IMPORTANT POINT
Conduct of investigating agency - deprecated.

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. The appellants Sunil Kundu, Bablu Kundu, Nageshwar Sah and Hira Lal Yadav (‘A1-Sunil’, ‘A2-Bablu’, ‘A3-Nageshwar’ and ‘A4-Hiralal’, for convenience) were tried for offences punishable under Section 302 read with Section 34 and Section 201 read with Section 34 of the Indian Penal Code (for short, ‘the IPC’) and Section 27 of the Arms Act, 1959 (for short ‘the Arms Act’). The Sessions Court by its judgment and order dated 15- 17/09/2004 acquitted them of charges under Section 201 read with Section 34 of the IPC and Section 27 of the Arms Act. They were, however, convicted for offence punishable under Section 302 read with Section 34 of the IPC and sentenced to life imprisonment and to pay fine of Rs.5,000/- each. They carried appeals to the High Court of Jharkhand, Ranchi. The High Court confirmed their conviction and sentence. Hence, these appeals by special leave.

2. This case is a glaring example of how cause of justice can be defeated by inefficient, lackadaisical and incompetent investigating agency. As we go ahead, the reasons for these observations would be clear.

3. At the trial, the case of the prosecution, in short, was that on 29/01/1996 at about 5.00 p.m. deceased Suresh Yadav (for convenience, “the deceased”) reached near the shop of Bijan Kaur situated in Refugee Colony, Jamtara, Mihijam Pitch Road by a motorcycle driven by him. PW-3 Basudeo Mallick was sitting in the middle of the seat and PW-6 Narendra Yadav was sitting behind him. When they reached near the shop of Bijan Kaur, they saw A1-Sunil, A2-Bablu, A3-Nageshwar and A4-Hiralal standing there. The accused started pelting stones on them, resulting in imbalance of the motorcycle. The motorcycle fell down. All the accused attacked the deceased with knife and bhujali. They resorted to blank firing to scare the people. The deceased started running towards the southern side of the railway line but he collapsed in the field. PW-3 Basudeo Mallick was assaulted with an iron rod. PW-6 Narendra Yadav, who is an advocate by profession, somehow managed to escape. He ran to Mihijam Police Station and informed about the incident. Along with the police, he came to the scene of offence. They shifted the deceased to the Chittaranjan Railway Hospital. At the hospital, PW-6 Narendra Yadav’s statement was recorded by the investigating officer - PW-7 Girish Prasad Mishra. It was treated as FIR. On the basis of the FIR, investigation was conducted and upon completion of investigation the accused came to be charged as aforesaid.

4. In support of its case, the prosecution examined nine witnesses. The prosecution story rests on the evidence of PW-4 Shankar Yadav, PW-5 Jaldhari Yadav and PW-6 Narendra Yadav. The accused pleaded not guilty to the charge. They contended that they were falsely involved in this case out of previous enmity. They pleaded defence of alibi and examined 21 witnesses in support of their case. Their plea of alibi was rejected and they were convicted as aforesaid.

5. We will first begin with the FIR lodged by PW-6 Narendra Yadav because it is not consistent with the prosecution case which was developed in the court. According to PW-6 Narendra Yadav, on 29/1/1996, at about 5.00 p.m., the deceased reached near the shop of Bijan Kaur situated in Refugee Colony, Jamtara, Mihijam Pitch Road by a motorcycle driven by him. PW-3 Basudeo was sitting in the middle of the seat and he was sitting behind PW- 3 Basudeo. When they reached near the shop of Bijan Kaur, they saw A1- Sunil, A2-Bablu, A3-Nageshwar and A4-Hiralal standing there. The accused started pelting stones on them, resulting in imbalance of the motorcycle. A2-Bablu gave a blow with rod and the motorcycle fell down. Thereafter, A1- Sunil fired at the deceased and the deceased got injured. A3-Nageshwar stabbed the deceased with knife all over his body. A4-Hiralal fired at the deceased with a pistol and injured him. They also assaulted PW-3 Basudeo Mallik with an iron r