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Judgment
(Per: HONOURABLE MR. JUSTICE ANSUL)
Heard the learned counsel for the appellant and learned Additional Public Prosecutor for the State.
The present appeal has been filed against the Judgment of conviction dated 14.01.2008 and order of sentence dated 16.01.2008 passed by the learned Additional District and Sessions Judge, F.T.C-5, Khagaria whereby the appellant was convicted for the offence punishable under Section 302 and was sentenced to undergo imprisonment for life and a fine of Rs. 10,000/- and on default of payment of fine he was sentenced to suffer six months' simple imprisonment. Further, the appellant was convicted for the offence punishable under Section 201 and was sentenced to undergo Rigorous Imprisonment for four years. The sentences were directed to run concurrently.
The prosecution in the instant case was initiated on the Fardbayan lodged by Md. Mustafa (PW-14), the father of the deceased. He lodged the information on 29.06.2005 at 8:15 am at Gangaur (O.P.) alleging that his son Md. Munawar aged about 18 years went out of the house at 6.00 pm but did not return at night. When he started searching then near Bahiyar near the field of Kamali Mahto, he saw the dead body of his son. There were a number of injuries on his body. He stated that some 10 to 12 days back, there was a fight between his son Munawar and the son of one Naval Mahto of Simri. He claimed that unknown persons killed his son.
The boy went missing on 28.06.2005 at 6 pm. The information was lodged at 8:15 am on 29.06.2005 after recovery of the dead body of the boy and not before. One Md. Imtiyaz was a witness to the FIR. The FIR was recorded by Ramshankar Tiwari. The I.O. has not been examined.
The police after investigation submitted charge sheet. Thereafter, the case was committed to the Court of Session and charges were framed on 21.06.2006 under Sections 302 and 201 of the Indian Penal Code.
PW-1, Md. Abu Sayyid deposed. He stated that in the evening, he and Munawar were returning after watching their fields. He went to attend the call of nature and Munawar sat beside him in the shadow of jack-fruit tree. In the meantime, the appellant came there from the south and assaulted Munawar with a stick. PW-1 stated that he fled away. He stated that even after going to some distance he heard the sound of cries of Munawar twice. He went to his house. In the morning he came to know that the dead body of Munawar was lying in the field near the jack fruit tree. He stated that he also gave statement under Section 164 Cr.P.C. He stated that the sun had set and the darkness had started setting when he was attending the call of nature. He stated that he fled away from the place where he was attending the call of nature. He also stated that the dead body was not near the jack fruit tree but at some distance in the field. He stated that his statement had not been recorded by the police. Records reveal that his statement was recorded by the police at Para 24 of the case diary.
PW-2, Md. Jiyauddin deposed. He did not claim to be an eye witness. He stated that Musahru Sahni was brought by the police at his door and he was assaulted and only then he admitted to the killing. He was not declared hostile.
PW-3, Kabirul Haque deposed. He claimed himself to be an eye-witness. He stated that on 28.06.2005 at 07:30 pm he was going towards the station where he saw that Musahru Sahni was dragging a young boy in the light of a torch. He identified him to be the deceased. Thereafter, he went to Imli station and from there to Samastipur. The occurrence is of 28.06.2005 while the statement is recorded by the police on 12.07.2005 and his statement under Section 164 Cr.P.C. was recorded on the same day.
The law is fairly well settled in this regard. If a person has seen the occurrence and is available for examination even a delay of two days in recording his examination has been held sufficient to raise doubt about him as an eye-witness of occurrence. It is the admitted case of this witness that he went to Samastipur and returned on the second day. Still his statement has been recorded on 12.07.2005 i.e. after a delay of 12 days and this makes any reliance on the statement of this witness very difficult.
PW-4, Mangali Mahto only claims to have seen the dead body and has not claimed to have seen any part of the occurrence. Same is the stand of PW-5, Mozaheed.
PW-6, Devo Mahto completely denied any knowledge of the occurrence and was declared hostile.
PW-7, Bango Paswan deposed. He only claims to have seen the dead body and he was also declared hostile.
PW-8 Md. Shabbir deposed. He stated that on hulla he went to the place of occurrence and police prepared the inquest report and he signed the same.
PW-9 Md. Sajjad only claims to have seen the dead body at the place of occurrence.
PW-10, Ranjeet Sharma claims to have seen the appellant going towards his house and he claims to have seen that there was blood on his clothes. The occurrence is of 28.06.2005 and his statement was recorded by the police on 22.08.2005 completely discrediting him from being an eye-witness and having seen any part of the occurrence.
PW-11, Moiuddin alias Mohan Sah deposed. He stated that Musahru Sahni was assaulting the deceased and Munawar was shouting to save himself. His statement was also recorded on 22.08.2005 i.e. more than two months after the lodging of the FIR and this is also unacceptable to this Court.
PW-12 is Md. Jainulawadin. He did not claim to be an eye-witness to any part of the occurrence but only stated that he saw the dead body.
PW-13, Dr. Ramanand Paswan deposed. He listed the injuries on the head. He declared the time of death. The postmortem was conducted at 2:10 pm on 29.06.2005 and the doctor declared the time elapsed since death to be 24-26 hours. This would take the time of death to 2:10 pm on 28.06.2005 or even earlier. The specific prosecution case is that the deceased left his house at 6 pm on 28.06.2005. He also stated that these injuries could be possible on a fall from a tree.
