Prabir Pradhan @ Pravir Pradhan vs State Of Jharkhand

Chandrashekhar, J

Five persons, namely, Prabir Pradhan, Ravi Singh, Biju Nag, Amit Dubey and Sanjay Singh were named as accused by Sunil Kumar Jha in his

fardbeyan which was recorded in the night of 01.08.2006 at about 10:15 p.m. On the basis of his fardbeyan, Kadma P.S. Case No. 92 of 2006 was

registered against the appellants under section 302/34 IPC and section 27 of the Arms Act.

In this batch of criminal appeals, the appellants, namely, Prabir Pradhan @ Pravir Pradhan and Amit Dubey in Criminal Appeal (D.B.) No.904 of

2008; the appellant, namely, Ravi Singh @ Ravi in Criminal Appeal (D.B.) No.1009 of 2008; the appellant, namely, Biju Nag in Criminal Appeal

(D.B.) No.211 of 2009 and the appellant, namely, Sanjay Singh in Criminal Appeal (D.B.) No.822 of 2008, have challenged the judgment of conviction

and the order of sentence of RI for life and fine of Rs.10,000/- each under section 302/34 IPC.

The appellants have been acquitted of the charge under section 27 of the Arms Act.

The prosecution’s case as disclosed by the informant in his fardbeyan is that, in the evening of 01.08.2006 he along with his friends, namely,

Purnendu Kumar Singh, Debanand Jha, Jitendra Singh, Shyam Rao and Navin Kumar were gossiping near the Telephone Booth of Arvind Singh in the

Nirdosh Choudhary Mandir Marketing Complex. At that time, five persons, namely Sanjay, Biju, Prabir, Ravi and Amit Dubey came inside the

Complex. They called Purnendu Kumar Singh @ Nandu ( hereinafter referred to as Purnendu) and when Purnendu had gone there all of them

surrounded him and started assaulting him with fists and slaps. Suddenly, they whipped out pistols and Prabir and Biju fired shots at Purnendu.

Thereafter, Sanjay Singh, Ravi Singh and Amit Dubey have also fired with their pistol at Purnendu. They fled away towards Ram Janam Nagar

through ECC flats, firing in the air. The informant has stated that his friends who were present there took him for treatment to Tata Memorial Hospital

(hereinafter referred to as TMH) where Purnendu was declared dead by the doctor.

After the investigation, a charge sheet was filed and the appellants have faced the trial on the charge of committing murder of Purnendu.

During the trial the prosecution has examined nine witnesses; the informant is PW-2.

The informant is a friend of the deceased. The prosecution has projected PW-1, PW-2, PW-3, PW-4, PW-6 and PW-7 as eye-witnesses. They

have also claimed that they are friends of the deceased.

The defence set up by the appellants is that Purnendu was a political worker who had enmity with several persons. PW-1, PW-2 and PW-3 during

their cross-examination were given suggestion on enmity of Purnendu with Kallu, Suraj and others. They have also set up a defence that one Sonu

Singh was an eye-witness, however, he has been withheld by the prosecution and after due deliberations a First Information Report was lodged next

day.

Sri M.A. Niyazi, the learned counsel for the appellants, submits that: (i) the prosecution witnesses are planted witnesses, (ii) the First Information

Report has been lodged after deliberation, (iii) delay in sending the report to the court has made the First Information Report doubtful, (iv) the manner

of occurrence as described by the prosecution witnesses is not corroborated by the medical evidence, and (v) non-examination of the independent

witnesses who had gathered at the place of occurrence and mistakes committed by the Investigating Officer during the investigation have proved fatal

for the prosecution.

Sri Ram Prakash Singh, the learned APP and Sri Peeyush Krishna Choudhary, the learned counsel, who appears for father of the deceased have,

however, contended that minor inconsistencies, improvements, embellishments and exaggerations are bound to occur in testimony of the witnesses in

every case and on that count the prosecution’s case cannot be thrown to the winds. To buttress his contention the learned APP has relied on the

decision in “A. Shankar Vs. State of Karnatakaâ€​ reported in (2011) 6 SCC 279.

