Rambriksh Singh, Rajeshwar Singh, Budhdev Singh, and several other villagers had assembled there to watch the film. During the interval, at about 7:30 PM, the informant returned home for dinner, while the deceased, Mahendra Singh, accompanied by Ravi Ranjan Singh @ Deepu (PW 2) and Naubind Singh (PW 3), proceeded towards the canal to attend the call of nature. The informant alleged that after having dinner, he went to inspect the paddy crop in his khalihan, situated near the Middle School, and while he was returning towards the village library at about 8 PM, he heard the sound of a gunshot coming from the northern side of the school. Immediately thereafter, he heard another gunshot. On hearing the gunshots, the informant rushed towards the school and when he reached the road situated on the southern side of the school, he saw Ashok Singh (the appellant) and Pramod Singh carrying a country-made pistols in their hands and were hastily going towards the south. After the said persons had left the place, the informant proceeded towards the northern corner of the school, where he found his elder brother, Mahendra Singh, lying dead with firearm injuries.

At the place of occurrence, Naubind Singh (PW 3) and Ravi Ranjan Singh @ Dipu (PW 2) were raising alarm and they informed the informant that Ashok Singh and Pramod Singh had just shot Mahendra Singh and fled towards the south. They further stated that while Mahendra Singh was returning from the canal and had reached the corner of the school, Ashok Singh suddenly intercepted him, caught hold of his collar, and, placing a country-made pistol on his neck, fired at him. Thereafter, Pramod Singh took out a country-made pistol and, while threatening Naubind Singh and Ravi Ranjan Singh, fired at the abdomen of Mahendra Singh. Thereafter, both the accused fled towards the south. The informant’s brother sustained injuries on the left side of the neck, the right side of the rib cage, and the abdomen.

It has further been alleged that the reason behind the occurrence was that the widowed sister-in-law of Ravi Ranjan Singh, Manju Devi, had earlier instituted a criminal case against the deceased Mahendra Singh and two other persons and Ashok Singh had taken the side of Manju Devi in the said case and had been repeatedly threatening the deceased.

On the basis of the fardbayan of the informant, Phulwarisharif Police Station Case No. 05 of 1990, dated 07.01.1990, was registered against the appellant along with one co-accused Pramod Singh (who died during the pendency of the sessions case) for the offences punishable under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act.

Upon completion of investigation, the police submitted Charge Sheet/Final Form No. 56, dated 19.07.1990, against Ravi Ranjan Singh @ Dipu (PW 2) and Naubind Singh (PW 3) for the offences punishable under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act. The appellant was exonerated and was not sent for trial, as the allegation against him was found to be untrue.

Upon submission of the police report, the learned Chief Judicial Magistrate took cognizance, vide order dated 21.07.1990, against Ravi Ranjan Singh @ Deepu (PW 2) and Nauvind Singh (PW 3). Aggrieved by the said police report, the informant filed a protest -cum- complaint petition. The informant also challenged the order, dated 21.07.1990, before this Court by filing Criminal Miscellaneous No. 10391 of 1990. This Court, vide order, dated 03.12.1990, set aside the order of cognizance, dated 21.07.1990, and remitted the matter to the learned Chief Judicial Magistrate for passing a fresh order in accordance with law after hearing the informant. Thereafter learned Chief Judicial Magistrate, differing from the police report, took cognizance of the offences against the appellant on 23.03.1992. The case was committed to the Court of Sessions for trial on 07.11.1992 for trial and disposal.

On 04.01.1993, the learned Additional Sessions Judge, Patna framed charges against the appellant under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. The charges were read over and explained to the appellant in Hindi, to which he pleaded not guilty and claimed to be tried.

The prosecution, in order to substantiate its case, has examined five witnesses and exhibited some documents on its behalf. List of prosecution witnesses and exhibits are being mentioned herein under:

5 Dr. Arvind Kumar Doctor, who conducted Singh the post-mortem.

After closure of the prosecution evidence, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973, on 22.01.1996. The appellant denied that he had committed any offence and stated that he had falsely been implicated.

The defence, in support of its case, has also adduced four witnesses on its behalf and exhibited some documents. List of defence witnesses and exhibits are being mentioned herein under:

Mr. Ajay Kumar Thakur, learned Counsel for the appellant has submitted that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the testimonies of the prosecution witnesses suffered from material contradictions and inconsistencies and the learned Trial Court failed to properly appreciate the evidence available on record and recorded the conviction, merely on the presumption of guilt, without considering the material circumstances emerging from the prosecution evidence itself.

Learned Counsel further submitted that upon completion of investigation, it had emerged that Ravi Ranjan Singh (PW 2) and Nabind Singh (PW 3), were the ones who had committed the offence and, accordingly, the police submitted charge-sheet against them. The present appellant was found innocent during investigation and as such, he was exonerated and not sent up for trial. It is contended that once a witness is found to have participated in the occurrence and is chargesheeted as accused by the investigating agency, his testimony cannot be equated with that of an ordinary prosecution witness. Such evidence is required to be appreciated with highest caution.

Learned Counsel next submits that there are fifteen charge-sheet witnesses in support of the prosecution case. However, out of those fifteen witnesses, the prosecution examined only three witnesses, the informant (Arun Kumar), the Investigating Officer (PW 4) and the doctor (PW 5), who had conducted post mortem on the dead body of the deceased. The remaining material/charge sheet witnesses were withheld and instead of examining the material charge-sheet witnesses, the prosecution examined Ravi Ranjan Singh as PW 2 and Naubind Singh (also mentioned as Navin Singh/Naubind Kumar/Nobind Singh/Nobin Singh/Naubin)) as PW 3, who were themselves chargesheeted accused and were not cited as prosecution witnesses in the charge sheet.

