Shubhendu Nath Tewary @ Shubendu Nath Tewary and Kanhaiya Kurmi Vs. the State of Bihar - Court Judgment

Excerpt:
(a) criminal procedure code, 1973—section 174—bihar police manual, 1978—rule 199(6)—inquest report—in murder case, inquest report is a document of vital importance—law expects its prompt preparation—names of assailants and manner of assault are not required to be mentioned in inquest report—failure to mention such things is not fatal for prosecution—no adverse inference of any nature can legally be drawn on this count. - - 1. both the appellants have called in question the judgment of conviction dated 20.1.2006 as well as order of sentence dated 21.1.2006 passed by shri ajit kant sharan, fast track court no. as well as under section 27 of the arms act and have been sentenced to undergo r. 8. the learned trial court on appreciation of..... ghanshyam prasad, j.1. both the appellants have called in question the judgment of conviction dated 20.1.2006 as well as order of sentence dated 21.1.2006 passed by shri ajit kant sharan, fast track court no. 3, gopalganj in sessions trial no. 109 of 2003/304 of 2005. both the appellants have been convicted under sections 302/34 and sections 307/34 i.p.c. as well as under section 27 of the arms act and have been sentenced to undergo r.i. for life under sections 302/34 i.p.c. and to pay fine of rs. 3,000/- each and in default to undergo simple imprisonment for six months, undergo r.i. for seven years under sections 307/34 i.p.c, and to pay fine of rs. 1,000/- and in default to undergo s.i. for two months and further to undergo r.i. for three years with fine of rs. 500/- under section 27.....

Judgment:

Ghanshyam Prasad, J.

1. Both the appellants have called in question the judgment of conviction dated 20.1.2006 as well as order of sentence dated 21.1.2006 passed by Shri Ajit Kant Sharan, Fast Track Court No. 3, Gopalganj in Sessions Trial No. 109 of 2003/304 of 2005. Both the appellants have been convicted under Sections 302/34 and Sections 307/34 I.P.C. as well as under Section 27 of the Arms Act and have been sentenced to undergo R.I. for life under Sections 302/34 I.P.C. and to pay fine of Rs. 3,000/- each and in default to undergo simple imprisonment for six months, undergo R.I. for seven years under Sections 307/34 I.P.C, and to pay fine of Rs. 1,000/- and in default to undergo S.I. for two months and further to undergo R.I. for three years with fine of Rs. 500/- under Section 27 of the Arms Act. All the sentences have been directed to run concurrently.

2. This is a case of double murder. The informant is father of one of the deceased, namely, Bhaskar Nath Tiwary @ Shyamunath Tiwary. The informant Dhrupnath Tiwary (P.W.3) on 28.12.2000 at 6.00 P.M. lodged fardbeyan (Ext. 5) before Officer Incharge, Malagarh P.S., namely, Krishna Kumar Diwakar (P.W.11) alleging therein that at about 5 'O' Clock in the evening he alongwith his father Sudarshan Nath Tiwary (P.W.1), uncle Rambali Nath Tiwary (P.W.2) and cousin Chunnu Nath Tiwary was getting their field irrigated. His son Bhaskar Nath Tiwary, aged about 12 years, was also present there. All of a sudden accused-appellant Subhendu Nath Tiwary armed with sword alongwith his two associates including accused-appellant Kanahaiya Kurmi armed with Katta appeared on spot and accused-appellant Subhendu Nath Tiwary gave a sword blow on the neck of his son upon which he fell down on the ground. He ran to save his son upon which his other two associates began to open fire from their respective arms. In the meantime, again accused-appellant Subhendu Nath Tiwary gave another sword blow to Bhaskar Nath Tiwary as a result he died at the spot.

3. It is further alleged that in the meantime, a large number of villagers rushed to the spot upon which all the three accused persons including these appellants began to flew towards west and in course of it they also opened indiscriminate firing as a result of which another victim, namely, Dhiraj Prasad received fire arm injuries. He was removed to hospital by his family members who ultimately also died in course of the treatment.

4. According to the informant about three years ago, he and the accused-appellant Subhendu Nath Tiwary jointly purchased a piece of land. The land was amicable divided between them and they began to cultivate the same peacefully, However, later on, the accused-appellant Subhendu Nath Tiwary asked for exchange of his share of land but the informant refused which prompted him to commit murder of his son in association of other accused persons.