Sri Ram Prakash Singh, the learned APP has further contended that mere delay in sending a copy of the First Information Report may not cloud

the prosecution’s case if prosecution has laid consistent evidence on complicity of the accused. The learned APP has referred to and relied upon

the judgments in; (i) AIR 2016 SC 5510 (Anjan Dasgupta Vs. State of West Bengal and others) and (ii) AIR 2006 SC 887 (Rabindra Mahto & Anr.

Vs. State of Jharkhand), to fortify his submission.

Presence of the eye-witnesses â€" PW-1, PW-2, PW-3, PW-4 and PW-7 â€" at the place of occurrence has been challenged by the learned

counsel for the appellants. The prosecution story that when firing started the witnesses ran inside the STD booth has been challenged on the ground

that no site map has been produced during the trial and description of the STD booth such as its size and location has not been established by the

prosecution. The prosecution has not examined Arvind Kumar, the booth owner, to prove that there is a STD booth in the Complex and, in fact, during

the investigation even his statement was not recorded by the investigating officer.

In a criminal trial importance of prompt lodging of the First Information cannot be underscored more than what has been observed by the Supreme

Court in “Thulia Kali Vs. The State of Tamil Nadu†reported in (1972) 3 SCC 39.3 It is elementary in every criminal case that prompt registration

of the First Information Report is likely to give correct picture of the incident and reveal name of the real culprit. The Supreme Court has observed as

under:

“12. ........First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of

corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint

of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain

early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by

them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often

results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of

spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation

and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily

explained.....â€​

The registration of First Information Report at 23:35 hrs. on 01.08.2006 is shrouded in mystery. The First Information Report was lodged on

01.08.2006 but it was sent to the Court on 03.08.2006. The inquest report and the post-mortem report both were prepared next day, that is, on

02.08.2006 but there is no mention of the First Information Report on these documents. PW-4 has stated that he and PW-1 have put their signature on

their statement at the Police Station next day. PW-3 has also deposed that his friends have given their statements to Daroga ji the next day evening

and PW-6 who is a seizure witness has said that he has signed the memo after two days. The evidence of the doctor PW-5 would reveal that the

dead body of Purnendu was brought by Veermani Singh, JHG 3570, however, he has not been examined during the trial and who has identified the

dead body of Purnendu has not been disclosed by the prosecution.

In his cross-examination, the Investigating Officer has admitted that the First Information Report was lodged on 01.08.2006 at 23:30 hrs. and he

says that the inquest report was not prepared in his presence; the inquest report was prepared by one Ram Awatar, Sub Inspector of Police, however,

he was not examined during the trial. Purnendu has died at TMH is not in dispute and it is also not in dispute that an inquest report has been prepared

at TMH. At least two of the prosecution witnesses, namely, Jitendra Singh and Naveen Kumar have claimed that they had gone to the hospital with

the injured Purnendu and there is a police post at TMH, but they have not informed the police. It is not challenged that a First Information Report

should have been lodged on the statement of any one of these two witnesses.

The statement of PW-1 in his cross-examination creates further doubt on registration of the First Information Report. He has stated that about 1-

1 ½ hrs. after the occurrence the police has arrived there. He has admitted that the Daroga of Kadma police station had also come there and he

took his statement. However, there is no mention of these facts in the First Information Report. The prosecution has failed to explain why a First

Information Report was not lodged at police camp TMH by Ram Awatar, Sub Inspector of Police, who was posted there; he is not examined during

the trial, or on the statement of PW-1 which was recorded by the Daroga of Kadma police station; he is also not a witness. The prosecution has also

failed to explain the doubtful circumstances, such as, non-mentioning of details of the First Information Report on the inquest report and post-mortem

report. On this issue in “Motilal v. State of Rajasthanâ€​ reported in (2009) 7 SCC 454, the Supreme Court has observed as under:

…………There is a purpose behind the enactment of Section 157 of the Code of Criminal Procedure, 1973 (in short “the Codeâ€).