It is also submitted that the specific case of the prosecution case is that the deceased sustained a gunshot injury in the stomach. However, the medical evidence does not disclose any bullet entry wound in the stomach. This material contradiction strikes at the very root of the prosecution story. Further, according to the prosecution, the deceased had gone towards the canal to meet the call of nature and was returning therefrom when the occurrence took place. The post-mortem report, however, records the presence of semi-digested food in the stomach. The medical findings are inconsistent with the prosecution narrative regarding the circumstances and timing of the occurrence.

Lastly learned counsel submits that no motive had been assigned against the appellant, who is the relative of the informant, to commit the alleged offence.

In view of the aforesaid facts and circumstances, it is submitted that the impugned judgment of conviction is fit to be set aside as the prosecution has miserably failed to prove its case beyond reasonable doubts, on this basis, the appellant is entitled to benefit of doubt.

In support of his submissions, learned Counsel for the appellant has placed reliance on the decisions of Supreme Court, in the cases of Munshi Prasad v. State of Bihar, reported in (2002) 1 SCC 351, State of Haryana v. Shakunthla, reported in (2012) 5 SCC 171, Adambhai v. State of Gujarat, reported in (2014) 7 SCC 716, Bir Singh v. State of UP, reported in (1977) 4 SCC 420, Jaikam Khan v. State of UP, reported in (2021) 13 SCC 716, State of Uttarakhand v. Jarnail Singh, reported in (2018) 1 SCC 128, Jogendra Nahak v. State of Orissa, reported in (2000) 1 SCC 272, Raja Ram v. State of Rajasthan, reported in (2005) 5 SCC 272, Mukhtar Ahmad v. State, reported in (2005) 5 SCC 258, and Javed Masud v. State of Rajasthan (AIR 2010 SC 979).

Per contra, learned Additional Public Prosecutor submitted that the judgment of conviction and order of sentence under challenge does not require any interference of this Court inasmuch as the prosecution had been able to prove the case beyond the shadow of all reasonable doubts. He further submitted that the prosecution witnesses have remained consistent in the testimony during the course of trial and there does not remain any lacunae in the case of the prosecution. The minor inconsistencies in the testimony of the witnesses cannot be a ground to reject their evidence as a whole, which may have been caused due to lapse of time.

Learned Additional public Prosecutor further submitted that the testimony of the witnesses stands corroborated by material particulars by the prosecution evidence and the offence alleged against the appellant appears to be serious in nature.

Learned Additional Public Prosecutor finally argued that guilt of the appellant has been satisfactorily proved by the evidence adduced during the course of trial and there is no infirmity in the judgment of conviction of the learned trial Court.

I have heard learned Counsel for the parties concerned and have perused the materials available on record.

While considering the present appeal, when I come to the evidence of PW 5 (Dr. Arvind Kumar Singh), who had, admittedly, conducted post mortem examination on the dead body of Mahendra Singh on 08.01.1990, at 10:30 AM. According to this witness’s evidence, he examined the dead body of the deceased, Mahendra Singh and found following ante mortem injuries:

On dissection, this witness (PW 5) found the abdominal cavity full of blood and clots, the projectile of wound no. (2) pierced through the 6^th inter coastal space, spleen, intestine and mesatry and exited through the injury no. (3), thoracic cavity contained 500 cc of blood and clots, and the projectile of injury No. 1 pierced through fracturing lower portion of mid clavicle, second inter coastal left space, left lung and a metallic object was recovered near the lower portion of scapula, which was taken out, kept in a glass vial and handed over to Constable No. C/2778, Parasnath Singh, with instruction to hand it over to the Investigating Officer immediately. All the viscera were found pale. The stomach contained semi-digested rice.

To the Court question as to whether there would be blackening or charring around the wound if shots are fired from close range from fire arm commonly used, this witness (PW 5) had answered “yes”.

This witness (PW 5) had also deposed that injury no. (1) had no sign of blackening or charring. He further deposed that there is opinion of Modi and Taylor that there would be blackening and charring around the wound of shot if fired from four feet range. He further submits that after two or three hours, stomach may contain semi digested food.

The doctor (PW 5) has opined that the cause of death was thoracic and abdominal injuries, caused by fire arm except injury no. 4, which was caused by hard and blunt substance.

Nothing, in particular, was elicited by the defence to show that the findings of the doctor and/or his opinion, with regard to the cause of death was incorrect. This apart, I, too, do not find anything inherently incorrect or improbable in the evidence given by PW 5.

It can, therefore, be safely included, and I do conclude, that Mahendra Singh died as a result of having sustained the injury as has been mentioned by the doctor (PW 5) and thoracic and abdominal injuries, which resulted from the ante mortem injuries aforementioned, became the cause of his death and that the injury, which had been inflicted on, and sustained by, the said deceased, was sufficient to cause death of a person in the ordinary course of nature, from the shots fired from fire arm, admittedly, the weapon of offence being a fire arm.

What also clearly follows from the discussion of the medical evidence on record is that the death of the said deceased was homicidal in nature. Whether the appellant, along with others were the ones, who had caused the death, of Mahendra Singh, therefore, falls for consideration.

Now, coming to the testimonies of other witnesses. PW 1, Arun Kumar, is the brother of the informant and also the informant of this case. This witness, in the examination-in-chief, has deposed that he had gone to Khalihan to inspect paddy and when he was returning from the Khalihan, he heard the sound of a gunshot from the southern side of the school and shortly thereafter, he heard the sound of another gunshot and witnessed that Ashok Singh and Pramod Singh @ Chotan, having pistols in their hands, were going towards south from northern side of the school towards the south while uttering something. This witness went towards the northern side of the school, where he found his elder brother, Mahendra Singh, lying dead in a pool of blood. He deposed that Dipu Singh @ Ravi Ranjan Singh and Navin Singh informed him that Ashok Singh and Pramod Singh had killed and fled away. They further told him that while Mahendra Singh, Navin Singh and Ravi Ranjan Singh were returning after easing themselves near the canal, Ashok Singh caught hold the collar of Mahendra Singh and fired at his left temple. Thereafter, Pramod Singh threatened to shoot Navin Singh and Ravi Ranjan Singh also and then fired at the abdomen of Mahendra Singh.

