2011 Supreme(Pat) 860

HIGH COURT OF PATNA
SHYAM KISHORE SHARMA and MIHIR KUMAR JHA, JJ.
(29.4.2011)
Criminal Appeal (DB) Nos. 115, 174, 381, 635 of 2006
Chulhan Rai (in 115)
Bali Ram Rai (in 174) : Appellants
Jhullan Rai (in 381)
Anil Rai @ Anil Kumar
Rai (in 635)
Vs.
The State of Bihar : Respondent
(in all)

Headnote:Indian Penal Code, 1860–Section 302–Conduct of the Investigating officer in recording the F.I.R.–although the prosecution claiming that five persons said to be accompanying the deceased in the fateful night, were the eye witnesses, but no one except the informant is named as eye witness in the F.I.R.–informant though present from the inception of the occurrence till lodging of the fardbeyan, his fard beyan recorded as a last act on the date of occurrence–even when the Investigating Officer had received information of the murderous attack on the father of the informant on telephone for which Sanha entry was also recorded, he did not record the fardbeyan of informant till he prepared the inquest report–this abnormal conduct of the I.O. of not recording the Fard Beyan first has a direct bearing on the varacity of the version of the informant. (Para 9)

       Code of Criminal Procedure, 1973–Section 154–First Information Report in Cognizable Cases–the I.O. was already given information with regard to the incident at 8.30 PM but Fard Beyan was recorded at 11.45 P.M. after preparing the inquest report–one of the eye witnesses (PW.1) already given his statement to the police signed by another eye witness but no such written statement found on record–Fard Beyan in question on the basis of which the F.I.R. was recorded to be the actual first prosecution verson in terms of Sec. 154 Cr. P.C. cannot be accepted. (Para 14)

       Indian Penal Code, 1860–Section 302–Murder–Medical Evidence–three persons are said to have caused injuries on deceased by respective fire arm but the doctor conducting post-mortem examination found two fire arm injuries and one sharp cut would injury–presence of sharp cut injury on the deceased in the light of the consistent statement of P.Ws. of there being only three fire arm injuries on the deceased create a big dent on the varacity and correctness of alleged five eye-witnesses. (Para 15)

       Indian Penal Code, 1860–Section 302–Murder–no attempt made by the I.O. to make Station Diary entry as a part of his beginning point of investigation–no attempt made by the I.O. to inspect actual place of occurrence even when he had come to go there before recording the fard beyan–blood stained earth not seized by the I.O.–driver of the tempo in which the deceased with informant–driver of the tempo in which the deceased with informant and others were travelling before the occurrence examined–two pellets recovered by the doctor from the dead body and handed over to the police not sent for Ballistic examination–inquest report prepared without even recording of Fard Beyan–dead body was found in the Maruti Car but the driver or the owner of car not examined–these vital and crucial lapses on the part of I.O. weaken the prosecution version.

       Code of Criminal Procedure, 1973–Section 154–First Information Report–the importance of F.I.R. can definitely not be over emphasized but at the same time if the F.I.R. is preceded by a definite information, of a commission of a cognizable offence even though cryptic by way of telephonic information and is followed by preparation of inquest report with a definite information to the I.O. that the deceased was done to death by fire arm injuries by two of the P.Ws., the subs4quent Fard Beyan of informant drawn and its receipt in the court after more than 36 hours goes to show that the Fard Beyan on the basis of which the entire investigation was conducted was itself not fit to be relied–Conviction and sentence is not sustainable and set aside. (Para 19 & 21)

       1994 (5) SCC 188, AIR 2000 SC 2207–Referred to.