The statutory requirement that the report has to be sent forthwith that itself shows the urgency attached to the sending of the report. In a

given case it is open to the prosecution to indicate reasons for the delayed dispatch or delayed receipt. This has to be established by

evidence.

Apart from that, the unexplained discrepancy in the timings as recorded in the inquest report and the FIR has to be kept in view. It is the

prosecution version that the FIR was lodged at 10.50 a.m. If that was so, it was required to be explained by the investigating officer by

plausible evidence on record, as to how the inquest was undertaken at 10.30 a.m. at a point of time when the FIR was not in existence.....â€​

The prosecution witnesses â€" PW-1, PW-2, PW-3, PW-4, PW- 6 and PW-7 â€" have admitted in their cross-examination that place of their

residence is about 1 ½ k.m. away from Nirdosh Choudhary Complex. But there are serious inconsistencies in the statement of the witnesses who

have claimed that they were present at the place of occurrence before the occurrence has happened. PW-1 has stated that he reached the market

around 9:00 p.m â€" 9:15 p.m and in course of talk Purnendu informed him about his altercation with the accused persons in the evening. PW-1 works

as Receptionist at Hotel South Park and his duty was to make entry in the register about guests who usually check-in between 5:00 p.m till midnight.

He admits that the distance between Hotel South Park and the place of occurrence is about 5 k.m. PW-2 has stated that all of them did not come to

the market together. He has deposed that from 6:00 p.m till 9:30 p.m all of them were standing outside the STD booth, but at the same time he has

also admitted that he is working with ICICI bank and his duty period is between 8:00 a.m to 8:00 p.m. PW-3 is working with HDFC Bank and he says

that the bank remains open from 10:00 a.m to 9:00 p.m. PW-4 is employed with Centurian Bank and he says that by the time he arrived at the market

all his friends had already arrived there, but, PW-1 says that he was the last to arrive there. And, PW-7 runs a cyber cafe at Kadma which is open

from 8 a.m â€" 9:00 p.m.

The aforesaid inconsistencies in the testimony of the prosecution witnesses may seem minor, but whether these minor inconsistencies would affect

the final outcome has to be seen.

The witnesses, who have claimed that they are the eye-witnesses, themselves seem to suggest that they have not seen the occurrence. PW-2

says that he has not seen firing at Purnendu. PW-6 has stated that from inside the booth it was not possible to see outside. He has admitted that he

came to know about the assailants from the crowd which had gathered there, but no one from the crowd has been examined during the trial. PW-2

and PW-7 both have failed to identify Sanjay Singh and Ravi Singh in the court. PW-3 has stated that about three minutes after Purnendu had gone

with the accused persons he heard the sound of gun shots. Evidently, he has not seen the person who has fired at Purnendu. PW-6 has also stated

that he has not seen firing at Purnendu and he came to know about the assailants from the crowd. In fact, he has failed to identify any of the accused-

appellants in the court.

On such evidence, the prosecution cannot say that all of the six witnesses are the eye-witness.

There are other circumstances also which create considerable doubt on complicity of the appellants in the crime.

The prosecution witnesses have admitted that they did not inform the family of Purnendu. PW-3 and PW-7 who had taken the injured to TMH

have failed to name the auto driver who has taken Purnendu to the hospital. PW-4 says that 7-8 other persons have helped them taking Purnendu to

hospital in the auto but he has not disclosed the name of those persons nor has the prosecution examined them during the trial. PW-7 has stated that

he does not remember who has called tempo. He has stated that he has informed his other friends about death of Purnendu over mobile but he has

called them after Purnendu was declared dead by the doctor of TMH. In his cross-examination, he has stated that his statement was recorded at the

place of occurrence. He has further stated that his statement was recorded by the police in presence of Jitendra and Kauslendra. According to him,

their statements have also been recorded by the police in his presence. However, statement of PW-3, PW-6 and PW-7 recorded at the place of

occurrence has been suppressed by the prosecution.