This witness (PW 1) had disclosed the motive behind the occurrence that the sister-in-law of Dipu Singh, namely Manju Devi, had instituted a case against Mahendra Singh, Yogi @ Yogendra and others, and Ashok Singh and Pramod Singh had earlier made several attempts to kill them.

This witness (PW 1) has further deposed that thereafter villagers assembled at the place of occurrence and he went to the police station where his fardbayan was recorded by the Police, who read over and explained the same to him, after which he put his signature thereon. He further deposed that he had filed a protest petition against the Investigating Officer through Advocate Kripanath Yadav.

This witness (PW 1) has further deposed that the Investigating Officer visited the place of occurrence and prepared the inquest report of the deceased. He further deposed that the Investigating Officer seized the blood-stained clothes of the deceased and also collected blood-stained soil from the place of occurrence and prepared seizure lists in respect thereof also.

This witness (PW 1) has deposed that prior to the occurrence, a cinema show was being screened in the village library, which he, along with his brother Lallan Prasad Singh, Navin Singh, Bajrangi Singh, Rambriksh Singh, Rameshwar Prasad Singh and others, were watching. During the interval, he went to take dinner, while Mahendra Singh, Ravi Ranjan Singh and Navin Singh proceeded towards the canal for easing themselves. After taking dinner, he went to the Khalihan to look after the paddy and while returning therefrom, he witnessed the occurrence as stated above.

In his cross-examination, PW 1 has deposed that the first wife of the deceased committed suicide after coming under a train and again deposed that it was an accident. He denied that due to the family dispute, the first wife of the deceased committed suicide. After the death of his first wife, the deceased had again married in Dhannuchak village. He further denied that due to the family dispute, the mess of this witness and that of the deceased were separated. They were cultivating together today also as it was done in the past. He further denied that the first wife of the deceased committed suicide six months before his death.

This witness (PW 1) has deposed that on 07.01.1990, it was cold, but not chilly cold. He did not recall whether his brother was wearing vest, full sleeves shirt, full sleeves sweater and woolen shawl. This witness was wrapped in shawl. Ashok, Pramod were wearing sweater and not wrapped in shawls.

This witness (PW 1) has further deposed that he did not recall in which hand the accused, Ashok Singh and Pramod Singh, were holding pistols. They were waving the pistols in their hands and uttering something, but they did not try to conceal the pistols inside their shirts. This witness had not seen any person other than these two accused persons. This witness denied the suggestion that he had stated before the Deputy Superintendent of Police that he had seen five persons, out of whom he identified only two. This witness further denied that he had not stated before the Deputy Superintendent of Police that he had seen the occurrence from his Khalihan by the side of straw situated towards the side of the village library.

This witness had further deposed that on the date of occurrence, he had spoken with Naubin and Dipu for about 1-1½ minutes at the place of occurrence. None of the three had suggested that they should proceed to the police station. He further deposed that Naubind brought a motorcycle and he had gone to bring the motorcycle on foot and till the motorcycle came, the informant and Dipu remained present at the place of occurrence and during that period, there was no conversation between them. The house of Naubind was situated about 200 to 250 metres from the place of occurrence.

This witness (PW 1) had further deposed that Ashok Singh and Pramod Singh had earlier attempted to kill, which fact he had not mentioned in the fardbayan. This witness (PW 1) had further deposed that these two accused persons had attempted to kill Mahendra earlier, and for that he had not instituted any case, only he had entered station diary entry ion the Police Station. This witness had further deposed that he did not remember whether he had mentioned about the attempt made to kill Mahendra Singh either before the Deputy Superintendent of Police or in his statement recorded under Section 164 of the Code of Criminal Procedure, 1973 or in the protest petition.

This witness (PW 1) had denied the suggestion that he had falsely deposed regarding the time of the occurrence, names of the assailants and the motive behind the occurrence. He further denied that Dipu and Navin were his old friends and all three of them had conspired together to falsely implicate the accused persons in the false case.

PW 2, Ravi Ranjan Singh, in his examination-in-chief, had deposed at that time of occurrence, he was present at the library where a cinema show was being exhibited. He, Mahendra and Naubind had gone together to attend the call of nature and while returning and reached near the school, Ashok Singh and his brother Pramod, were present there armed with pistols. This witness had deposed that Ashok Singh caught hold the collar of Mahendra and fired the bullet, which hit him on the left side of neck. In the meantime, Pramod also fired in the abdomen of Mahendra, upon which, Mahendra fell down. The accused persons fled away towards south. When the informant came, this witness narrated the story. This witness had further disclosed the motive behind the occurrence that accused Ashok Singh had illicit relationship with the sister-in-law (Bhabhi) of this witness, which was opposed by Mahendra. The statement of this witness was recorded before the Daroga at the place of occurrence.

In the cross-examination, this witness has deposed that his name was Dipu also and he denied the suggestion that he had been a childhood friend of Arun and Naubind. This witness had further deposed that he and Naubind had been apprehended together with a rifle and cartridges and that case was still pending. He further deposed that a case regarding possession of a rifle and cartridges was pending against Naubind and himself, but the licensed rifle and cartridges belonged to Naubind and his maternal cousin.

This witness (PW 2) had deposed that he, along with Naubind, Rajeshwar, Arun, Budhadev Singh etc. were watching cinema. They had assembled at the library at about 6 PM for watching the cinema. This witness did not remember the name of the film, he only deposed that it was a government cinema show which everyone saw.

