2020 Supreme(Pat) 335

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, ARVIND SRIVASTAVA, JJ.
Keshwar Singh, son of Late Ganesh Singh - Appellant
Versus
The State of Bihar - Respondent
CRIMINAL APPEAL (DB) No.681 of 2012
With
CRIMINAL APPEAL (DB) No. 832 of 2012
Decided On : 13-02-2020

Headnote:

Indian Penal Code, 1860 – Sections 302/34 – Arms Act, 1959 – Section 27 – Murder – Common intention – Life sentence – Prosecution has not been able to explain circumstance under which PW-3 became a witness to fardbeyan and inquest report which were prepared even before he reached at place of occurrence – It gives an impression that fardbeyan and inquest report are creatures of afterthought – In inquest report though it is stated that murder has been caused due to gunshot injury, column meant for noting circumstances and manner in which offence was committed has been left blank – There is also no explanation as to why FIR was belatedly registered – Investigating Officer has admitted that he had not drawn sketch map of scene of offence – In a case of murder sketch map is drawn and exhibited to show true depiction of scene of offence – Presence of PWs at the time and place of occurrence is highly doubtful – Medical opinion is totally inconsistent with ocular testimony of witnesses examined during trial – Investigation has been conducted by Investigating Officer in a perfunctory manner – Impugned judgment of conviction and order of sentence set aside and appellants acquitted from charges. (Paras 43, 44, 53, 56, 73, 76, 84, 85 and 86)

Criminal Procedure Code, 1973 – Sections 154 and 162 – FIR – Ordinarily, in terms of Section 154 of Cr.P.C., when a report is received relating to a cognizable offence, FIR should be lodged – However, when a cryptic or anonymous complaint is received, it is not necessary to institute FIR and start investigation – In such case, police officer may for good reasons carry out a preliminary inquiry to find out truth or otherwise of allegations contained therein – However, in such case also, police officer receiving information is required to make entry in station diary about information received – Police officer would also be required to note time of receipt of such information and time at which he has proceeded from police station to enquire about veracity of such complaint – A wireless message or a telephonic information to investigating officer which is cryptic in nature may not be treated as FIR and subsequent information, be it oral or written may be treated as FIR and would not be hit by Section 162 of Cr.P.C. – However, not recording a report regarding a cognizable offence even if it is cryptic in station diary and not producing the same before court without any proper explanation would certainly create a dent in prosecution case – Under such circumstance, it would be difficult to accept that information first received was cryptic and was not in nature of FIR – FIR is not a substantive piece of evidence and can only be used to corroborate statement of informant under Section 157 or to contradict it under Section 145 of Evidence Act – However, when FIR is clouded with suspicion as it is product of undue deliberation and consultation then, it loses its corroboration value. (Paras 47, 50, 51 and 52)

Criminal Procedure Code, 1973 – Section 173 – Crime investigation – Only defective investigation cannot be a sole ground to reject prosecution case if stands proved on the basis of direct evidence on record – In spite of deficiencies and lapses in investigation by Investigating Officer, it would not be proper to throw out prosecution case – However, it would be desirable that evidence adduced during trial be scrutinized independently. (Paras 53 and 63)

Criminal Law – Appreciation of evidence – Evidence of a witness who is related to deceased is not to be discarded in all cases – A related witness may not necessarily be an interested witness – Testimony of a witness who is related to deceased or is an interested witness should be considered by court with care and caution in order to exclude possibility of false implication – Evidence of an interested witness cannot be presumed to be tainted as a matter of rule – Court has to consider whether testimony of such a witness is creditworthy after closely scrutinizing and appreciating evidence on record – On a consideration of testimony, if same is wholly reliable, cogent, credible and trustworthy, it can be relied upon. (Para 66)

Indian Evidence Act, 1872 – Section 45 – Criminal Procedure Code, 1973 – Section 293 – Expert opinion – Expert evidence is normally taken with a greater sense of acceptability – However, courts are not absolutely guided by report of experts especially if such reports are perfunctory, unsustainable and are result of deliberate attempt to misdirect prosecution – In a given case, where eye witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibility may not be accepted as conclusive – Oral evidence has primacy over medical evidence – If oral testimony of witness found reliable, creditworthy and inspires confidence, oral evidence has to be believed and same cannot be rejected on hypothetical medical evidence – But, if oral evidence is clouded with doubt and is not found wholly reliable, creditworthy and inspires confidence and medical evidence completely rules out prosecution story, recording judgment of conviction would be highly unsafe. (Paras 79, 80 and 81)