The manner of occurrence as narrated by the prosecution witnesses is not consistent. Their evidence reveals that near the Hanuman Temple,

inside the Nirdosh Choudhary Complex, they were gossiping. At that time, the appellants came near the Hanuman Temple, one of them has called

Purnendu and thereafter a scuffle has ensued. PW-1 has stated that on seeing firing on Nandu he and his friends started shouting and when they

asked from the accused persons what has happened they fled away towards Ram Janam Nagar through the ECC flats, firing in the air. In his cross-

examination, he has stated that the distance between Marketing Complex and Ram Janam Nagar is about ½ k.m. But, PW-9 has stated that

Marketing Complex is situated at the north-east corner of the ECC flats. PW-3 has stated in his cross-examination that the accused persons called

Nandu towards west of Hanuman Temple and about 3 minutes thereafter he has heard sound of firing. About 3-4 minutes thereafter he goes there

and finds Nandu drenched in blood. PW-6 has stated that he was sitting in a cybercafé when he heard the sound of firing and PW-7 has named

only three persons, namely, Prabir, Biju and Amit in his examination-in-chief, who have fired at Purnendu. He has stated that Biju and Prabir whipped

out pistols and fired shots at Purnendu. Further, PW-1 has stated that the accused persons had surrounded Purnendu and they have fired on him

simultaneously. PW- 2 has also admitted that all the five appellants have fired at Purnendu at the same time.

On careful examination of their evidence, we further find that the manner of occurrence is not corroborated by the medical evidence rather it

becomes more doubtful.

Dr. J. Srinivas, who has conducted the post-mortem examination at 1:00 p.m. on 02.08.2006, has found three wounds of entrance and one exit

wound on the person of Purnendu and two bullets were recovered from his body. According to the doctor, the injuries were ante-mortem in nature

and caused by firearm. The doctor has detected contusion on brain which could be caused by hard and blunt object. In his opinion, the death has been

caused within 12 hrs. to 18 hrs. from the post-mortem. The prosecution has come with a positive case that the accused persons had encircled

Purnendu and they fired at him from a distance of 1 ft. - 2 ft. but from the place of occurrence the Investigating Officer has recovered two empty

cartridges and two bullets were recovered from body of the deceased; the doctor has found one exit wound on his person. In this context, this also has

to be kept in mind that it is not a case pleaded by the prosecution that few shots fired by the appellants have missed the target and that the empty

cartridges were lost.

From the aforesaid evidence of the prosecution witnesses, we find that there are serious discrepancies in the manner of occurrence as projected in

the prosecution story. The prosecution has failed to explain presence of other injuries on the person of Purnendu, and firing from close range and, that

too, by all the appellants simultaneously seems highly improbable and not supported by other evidence.

Besides the above, there are serious lacunas in the prosecution's case which also create serious doubt on the prosecution story that the appellants

were involved in the incident and the so-called eye-witnesses have seen them firing at Purnendu.

The investigating officer has not collected blood-stained earth from the spot; he has failed to give location of the STD booth; he has not mentioned

distance between the STD booth and the place of occurrence; he has not recorded sanha number in the case diary; he has not enquired about

antecedent of the deceased and previous enmity, if any, between the parties; he has not prepared seizure memo of two bullets which were recovered

from the body of the deceased; the crime weapon was not recovered; statement of anyone from the Complex, the temple and the auto-driver were

not recorded; the empty cartridges which were recovered from the place of occurrence were not sent for ballistic examination; the recovered empty

cartridges were not sealed; cloths of the deceased were not seized and there is no mention in the case diary whether the cloths were stained with

blood.

The prosecution was required to lead evidence on the above aspects of the case to connect the appellants with the crime, but it has miserably

failed to do so. In a case like the present one in which there is serious doubt on presence of the eye-witnesses at the place of occurrence, the

aforesaid mistakes during the investigation would certainly shake foundation of the prosecution story. This has become more relevant because the

defence has suggested that the prosecution has withheld one Sonu Singh who is the eye-witness and not PW-1, PW-2, PW-3, PW-4 and PW-7. It is

admitted by the prosecution witnesses that several other persons who were present there and examined by the investigating officer have not been

examined during the trial.