This witness (PW 2) had deposed that that the police arrived at the place of occurrence at about 10:30 PM. The cinema was being shown on a portable television set, but the said television was not shown to the police. He further deposed that out of the three persons, Mahendra had told to go for attending the call of nature and they had gone for easing themselves after the interval at 07:30 PM from the library itself. This witness further denied that after the interval, Mahendra had gone home for dinner. He deposed that the place used for easing was about 400 yards north to the library. The house of Mahendra was situated approximately 200 yards to the south-west of the library. He stated that prior to the occurrence, he had seen Mahendra moving freely in the village. He further deposed that when he first noticed the accused persons before the occurrence, both of them were standing to the north of him and were at a distance of one or two paces from them. He deposed that it was the first time when he had seen them at the time of the occurrence and he had not heard any sound or movement before that. He further stated that they were moving towards the south; while Ashok and Pramod were moving towards north, carrying pistols in their right hands. He stated that Ashok had caught hold the collar of Mahendra by his back and fired immediately upon catching him. Mahendra did not fall down upon receiving that shot; rather, he fell only after Pramod fired at him.

This witness (PW 2) had further deposed that the bullet had struck the left side of Mahendra's neck and that the shot had been fired from a very close range, almost touching him. He further stated that Pramod fired at Mahendra in his abdomen from the front, face to face.

This witness (PW 2) had further deposed that after 5½-6 months of the occurrence, the police arrested him and Noubind in connection with the murder of Mahendra. He further deposed that the police severely assaulted both of them, saying that Ashok used to act as an informer and agent for the police. He stated that the police did not record any statement of either of them. He further deposed that in his subsequent statement, he had not stated that he was watching television at home and came to know about the occurrence only after hearing hulla. He further deposed that he had not stated before the police that his sister-in-law had illicit relations with Ashok and Mahendra was opposing such relationship. He deposed that no case had been instituted against him in connection with the murder of his brother Lal Babu, who had been murdered, but no case had arisen out of that incident by Rameshwar Paswan and he did not know Rameshwar Paswan. He deposed that partition of land between him and his brother took place only after his death, about two years earlier. He deposed that he did not know whether stolen railway fertilizer had been recovered from the house of Naubind and Ashok was a witness to the search and seizure in connection with such recovery. He denied the suggestion that he had deposed falsely in the case.

To the Court question, this witness (PW 2) has replied that the library and the school were situated in two different places having separate structures. He further stated that he had passed the matriculation examination in the year 1981-82 and that Naubind had passed one year after him. He further stated Naubind had passed the matriculation examination one year prior to him. He further stated that the television installed in the library had been purchased through contributions made by the villagers and the villagers used to watch television programmes and cinema together on the said television set.

PW 3, Naubind Kumar Singh, in his examination-in-chief, had deposed that the occurrence took place on 07.01.1990 at about 8 PM. He was watching a cinema on television along with twenty persons. He further deposed that when the interval took place, all the persons got up and Mahendra Singh asked to accompany him for easing themselves, whereupon he, Mahendra Singh and Dipu Singh went towards the canal for attending the call of nature and while returning therefrom, he saw Ashok Singh and Pramod Singh coming from the southern side and caught hold of the collar of Mahendra Singh when they reached near the well situated at the northern corner of the school. He further deposed that Ashok Singh fired at him with a pistol causing a gunshot injury on the left side of his neck and Pramod Singh fired another shot at him with a pistol and thereafter both of them fled away towards south. He further deposed that immediately thereafter Arun Singh came to the place of occurrence and he narrated to him the entire occurrence witnessed by him. This witness went to the Police Station along with Arun Singh on his motorcycle, where Darogaji recorded the fardbayan of Arun Singh and thereafter Darogaji came at the place of occurrence and prepared inquest report, upon which he and Rambriksh Singh put their signatures. This witness had disclosed the motive behind the occurrence that Ashok Singh had developed illicit relations with the sister-in-law of Mahendra Singh and Mahendra Singh used to oppose the same. He further deposed that one or two days prior to the occurrence, Ashok Singh had gone to the house of Mahendra Singh and abused him when he was not present in the house.

In his cross-examination, this witness (PW 3) had deposed that a criminal case was pending against him in the Court of Railway Magistrate, Patna Junction, in which his brother, Parmanand Singh, was also an accused. He further deposed that the said railway case related to the recovery of four bags of fertilizer from his house which was alleged to be railway property. He deposed that he did not know that Ashok Singh was a witness to the search and seizure of that case. He admitted that Ashok Singh had deposed in the said railway case but stated that his evidence was not necessary since no summons was issued. He further deposed that he had not made any statement before the police that Ashok Singh had falsely implicated him in the railway case.

This witness (PW 3) had deposed that the police had instituted a case against him and Dipu for allegedly keeping an illegal gun and rifle, but the said rifle was in fact a licensed rifle belonging of his brother and the police had taken away the said rifle from his house. One Surendra had also lodged a case for the offences under Section 307 of the Indian Penal Code.

This witness (PW 3) has further deposed that Arun had made his statement before the police, which was not read over to him. He deposed that Arun was giving his statement inside the Inspector's room while he was standing outside the room and had heard what Arun was saying.

This witness (PW 3) had further deposed that the police first inspected the dead body at the place of occurrence and Dipu was also present there. Thereafter, both he and Dipu gave their statements at the place of occurrence.

This witness (PW 3) had further deposed that Mahendra Singh was watching television from about 6 PM and had arrived there at 6 PM. He remained with the deceased approximately ten minutes after the cinema programme had commenced till about half an hour before the murder took place.

This witness (PW 3) had further deposed that the Deputy Superintendent of Police had not recorded his statement. He denied the suggestion that he had made any statement before the Deputy Superintendent of Police and had subsequently changed his version before the Court. He further denied the suggestion that he had stated before the Investigating Officer or the Deputy Superintendent of Police that Pramod Singh had caught hold of the neck of Mahendra and fired at him near the neck. He deposed that although he had given statement before the police officer, but he had not made such allegations. He further denied the suggestion that he had stated before the police that Ashok had fired at the abdomen of Mahendra or that Ashok had caught hold of the back collar of Mahendra from front side. He deposed that Ashok fired immediately upon catching hold of him.