5. P.W.11 Krishna Kumar Diwakar, A.S.I, after recording fardbeyan took up investigation and forwarded the same to Majhagarh Police Station for institution of the case. However, on that very day, he did not prepare inquest report of the dead body, Even the dead body of Bhaskar Nath Tiwary was not removed from the P.O. and was left under watch of Chaukidar. On the next day, i.e. 29.12.2000 at 6.00 A.M., he again came to the P.O., prepared inquest report of the dead body (Ext. 7) and sent the same to Sadar Hospital for autopsy. The inquest report of another deceased was also prepared on the same day in Hospital, which is Ext.7/1. Postmortem of two respective dead bodies were done by P.W.6, Dr. Ashok Kumar Choudhary and P.W.7, Dr. Rajendra Thakur. After completion of investigation, chargesheet was submitted by P.W.11.

6. Apart from plea of innocence and false implication with ulterior motive, the appellants have no other defence. Not a single witness has been examined on their behalf to strenghthen their defence.

7. On the other hand, in order to prove the charges levelled against the accused-appellant, the prosecution has examined as many as 13 witnesses including the informant Dudhnath Tiwary as P.W.3, his father as P.W.1 Sudarshan Nath Tiwary, his uncle as P.W.2 Rambali Nath Tiwary, doctors who conducted postmortem as P.W.6, Dr. Ashok Kumar Choudhary, P.W.7 Dr. Rajendra Thakur and I.O. P.W.11 Krishna Kumar Diwakar. P.W.8 Munna Nath Tiwary is also said to be one of the eye witnesses of the occurrence. Other witnesses are either hostile or formal in nature.

8. The learned trial court on appreciation of oral as well as documentary evidence has rejected the plea of accused-appellants as innocent and has recorded the findings of guilt and has sentenced them in a manner said above.

9. Manifold assertions have been raised by the learned Counsel for the appellants to assail the findings of the learned trial court. However, main contention is that the fardbeyan in question is anti-dated anti-timed which contains false, concocted and distorted version of the occurrence in order to falsely implicate the accused-appellants. Host of other circumstances have also been pointed out in order to throw doubt on the genuiness and truthfulness of the prosecution story.

10. Before embarking upon the plea and contentions of the learned Counsel for the appellants, I would like to deal with the evidence of prosecution witnesses which have compelled the trial court to hold the accused-appellants as guilty. Apart from the informant P.W.3, there are three other witnesses who have claimed to be eye witnesses of the occurrence. They are P.Ws. 1, 2 and 8.

11. P.W.8 Munna Nath Tiwary is son of P.W.2, Rambali Nath Tiwary. He in his evidence before the court, has claimed himself as an eye witness of the occurrence. According to him at the time of the alleged occurrence, he was present in his field situated in the vicinity of the place of occurrence and was cutting grass. Not only it, he has also claimed that he chased the accused-appellants after the occurrence upto a considerable distance.

12. Fardbeyan is Ext.5. In fardbeyan, the informant has disclosed names of the eye witnesses, but not of this witness. P.W.2 Rambali Nath Tiwary, who is one of the eye witnesses of the occurrence and also father of this witness has not named this witness as eye witness. In cross-examination, paragraph-22, he has given name of the persons who were present, at the time of the occurrence but surprisingly, name of this witness does not find place. Similarly. P.W.1 who is uncle of this witness has not named this witness, vide paragraph-1 of his evidence, as eye witness of the occurrence. Apart from it, it also appears that in course of the investigation, statement of this witness was not recorded by the police. This fact is clear from evidence of I.O. (P.W.11) vide paragraph-9 as well as by his own admission vide paragraph-17 of his evidence.

13. Thus, from the above facts, it is quite clear that this witness (P.W.8) is not trustworthy. The learned Counsel for the State has also conceded that the presence of this witness at the place of occurrence at the time of the occurrence is highly doubtful and hence not reliable.

14. Two relatives of other deceased Dhiraj Prasad, have also been examined by the prosecution who are P.W.4 Sudama Devi (father's sister) and P.W.5 Jitan, (uncle). However, both of them have turned hostile. They have not supported the prosecution case on any material point. Therefore, their evidence is of no help to the prosecution.

15. However, apart from P.W.8 whose evidence has already been discussed above, three other witnesses have also claimed to be eye witnesses of the occurrence. They are P.Ws.1, 2 and 3. P.W.3, Dhrup Nath Tiwary is informant of the case and also father of the deceased Bhaskar Nath Tiwary, P.W.1, Sudarshan Nath Tiwary is own grand father of the deceased and P.W.2 Rambali Nath Tiwary is own uncle of P.W.3. In other words, they all are close relatives of deceased Bhaskar Nath Tiwary.