All the prosecution witnesses have stated that after firing took place there was a commotion at the Marketing Complex. It has also come on

record that several persons had gathered there and the police has recorded statement of 25-30 persons, however, none has come forward at least to

say that he has seen the appellants at the place of occurrence immediately after the firing, least to say firing at Purnendu by them. Some of the

prosecution witnesses have stated that when firing started, afraid, they had gone inside the STD Booth. They have also admitted that it was not

possible to see out-side while remaining inside the Booth. According to the prosecution, the STD Booth belongs to Arbind Kumar Singh who at the

time of the incident was present there and he has closed the shop about half an hour after the incident but he has not been examined during the trial.

The Investigating Officer has stated that he has prepared a sketch map, however, in the sketch map he has not mentioned about the STD Booth. It

has also come on record that immediately after the incident Banna Gupta, who is a leader, Sangeeta, who was the then Dy S.P. and Ashish Batra,

who was the SP had arrived there but they have not been produced during the trial. Presumably on a suggestion by the defence, in their cross-

examination PW-3 and PW-4 have denied such suggestions that Banna Gupta, Sangeeta and Ashish Batra had arrived at the place of occurrence

immediately after the incident. But, PW-4 has admitted that the aforesaid persons had visited TMH.

The above being the factual scenario, we are of the opinion that the prosecution has failed to establish presence of its eye-witnesses at the place

of occurrence and that they have seen the appellants firing at Purnendu. We further find that no explanation is coming forth from the prosecution on

non-mentioning of First Information Report details in the inquest report and postmortem report and, above all, the manner of occurrence, that is, firing

by all the appellants at Purnendu simultaneously and, that too, from a distance of one feet to two feet but absence of five pistol shots on his person, is

highly unlikely and unbelievable.

The prosecution has laid evidence which contains lot of chaffs but little grain. The so-called eye-witnesses do not seem to saying the truth and,

therefore, conviction of the appellants cannot be based on their testimony.

In the above facts, in the end, we hold that the appellants are entitled for the benefits of doubt. The prosecution has failed to establish charge

under section 302/34 IPC against the appellants beyond reasonable doubt.

Therefore, the judgment of conviction under section 302/34 IPC and the order of sentence of RI for life and fine of Rs.10000/-each passed by the

learned 1st Additional Sessions Judge, Jamshedpur in S.T. Case No. 363 of 2006 against the appellants, namely, Prabir Pradhan @ Pravir Pradhan

and Amit Dubey in Criminal Appeal (D.B.) No.904 of 2008; the appellant, namely, Ravi Singh @ Ravi in Criminal Appeal (D.B.) No.1009 of 2008;

the appellant, namely, Biju Nag in Criminal Appeal (D.B.) No.211 of 2009 and the appellant, namely, Sanjay Singh in Criminal Appeal (D.B.) No.822

of 2008 are set aside.

Accordingly, the above-named appellants are acquitted of the charges framed against them in S.T. Case No. 363 of 2006.

The appellant, namely, Ravi Singh @ Ravi in Criminal Appeal (D.B.) No.1009 of 2008 and the appellant, namely, Biju Nag in Criminal Appeal

(D.B.) No.211 of 2009, who are in jail, shall be set free forthwith, if not required in connection to any other case.

The appellants, namely, Prabir Pradhan @ Pravir Pradhan and Amit Dubey in Criminal Appeal (D.B.) No.904 of 2008 and the appellant, namely,

Sanjay Singh in Criminal Appeal (D.B.) No.822 of 2008, who are on bail, are discharged from liability of the bail bonds furnished by them.

In the result, Criminal Appeal (D.B.) No.904 of 2008, Criminal Appeal (D.B.) No.1009 of 2008, Criminal Appeal (D.B.) No.211 of 2009 and

Criminal Appeal (D.B.) No.822 of 2008 are allowed.

Let lower court records be transmitted to the court concerned, forthwith.

Let a copy of the judgment be communicated to the trial court through FAX.