This witness (PW 3) had further deposed that while they were coming back from canal, Mahendra was behind all of them. He denied that he had not stated before the police that Arun had come to the place of occurrence and he and Dipu had narrated the incident. He further deposed that after the firing, he remained at the place of occurrence and denied the suggestion that he had stated before the police that immediately after the occurrence, he had gone to the library. He further stated that he had spoken to the police regarding the issue of illicit relationship, but he did not know whether the police had recorded the same in his statement. This witness (PW 3) had further deposed that it is not correct that since Ashok Singh is a witness in his railway case, and he along with his father and brother Parmanand Singh had been exerting pressure upon Ashok Singh not to depose in the railway case and, when Ashok refused to do so, he had falsely been implicated in the present case.

PW 4, Bipin Kumar is the Investigating officer of this case and he, in his examination-in-chief, had deposed that on the orders of the Officer-in-Charge of the Police Station, the investigation of the case was entrusted to him. He thereafter proceeded to the place of occurrence along with Arun Kumar and other witnesses, which was situated on the northern side of the land adjoining the well of Middle School, Simra, which is located towards the north-east of village Simra. He deposed that the dead body of the deceased was found lying there and a considerable amount of blood was present at the place where the dead body was lying. He further deposed that on the northern side of the dead body, he found one pair of old light-coloured rubber slippers, which were identified as belonging to the deceased, Mahendra Singh. This witness had further deposed that in compliance with the directions of his superior officers, he submitted charge-sheet against Nobind Singh and Ravi Ranjan @ Dipu and Ashok Singh and Pramod Singh were shown as "not sent up".

This witness (PW 4), in his his cross-examination, had deposed that if Nobind Singh and Ravi Ranjan @ Dipu had come to the police station and informed him that they were witnesses in the case, he would have recorded their statements. He further stated that the investigation conducted by him was subjected to supervision by the Deputy Superintendent of Police and the City Superintendent of Police had vigilant on the investigation. The witness further deposed that on 09.01.1990 the Deputy Superintendent of Police inspected the place of occurrence along with him and also recorded the statements of witnesses. He further stated that he had received the supervision note of the DSP and had incorporated its relevant portions into the case diary. The DSP had directed him to arrest Dipu and Nobind Singh and in compliance with the said direction, he arrested them. According to this witness, the City Superintendent of Police directed to submit charge-sheet against Nobind Singh and Ravi Ranjan @ Dipu and to exonerate Ashok Singh and Pramod. He deposed that he acted in accordance with the said directions. He further deposed that no complaint had ever been made by either the City Superintendent of Police or the Deputy Superintendent of Police against the manner in which he had conducted the investigation.

This witness (PW 4) had further deposed that during the investigation, he had recorded the statements of Ram Briksh Singh, Rajeshwar Singh, Ram Lakhan Singh, Kapil Dev Rai, Kranti Devi, Raghuvir Singh, Anil Singh, Prem Singh, Munna Singh, Lallan Singh, Jagdish and Avesh Singh (none of them examined during the trial).

This witness (PW 4) had further deposed that Nobind Singh had not informed him that Ashok Singh had illicit relations with any other woman and also no statement had been made before him that two days prior to the occurrence, Ashok Singh had gone to the house of Mahendra Singh and abused him. He also deposed that no statement had been made by him that Pramod had caught hold of the neck of Mahendra and shot him in the neck or that Ashok had fired at the abdomen of Mahendra. The witness further stated that Nobind Singh had informed him that Pramod Singh had caught hold of Mahendra Singh from behind by the neck and had fired at the left side of his neck. He further stated that Nobind Singh had also told him that Ashok Singh had fired at the abdomen of Mahendra Singh and that these facts had been recorded by him in the case diary in the same manner.

The statement of the informant, Arun Kumar (PW 1) was also recorded under Section 164 Cr.P.C. on 07.01.1990, in which he had reiterated his earlier version.

Now, coming to the defence witnesses, DW 1 (Kapildeo Ram), in his deposition, had deposed that Mahendra was killed on 07.01.1990 at 08:00 PM. At that time, he was returning from Patna to his home on bicycle. He met Ram Lakshman Singh when he was at a distance of 300-400 ft from the school. They moved 50-60 feet ahead of the school. There is a well near the school, where they saw Dipu, Naubind and Mahendra sitting talking with each other. When he moved forward, he heard the sound of firing coming from the side of the well and the he heard second sound, and thereafter saw, in the torch light, Naubind Singh and Dipu Singh fleeing away having pistol in their hands. Due to fear, he did not make any sound but he went to the Chowkidar from his house and informed. When he reached at the well, he saw the dead body of Mahendra Singh and several persons were surrounding him.

This witness (DW 1) had further deposed that 4-5 days before the occurrence, a fire broke out and Nobind Singh had told that Mahendra Singh ran away after igniting fire. The brother of Dipu, Lal Babu Singh, was killed and Dipu was accused in that case and Mahendra Singh took the wife of Lal Babu Singh to police station in order to get her arrested. Mahendra Singh was the eldest brother while Arun was the youngest. Mahendra’s first wife died in a rail accident due to dispute with the wife of Arun and Mahendra performed second marriage with a girl who was cousin sister (mauseri bahan) of Ashok Singh’s wife. Since Mahendra and Ashok were sarhu in relation, as such Mahendra used to take care of agricultural work of Ashok.

In his cross-examination, this witness (DW 1) had deposed that his statement was recorded under Section 164 of the Code of Criminal Procedure, 1973. He denied that in his statement under Section 164 of the Code of Criminal Procedure, 1973, Mahendra Singh, Deepu and Nobind were having discussion among themselves and he saw Nobind Singh and Dipu Singh having pistols fleeing away from the place of occurrence. He further deposed that It is not true that he deposed in the 164 statement that Mahendra Singh was having dispute with Dipu Singh and Nobind Singh. He does not remember as to whether he had stated that Mahendra Singh ignited fire in the village of Nobind Singh. He further deposed that he did not see as to who fired upon Mahendra Singh. It is also not true that he works as a labourer at Ashok Singh and in order to save him, he had falsely deposed.