16. In ordinary situation, all the above three witnesses are deemed to be competent and natural witnesses on the point of occurrence. They are not supposed to falsely implicate innocent, persons. I do not propose to enter into details of their evidence as the learned Counsel for the accused-appellants has not based his submission on any contradiction or inconsistent statement of these witnesses. His main attack is on fardbeyan which, according to him is anti-timed anti-dated and contains concocted version of the occurrence which was prepared after due deliberation for the purpose of false implication of the accused-appellants. Therefore, in the above given situation, it would be suffixed to say that all the three witnesses have supported the prosecution story what has been set out and detailed in fardbeyan (Ext.5).

17. However, after hearing the submission of the learned Counsel for the appellants and going through the documents as well as facts and circumstances, I am compelled to find that this is one of the cases where the maxim ‘witnesses may lie but not the circumstances' comes in rescue of the accused-appellants.

18. The most formadable submission of the learned Counsel for the appellants is that on very face of the record the fardbeyan (Ext.5) appears to anti-timed, anti-dated which does not contain true and initial version of the occurrence. It has been prepared much belated after due deliberation which leaves much scope to infer that it contains concocted version in order to falsely implicate the accused-appellants.

19. Ext.5 is the fardbeyan lodged by P.W.3 Dhrup, Nath Tiwary and recorded by P.W.11 Krishna Kumar Diweakar. It shows that the occurrence took place on 28.12.2000 at 5.00 P.M. and the information about the occurrence was received in Majhagarh P.S. at 5.30 P.M. which is situated at a distance of 5 K.M. from the P.O. The fardbeyan was recorded at 6.00 P.M. in the same evening. It further goes to show that by that time one of the victims, namely, Dhiraj Prasad had already been shifted by his relations to Gopalganj for treatment but the other victim Bhaskar Nath Tiwary was still laying at the P.O., which is road.

20. The above facts go to show that prior to lodging of the fardbeyan in question the police had already also received information about the occurrence. P.W.11 is the I.O. of the case. Paragraph-14 of his cross-examination would go to show that the information received about the occurrence was entered in Station Diary, but this fact was not mentioned in case diary which ought to have been mentioned.

21. It is needless to say that the above information was first in point of time and, therefore, it was an important piece of document for the prosecution. It being contains the earliest version of the occurrence has its own importance for just decision of the case. The same has not been brought on the record. No explanation, worth the name, has been offered for non-production of the S.D. entry. It leaves much scope to draw adverse inference against the prosecution story.

22. There is another strong circumstance in this case which casts serious doubt on sacrosanct of the fardbeyan as Well as entire prosecution story. According to prosecution story, the occurrence took place at 5.00 P.M. and the police reached at the spot about 6.00 P.M. and recorded fardbeyan of P.W.3, which is Ext.5. It goes to show that it was recorded near the dead body of Bhaskar Nath Tiwary, but surprisingly, the police neither prepared inquest report of the dead body nor forwarded the same to hospital for postmortem. Ext. 7 is the inquest report of the dead body of Bhaskar Nath Tiwary. It goes to show that it was prepared on next day i.e. 29.12.2000 in the morning at 6 'O' Clock at the P.O. i.e. road.

23. P.W.11 is the I.O. of the case. Paragraph-7 of his evidence would go to show that the inquest report of Bhaskar Nath Tiwary was not prepared by him but by another police personnel namely, Pramod Kumar which was witnessed by P.Ws.1 and 2. This witness in cross-examination, paragraphs 19 and 20 has tried to explain the delay in preparation of inquest report. He has stated that due to night and darkness he could not prepare inquest report and deputed one Chaukidar near the dead body. However, he has failed to name that person as his name has not been mentioned in the case diary. No any Chaukidar has been examined by the prosecution on this point. Other important witness on this point namely Pramod Kumar who prepared the inquest report has also not been examined. I am afraid that with-holding the examination of Chaukidar and Pramod Kumar is serious laps on the part of the prosecution which creates serious doubt on the explanation of delay offered by P.W.11.

24. Section 174 Cr.P.C. mandates that the police immediately after receipt of the information about the occurrence has to proceed to the P.O., start investigation and prepare inquest report of the dead body. In murder case, inquest report is a document of vital importance and, therefore, the law expects its prompt preparation. Obviously, delay in preparation of inquest report leaves much scope for questioning of the F.I.R., its contents and time of its recording.