PW-14, Md. Mustafa (informant) deposed. He claimed that his son had gone with another person. When they reached near the fields then Musahru Sahni assaulted his son. He started searching for his boy on the next day. He stated that when villagers caught Musahru Sahni then he accepted his guilt before the officer-in-charge and others. This is already given in the evidence that PW-2, Md. Jiyauddin stated that the appellant confessed only when assaulted by the police.
The case shows up two things. The first is the delay in lodging the FIR. A child of 18 years went missing at 6 in the evening and he did not return at night. Still the FIR was lodged only after recovery of the dead body.
The claimed eye witnesses have been examined after great delay. The statement of PW-1, an eye-witness, suffers from two errors. First of all, the FIR is very specific on the point that the deceased had left the house at 6 pm all alone. Secondly, this witness who claims to have accompanied the deceased to the place of occurrence had deposed on 10.07.2007 regarding an occurrence of 28.06.2005. Another witness, PW-10, who alleges that he saw the appellant with blood on his clothes, had his statement recorded by the police on 22.08.2005. PW-11 Moiuddin alias Mohan Sah, claiming himself to be an eye witness to the assault, gave his statement on 22.08.2005. These are monumental delays for persons who were eye-witnesses to the occurrence and give rise to bona fide doubt regarding veracity of their statements and them being eye-witnesses. To the assessment of this Court, these persons were not witnesses to any part of the occurrence and have been introduced during investigation to buttress the prosecution case.
In Ganesh Bhavan Patel v. State of Maharashtra, (1978) 4 SCC 371, it has been held as follows:
“15.As noted by the trial court, one unusual feature which projects its shadow on the evidence of PWs Welji, Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, is the un-due delay on the part of the investigating officer in record-ing their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under Section 161 of the CrPC were recorded on the following day. Welji (PW 3) was examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at 1 p.m. Delay of a few hours, simpliciter, in recording the statements of eyewitnesses may not, be itself, amount to a serious infirmity in the prosecution case. But it may as-sume such a character if there are concomitant circum-stances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case. 29. Thus considered in the light of the sur-rounding circumstances, this inordinate delay in registra-tion of the ‘FIR’ and further delay in recording the state-ments of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prose-cution story. 47. All the infirmities and flaws pointed out by the trial court assumed importance, when considered in the light of the all-pervading circumstance that there was inordinate delay in recording Ravji's statement (on the ba-sis of which the “FIR” was registered) and further delay in recording the statements of Welji, Pramila and Kuvarbai. This circumstance, looming large in the back-ground, in-evitably leads to the conclusion, that the prosecution story was conceived and constructed after a good deal of delib-eration and delay in a shady setting, highly redolent of doubt and suspicion.”
In Shahid Khan v. State of Rajasthan, (2016) 4 SCC 96, it has been held as follows:
“20.The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming as to why they were not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eyewitnesses to the oc-currence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be in-troduced. The circumstances in this case lend such signifi-cance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, do not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants. The High Court has failed to advert to the contentions raised by the appellants and reappreciate the evidence thereby re-sulting in miscarriage of justice. In our opinion, the case against the appellants has not been proved beyond reason-able doubt.”
Apart from the fact that FIR was lodged not after missing of the deceased but after recovery of dead body and the delayed recording of statement of the witnesses, the IO of the case had not been examined. It is trite law that non-examination of the IO may not prove fatal but this rule is subject to an exception. If the defence is able to show that prejudice has been caused due to non-examination of the IO, the same may prove fatal.
Learned counsel for the appellant Mr. Ranjeet Ku-mar Singh 2 states that in the absence of IO the place of occur-rence could not be conclusively established. No objective material like the stick or clothes of the deceased and the accused or the blood at the place of occurrence could be collected. The story of confession of the appellant remains unverified as the allegation is that after assault by police he confessed. Further, the reason for de-layed examination of the witnesses could not be determined. There may have been explanations for delayed examination but they are not forthcoming in the statement of witnesses and the IO is not there to explain the delay. These are the situations which could have made or broken the entire prosecution case.
In Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417, it has been held as follows:
“18.Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR 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 rea-son, the investigating officer has not been examined by the prosecution. It is an accepted principle that non-examina-tion of the investigating officer is not fatal to the prosecu-tion case. In Behari Prasad v. State of Bihar [(1996) 2 SCC 317 : 1996 SCC (Cri) 271] , 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 Bi-har [(2000) 9 SCC 153 : 2000 SCC (Cri) 1186] , it has been opined that when no material contradictions have been brought out, then non-examination of the investigat-ing officer as a witness for the prosecution is of no conse-quence 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 ex-planation 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 [(2001) 6 SCC 407 : 2001 SCC (Cri) 1148] , Rattanlal v. State of J&K [(2007) 13 SCC 18 : (2009) 2 SCC (Cri) 349] and Ravishwar Manjhi v. State of Jharkhand [(2008) 16 SCC 561 : (2010) 4 SCC (Cri) 50] , has explained certain circumstances where the examination of investigating offi-cer 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.”
Thus, taking an overall view of the matter, the delay in lodging of the FIR, the delay in examination of witnesses and the resultant absence of any eye-witness, and the non-examination of the IO, this Court has no option but to acquit the appellant.
The appeal is allowed. The judgment of conviction dated 14.01.2008 and the order of sentence dated 16.01.2008 passed by the learned Additional District and Sessions Judge, F.T.C. 5, Khagaria is hereby set aside. Consequently, the appellant of the present appeal is acquitted of the charges levelled against him.
The appellant is on bail since 24.02.2010. He is discharged from the liabilities of his bail bond.
The Office is directed to send back the trial court records along with a copy of this judgment to the learned trial court, forthwith.