DW 2, Ram Lakshman Singh, had deposed that the occurrence took place on 07.01.1990 at about 08:00 PM and he was returning from Patna. When he reached near the school and was at a distance of 300-400 yards north, he saw Kapildeo Prasad coming on a bicycle. When moved about 10-15 feet forward, he heard a sound of pistol coming from the side of middle school. As he again moved 1-2 feet forward, he heard second sound of firing and saw three persons fleeing away, among which this witness identified Dipu Singh, who was saying that “work had been completed, run away”.

In his cross-examination, this witness (DW 2) had deposed that the occurrence took place in the month of January and in this month, Sun sets at 6 PM. It was a dark night, sky was full of clouds and he did not see who killed Mahendra Singh. The police arrived at the place of occurrence in the mid night and he was also inquired by the police.

The statement of this witness (DW 2) was recorded under Section 164 of the Code of Criminal Procedure, 1973 and at the time of his statement, Darogaji was not present. He further deposed that it was not true that he had stated that at the time of occurrence, he was watching cinema on T.V. He denied the suggestion that since he is the gotia of Ashok Singh, in order to save him, he had falsely deposed. He further denied that it was not correct that since Dipu and Nobind are witnesses, he was trying to implicate them.

DW 3, Anil Kumar, had deposed that his co-villager, Mahendra Singh, was killed and on that date, he was at the dalan (courtyard/verandah) of Raghuveer Singh from since 07:00 to 07:15 PM, along with Pramod Singh, Ramesh Singh, Munna Singh, Ganesh Singh, Raghuveer Singh and others. At that place, they received information that Mahendra Singh had been killed near the well situated close to the school and on the said information, all of them immediately proceeded to the well, where they saw Mahendra Singh lying dead. They also saw the members of the deceased's family weeping at the spot. Raghuveer Singh’s dalan was at distance of 500 yards from the place where dead body of Mahendra Singh was lying. The witness further deposed that the occurrence had taken place on a Sunday at about 8:30 PM. Arun Singh arrived at the place of occurrence after the witnesses had already reached there. Thereafter, Arun Singh, Novind Singh and Dipu Singh left together; however, this witness did not know where they had gone. The police came during the night, but this witness did not know the time when the police arrived. This witness had stated that he did not know who were accused persons in the present case. He also deposed that he was not aware that Dipu Singh and Novind Singh were witnesses in the case. This witness further stated that Ashok Singh is his co-village and it is not correct that since he is in the party of Ashok Singh, he had deposed falsely to save Ashok Singh.

In the cross-examination, this witness (DW 3) had deposed that on the date and time when Mahendra Singh was killed, he was at the dalan of Raghuveer Singh along with Ashok Singh, Pramod Singh, Mahesh Singh, Ramesh Singh, Munna Singh and Raghuveer Singh. This witness identified Ashok Singh, who is one of the accused, in the dock. This witness had further deposed that he had not come to the Court along with Ashok Singh and he was informed by the village chowkidar to appear and depose. He further stated that he had no dispute with Ashok Singh. He denied the suggestion that he was on friendly terms with Ashok Singh and on that account, he had given false evidence in order to save him.

DW 4, Ramesh Kumar Singh, has deposed that Mahendra Singh was his co-village, who was murdered at 8:30 PM on 07.01.1990. At that time, this witness was at the dalaan (courtyard) of Raghuveer Singh, along with Ashok Singh, Pramod Singh, Munna Singh, Anil Singh and others. Some persons came at the dalaan and told that Mahendra Singh had been shot dead by someone near the well of the school. This witness had deposed that Raghuveer Singh's dalan was situated at a distance of about 500 yards from the school. Upon receiving the information, this witness, along with Ashok Singh, Pramod Singh, Munna Singh and Anil Singh, went to the well near the school and found Mahendra Singh lying in a pool of blood and dead. The members of the deceased's family were present there and Arun Singh reached the place of occurrence after them. Arun Singh asked the members of Mahendra Singh's family as to who had killed him, whereupon they replied that they did not know who had killed and thereafter Arun Singh immediately returned from there.

This witness (DW 4) had further deposed that the accused, Ashok Singh, was the sarhu of the deceased, Mahendra Singh from the second marriage and they had cordial relations. He further stated that Mahendra Singh's first wife had committed suicide by coming under a railway train. According to the witness, there was discord between Arun Singh's wife and Mahendra Singh's first wife, and it was on account of such strained relations that she committed suicide. Arun Singh, Dipu Singh and Nobind Singh were friends and had good relations. He further deposed that his statement was recorded before the police.

In his cross-examination, this witness (DW 4) had deposed that Ashok Singh is the accused of this case; whereas Nobind Singh, Dipu Singh and Arun Singh were witnesses of this case. This witness further denied that Ashok Singh is friend of this witness and in order to save him, he had falsely deposed before the Court.

Having carefully examined the entire evidence available on record, this Court finds that conviction founded only upon the testimonies of PW 2 (Ravi Ranjan Singh @ Dipu) and PW 3 (Naubind Kumar Singh), who claimed themselves to be the eyewitnesses to the occurrence. The informant (PW 1) admittedly is not an eyewitness to the actual assault and his evidence is confined to having allegedly seen the appellant moving away from the place of occurrence immediately after hearing gunshots and the occurrence of shooting was narrated to him by PW 2 and PW 3.

The principal question, as discussed earlier, for determination is whether the prosecution has succeeded in proving, beyond all reasonable doubt, that it was the appellant, Ashok Singh, who caused the fatal firearm injuries to the deceased.

PW 1 (Arun Kumar) admittedly did not witness the actual shooting. According to him, after hearing two gunshots, he rushed towards the school and saw the appellant and Pramod Singh proceeding towards the south carrying pistols in their hands. His evidence regarding the actual manner of occurrence is entirely hearsay, being based upon what PW 2 and PW 3 had narrated to him. Therefore, the evidence of PW 1, can only be treated as corroborative regarding the presence of the appellant in the vicinity of the place of occurrence and not as substantive evidence regarding commission of the offence.