25. On this point, I would like to refer two decisions which have been reported in 1979 (1) Criminal Law Journal at pages 161 and 1159. In a decision reported in 1979(1) Cr.Law Journal page-161 (Banwari and Ors. v. State of Rajasthan) the Importance of prompt preparation of inquest report has been highlighted and in paragraph-11 of the judgment it has been held as follows:

Learned Counsel appearing on behalf of the accused-appellants placing reliance on Gurdeo Singh v. State (1963) 65 Pun LR 409 rightly urged that the inquest report is a document of vital importance and has to be prepared promptly because it has to be handed over to the doctor along with the dead body to be sent for post-mortem examination. If the facts about the occurrence are mentioned in the inquest report, it would go to show that by that time the true version of the occurrence had been given therein. If, however, the facts of the incident are not mentioned in the inquest report, the argument that till that time the investigating officer, who had prepared the inquest report, was not definite about the factual position cannot be deemed to be devoid of force.

Similarly, in another decision reported in 1979 (2) Criminal Law Journal page-1159 (Mahabir Singh and Anr. v. State), this question has been discussed and in paragraph-49 of the judgment it has been held as follows:

This is also an important and meaningful provision for a counter-check. If the dead body is sent for post-mortem examination within a reasonable time, it gives an assurance that the case was registered at the time alleged in the F.I.R. But if the inquest report is unreasonably delayed then begins the scope for questioning the genuineness of the F.I.R. both qua its contents and the time of its recording.

26. The inquest report of other victim, namely, Dhiraj Prasad is Ext.7/1. It was prepared in Sadar Hospital on 29.12.2000 by Pramod Kumar. Reason best known to the police Col. No. 1 of the inquest report, the date and time of examination of dead body, has been left vacant. However, cross-examination, paragraphs 25, 26 and 27 of the I.O. (P.W. 11), go to show that it was prepared much after preparation of inquest report of Bhaskar Nath Tiwary. Here also some questions of vital importance have been left un-answered. According to fardbeyan, before its lodging this victim was shifted to Gopalganj for treatment. This fact was well known to the I.O. Then why he did not attempt to visit the hospital and record the statement of the victim or his relation or even to issue requisition to the doctor for his treatment? The I.O. (P.W.11) has not uttered even a single word in his evidence to explain above important questions.

27. The learned Counsel for the appellants drew my attention towards vacant column of both inquest reports which Col.No. 6 and submits that non-mentioning of names of suspect clearly indicates that till that time police or the witnesses had no knowledge about the culprits and later on fardbeyan was fabricated showing the appellants as culprits.

28. Exts.7 & 7/1 are inquest reports of both the deceased. The format of the inquest report has been prescribed under Rule 199(b) of the Bihar Police Manual 1978. It contains 9 columns. The Col.No. 6 reads as follows:

Circumstances, if any which give rise to suspicion of foul play.

It means the police is required to mention circumstances with regard to commission of offence including the name of suspect if any. In both the inquest reports this column has been left vacant. It is important to mention here that Ext.7 has been prepared in presence of two eye witnesses of the occurrence, namely, P.W.1, Sudarshan Nath Tiwary and P.W.2, Rambali Nath Tiwary.

29. There are catena of decisions of apex courts ranging from 1975 till date including (AIR) 1975 Supreme Court page-1252 and 1324, AIR 1991 Supreme Court 1853 and AIR 2000 Supreme Court 2207 on object and scope of Section 174 Cr.P.C. Now the law is well settled that names of the assailants and manner of assault are not required to be mentioned in the inquest report and, therefore, failure to mention such things is not fatal for the prosecution. Thus, in view of above settled law no adverse inference of any nature can legally be withdrawn against the prosecution as urged by the learned Counsel for the appellants.

30. However, some questions with regard to inquest report are haunting in my mind which I would like to put to myself. Why Col.No. 6 has been prescribed in format of inquest report, if its answer is not required to be given? What prevented the police or the witnesses to disclose the names of the assailants under Col.No. 6 when they had knowledge about them at the time of preparation of the Inquest report? To my mind although the provisions of Section 174 Cr.P.C. does not require it to be mentioned but the intention of framers of the Police Manual is definitely otherwise. Therefore, though failure to mention the details under Col.No. 6 alone does not constitute a ground to throw away the prosecution case but it does emerge as a factor to be reckoned with while appreciating the entire evidence, facts and circumstances vis-a-vis submissions of the learned Counsel for the appellants.

31. There is another strong circumstance which not only cast doubt on sacrosanct of the fardbeyan but also on the credibility of eye witnesses who are father and grand father of the deceased Bhaskar Nath Tiwary.