Moreover, PW 1 had admitted in his cross-examination that he had not stated in his fardbayan that the appellant had earlier attempted to kill the deceased. This omission assumes significance, as the alleged previous attempt on the life of the deceased was introduced for the first time during trial, constituting a material improvement over the version disclosed in the earliest version of the prosecution case.

PW 2 (Ravi Ranjan Singh @ Dipu) and PW 3 (Naubind Singh) are the only eyewitnesses to the occurrence. However, the evidence of the Investigating Officer (PW 4) disclosed that upon investigation, both, PW 2 and PW 3, were found to be involved in the murder of the deceased and charge-sheet was submitted against them for offences under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act, whereas the appellant and deceased co-accused Pramod Singh were specifically found innocent and shown as "not sent up". It has further been disclosed by the Investigating Officer (PW 4) that the Deputy Superintendent of Police and the City Superintendent of Police were regularly monitoring the investigation and at different level, issued certain direction, which the Investigating Officer followed.

Though the opinion of the Investigating Agency is not binding upon the Court and a conviction can legally be based even on the testimony of a witness who was initially suspected, yet such evidence requires strict scrutiny and careful evaluation of highest order.

The Supreme Court, in paragraph 16 of Sudhakar alias Sudharshan v. State represented by the Inspector of police, Srirangam Police Station, Trichy, Tamilnadu, reported in (2018) 5 SCC 435, has held as follows:-

In the present case, PW 2 and PW 3 were not ordinary eyewitnesses; rather, they were persons against whom the investigating agency itself had found sufficient material to submit charge-sheet for the very offence under consideration. Consequently, their testimonies warranted careful scrutiny and could not be accepted without reliable independent corroboration. However, the prosecution has failed to bring on record any such independent corroborative evidence to lend assurance to their version.

It is the case of the prosecution from the very inception of the trial that the deceased sustained two separate firearm injuries inflicted by two different assailants. According to the testimonies of PW 2 and PW 3, the appellant fired at the neck of the deceased, while the co-accused, Pramod Singh, fired another shot aimed directly at the abdomen of the deceased. The prosecution has, therefore, attributed distinct roles to the two accused persons and sought to establish their respective acts through the ocular account of these two eyewitnesses. However, the medical evidence does not support this version of the prosecution. On the contrary, it materially contradicts the eyewitness account regarding the nature and location of the firearm injuries.

PW 5, Dr. Arvind Kumar Singh, who conducted the post-mortem examination, found only two firearm entry wounds on the body of the deceased. The first entry wound was located on the left side of the neck. The second entry wound was found on the left side of the chest in the mid-axillary line near the inferior angle of the scapula. Apart from these two entry wounds, the doctor specifically noted Injury No. 3 in the abdomen as a wound of exit and not wound of entry. Thus, the medical evidence clearly demonstrates that there was no firearm entry wound in the abdomen of the deceased. Therefore, the prosecution allegation that the deceased received a separate gunshot injury on the abdomen is not supported by the post-mortem report.

PW 2 and PW 3 have specifically stated that Pramod Singh fired at the abdomen of the deceased from the front while standing face-to-face. If this version is assumed to be correct, there should have been an entry wound in the abdomen and an exit wound at some other place. However, the post-mortem report shows one of the bullets exited through the abdomen, which is just opposite to what the prosecution witnesses have deposed. Thus, the ocular version regarding the second gunshot and the role assigned to Pramod Singh is inconsistent with medical evidence.

PW 2, in his deposition, has deposed that the appellant was holding a pistol in his right hand, caught the collar of Mahendra by his back and fired immediately upon catching him. This version again is not acceptable to me inasmuch as a person, holding a pistol in his right hand, will catch the collar of the deceased by his back, and shoot at him on his left side of the neck, which is upper part of the body, by twisting his right arm.

It is the consistent version of PW 2 and PW 3 that the appellant fired at the deceased from close range. This version again is contrary to the findings arrived at by the doctor (PW 5) inasmuch as PW 5 has deposed that there was no blackening or charring around the wound of the deceased and further deposed that there is opinion of Modi and Taylor that there would be blackening and charring around the wound of shot if fired from four feet range.

These inconsistencies are not minor discrepancies but are material contradictions and demolish the prosecution case. In the absence of any explanation from the prosecution for these inconsistencies, it would not be safe to rely upon the eyewitness account on this aspect.

The Supreme Court, in paragraph 17 of Pruthiviraj Jayantibhai Vanol v. Dinesh Dayabhai Vala and Others, reported in (2022) 18 SCC 683, has held as under:

The contradiction in the present case is not minor or insignificant, but demolishes the prosecution case with regard to the manner in which the occurrence had allegedly taken place.

The prosecution has attempted to establish a motive for the alleged occurrence. However, the evidence on record reveals that the motive put forward by the prosecution is neither consistent nor uniform. Different witnesses have assigned different reasons for the occurrence and these versions are mutually inconsistent. Such contradictions assume significance because the prosecution has relied upon motive as an important circumstance to connect the appellant with the killing of the deceased.

According to the fardbayan, the motive for the occurrence was that the widow, Manju Devi, had instituted a criminal case against the deceased and the appellant had supported her in that case. This is the motive disclosed in the earliest version of the prosecution case.

However, PW 2 departed from the prosecution's original case and introduced a completely new story in his deposition. He deposed that the appellant had illicit relationship with his sister-in-law and the deceased had objected to such relationship. According to him, this was the real reason behind the occurrence. PW 3 also supported the same version regarding the alleged illicit relationship.

The prosecution version becomes even more doubtful when the statement of PW 1 recorded under Section 164 of the Code of Criminal Procedure is considered. In that statement, yet another version emerges, wherein the name of Dayanand Singh is introduced, and it is stated that not only the deceased but the villagers in general had opposed the appellant's conduct. This is materially different from both the version in the fardbayan and the evidence given before the Trial Court.

The evidence of the Investigating Officer (PW 4) further weakens the prosecution case. He categorically stated in his cross-examination that no witness had disclosed during the investigation before him that the appellant had any illicit relationship with any woman. He also stated that no witness had informed him that the appellant had abused the deceased shortly before the occurrence. These facts, which were introduced for the first time during trial, therefore, do not find place in the statements recorded during investigation.

Thus, the prosecution has put forward different and inconsistent motives at different stages of the case. The improvements and embellishments made during the trial are material in nature and are not minor discrepancies. They create serious doubt about the truthfulness of the prosecution version and adversely affect the credibility of the evidence led against the appellant.

PW 4, the Investigating Officer, deposed that during the course of investigation, he had recorded the statements of several witnesses, including Ram Briksh Singh, Rajeshwar Singh, Ram Lakhan Singh, Kranti Devi, Prem Singh, Munna Singh, and others. However, none of these witnesses were examined by the prosecution during the trial. It is also noteworthy that according to the prosecution itself, the occurrence took place during a public gathering where nearly twenty villagers had assembled to watch a cinema programme. Despite the availability of several independent witnesses present at the place of occurrence, the prosecution failed to examine even a single independent witness in support of its case. Instead, the prosecution chose to place reliance solely on the testimonies of PW 2 and PW 3, who had themselves been chargesheeted by the investigating agency for the very same offence. Although the mere non-examination of witnesses is not invariably fatal to the prosecution case in the facts and circumstances of the present case, this omission assumes considerable significance, particularly when the prosecution has withheld independent and chargesheeted witnesses and rested its case solely on witnesses whose credibility is itself under serious doubt. Such failure to produce the best available independent evidence gives rise to an adverse inference against the prosecution and further weakens its case.

The Supreme Court, in the case of Takhaji Hiraji v. Thakore Kubersing Chamansing and Others, reported in (2001) 6 SCC 145, has held as follows:-

The law with regard to withholding of material witness has been settled much earlier by the Privy Council and followed later on. The law is that witnesses essential for unfolding the prosecution case must be examined, even if, their version is detrimental to the story of the prosecution. Moreover, it has also been held that it is the choice of the prosecution to examine or not to examine any witness. From perusal of the record, it is important to note that PW 2 and PW 3 were not charge-sheet witnesses; rather, they were persons against whom the investigating agency itself had submitted a charge-sheet for the very offence under consideration. Despite this, the prosecution chose to examine them as its principal eyewitnesses. Further, out of the fifteen witnesses cited in the charge-sheet, the prosecution examined only three, namely, the informant (PW 1), the Investigating Officer (PW 4), and the doctor (PW 5). None of the remaining charge-sheet witnesses, including any independent witness, was examined, despite the prosecution case itself indicating that several independent persons were present at the place of occurrence. In these circumstances, the withholding of material and independent witnesses, coupled with the prosecution's reliance upon PW 2 and PW 3, who had themselves been chargesheeted during the investigation, creates a serious doubt regarding the fairness and reliability of the prosecution case.

In defence, four witnesses were examined. DW 1 and DW 2 sought to cast doubt on the prosecution case by deposing that they had seen PW 2 and PW 3 fleeing from the place of occurrence immediately after the incident, thereby suggesting their possible involvement in the alleged killing of the deceased. DW 3 and DW 4, on the other hand, sought to establish the plea of alibi by stating that at the relevant time of the occurrence, the appellant and the deceased co-accused, Pramod Singh, were present at the dalan of Raghuveer Singh and, therefore, could not have participated in the alleged offence.

It is well settled that the defence is not required to prove its case beyond reasonable doubt. Nevertheless, the defence evidence cannot be ignored and must be appreciated along with the entire evidence on record. In the present case, the defence evidence, when considered in the light of the material inconsistencies, contradictions and other infirmities in the prosecution case, lends support to the defence version and further reinforces the reasonable doubt arising from the prosecution evidence, making it unsafe to sustain the conviction of the appellant.

The Supreme Court, in paragraph 3 of Munshi Prasad (supra), has observed as follows:

Upon an overall appreciation of the evidence on record, this Court finds that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. The informant (PW 1) is admittedly not an eyewitness to the occurrence. The entire prosecution case rests primarily upon the testimonies of PW 2 and PW 3, who were themselves chargesheeted by the investigating agency for the very same offence. The prosecution has also failed to examine any of the independent witnesses whose statements were recorded during investigation, despite the occurrence having allegedly taken place in presence of a large number of villagers.

Further, the ocular version regarding the alleged firearm injury on the abdomen stands materially contradicted by the medical evidence, which clearly shows that the abdominal injury was wound of exit and not wound of entry, which goes to demonstrate that the alleged two eyewitnesses to the occurrence, i.e. PW 2 and PW 3, having assumed that they have not killed the deceased, have not witnessed the occurrence.

The aforesaid deficiencies are not mere minor discrepancies but creates serious doubt about the truthfulness and reliability of the prosecution version.

It is a settled principle of criminal jurisprudence that suspicion, however strong, cannot take the place of legal proof. The burden always lies upon the prosecution to establish the guilt of the accused beyond all reasonable doubt, and where two views are possible, one favourable to the accused must be adopted.

In the facts and attending circumstances of the present case, the appellant ought to have been accorded benefit of reasonable doubt inasmuch as the prosecution had failed, in the light of the discussion of the evidence on record, to bring home the charges against the appellant beyond all reasonable doubt.

In the result and for the foregoing reasons, this appeal is allowed. The impugned conviction of the appellant and the sentences passed against him by the judgment and order, under appeal, are hereby set aside. The appellant is held not guilty of the offence, which he stand convicted of, and he is hereby acquitted of the same under benefit of doubt.

Since the appellant is on bail, his bail bonds are hereby cancelled and his sureties shall stand discharged.

Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.

Alok Kumar, J.: I agree.