32. According to the prosecution story the occurrence took place at 5.00 P.M. and the fardbeyan was lodged in the same evening at 6.00 P.M. One of the deceased/victim, namely, Dhiraj Prasad was shifted to Gopalganj for treatment but surprisingly no effort was made by the father (P.W.3) or other family members of the victim Bhaskar Nath Tiwary for his treatment. The natural conduct of the close relations of the victim would be to shift him, like Dhiraj Prasad, to Gopalganj for his treatment. It appears that even the victim was not brought to the house and he was left on the road for whole night. This is extremely un-natural conduct of the eye witnesses of the occurrence who are father and grand father of the victim. It only shows that till next morning they had no knowledge about the murder of Bhaskar Nath Tiwary and all formalities including lodging of the fardbeyan were actually done in the next morning and not earlier. The evidence of prosecution witnesses is apparently not based on true story rather they have deposed about a concocted and after thought story of the occurrence.

33. Hosts of other submission have also been urged by the learned Counsel for the appellants to show infirmities and inconsistencies in the prosecution case. One of it is shifting of place of occurrence and other is absence of mark of irrigation near the P.O. It is submitted that almost all the witnesses have stated that occurrence took place while the victim Bhaskar Nath Tiwary was standing near a drainage. However, the I.O. (P.W.11) did not find any drainage near the place where the dead body was found. It is further urged that almost all eye witnesses have stated that at the time of the occurrence they were irrigating field but the I.O. did not find any mark of irrigation near the P.O. or even any field in the vicinity of place of occurrence.

34. P.W.1 Sudarshan Nath Tiwary vide paragraph-1 of his evidence has stated that at the time of the occurrence work of irrigation was going on and the victim Bhaskar Nath Tiwary was standing near drainage. Similarly, P.W.2 Rambali Nath Tiwary also in his evidence, vide paragraph-3 has stated almost same thing. P.W.3, the informant in his evidence vide paragraphs 2 and 3 has also stated that at that time he along with other persons was irrigating field and the victim Bhaskar Nath Tiwary weas watching drainage.

35. However, the I.O. (P.W.11) Krishna Kumar Diwakar did not find either drainage or mark of irrigation near the place where the dead body was found laying. In paragraph-4 of his evidence, this witness has given detail topography of the place of occurrence where the dead body was found. The dead body was found on the road. There is no mentioning of any drainage near the P.O. Similarly, there is nothing in his evidence to show that he found any irrigated field near the P.O. On the other hand, paragraph-4 of his evidence would go to show that the place, where the dead body was found was bounded by houses of different persons and not by any vacant field.

36. Thus, taking into consideration of all the above infirmities inconsistencies as well as overall scanario of the prosecution case, I have no doubt in my mind that fardbeyan in question does not contain the initial and true version of the occurrence and it is not a genuine document. It was actually prepared and fabricated after due deliberation in collusion with I.O. of the case much later than the time and date mention in it. It is apparently anti-timed and anti-dated. The prosecution has not come with clean hand. The I.O. also did not investigate the case in a fair and legal manner.

37. Thus, the conviction of the accused-appellants on the basis of such a tainted and ingenuine fardbeyan is apparently not sustainable in the eye of law. It appears that the learned trial court has failed to notice above infirmities and improbabilities in the prosecution case and has wrongly convicted the accused-appellants on the basis of oral evidence without testing their veracity in the context of aforesaid infirmities and improbabilities.

38. Last but the important question which also requires to be answered in this case is reason or motive behind false implication of the accused-appellants. It is submitted by the learned Counsel for the State that for false implication of his close relation in such a heinous crime, there must be some strong motive or reason but in this case, there is complete absence of any motive on the part of the prosecution witnesses to falsely implicate the accused-appellants and, therefore, the prosecution story cannot be dis-believed lightly.

39. In this connection, I would like to rely on a decision of Patna High Court reported in 1990 (2) PLJR page-285 (The State of Bihar v. Mithilesh Rai). The decision is based on an apex court judgment. Relevant portion of paragraph-41 runs as follows:

41. The question may arise as to why the accused would be implicated if they have not done anything. In this connection I may refer some of the observations made by the Supreme Court in a case of Shankarlal Gyarasilal Dixit v. State of Maharashtra : 1981CriLJ325 which reads as follows:

Our judgment will raise a ligitimate querry: if the appellant was not present in his house on the material time, why they did so many people conspired to involve him falsely? The answer to such question is not always easy to give in criminal cases. Different motives operate on the mind of different persons in the making of unfounded accusations. Besides, human nature is too willing when faced with brutal crimes, to spin stories out of strong suspicions. In the instant case. ….

40. Thus, for the reasons stated above, I am of the opinion that the conviction and sentence of the accused-appellants is not sustainbale either in law or on facts. Accordingly, this appeal is allowed. The judgment and order of sentence in questions are hereby set aside. The accused-appellants are acquitted of the charges levelled against them and they are directed to be set at liberty forthwith if not wanted in any other case.