State of Bihar vs Md. Irshad, S/o. Late Abdul Aziz

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Pat) 167

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, RAJEEV RANJAN PRASAD, JJ.
The State of Bihar & Ors. - Petitioners
Versus
Md. Irshad, S/o. Late Abdul Aziz & Ors. - Respondents
Death Reference No. 2 of 2021 with Criminal Appeal (DB) No. 1500 of 2019 with Criminal Appeal (DB) No. 1504 of 2019 with Criminal Appeal (DB) No. 1517 of 2019
Decided On : 07-04-2022

Advocates Appeared:
For the Petitioner:Mr. Rajesh Kumar Singh, Senior Advocate, Mr. Manish Kumar Singh, Mr. Dharmendra Kumar Singh.
For the Respondents: Mr. Santosh Kumar, Amicus Curiae, Mr. Dilip Kumar Sinha, APP, Mr. Abhimanyu Sharma, APP, Dr. Mayanand Jha, APP.
For the Informant : Mr. Sushil Kumar Singh.

Headnote:
Indian Penal Code, 1860 – Section 302 read with Sections 149 and 148 – Arms Act, 1959 – Section 27 – Murder and rioting – Common object of unlawful assembly – Death sentence – Court cannot proceed with presumption that related witnesses examined in the case are untruthful witnesses – However, Court cannot ignore fact that admittedly parties were on inimical terms and there was series of litigation between them – Under such circumstance, there may not be any reason for prosecution to shield actual culprits but, there may be a situation where a blind murder could have taken place and due to previous enmity, accused persons might have been implicated in the case – Inordinate and unexplained delay was caused in lodging FIR, which creates serious doubt about veracity of prosecution case – There is no document showing treatment provided to deceased – Medico legal documents are required to be prepared urgently with utmost care – In absence of medico legal evidence and in absence of examination of doctors of different hospitals, it is difficult to believe story of prosecution that injured was taken to various hospitals for treatment – Post-mortem examination was conducted on body of deceased much prior to institution of FIR--A major part of investigation has been conducted by police even prior to institution of FIR – Institution of FIR much after preparation of inquest report and autopsy on body of deceased gives rise to presumption that same was instituted after due deliberations and consultation – Impugned judgment of conviction and order of sentence set aside and Death Reference rejected. (Paras 56, 61, 63, 64, 65, 68, 71, 91 and 93)
Criminal Law – Appreciation of evidence – A related witness cannot be termed as an interested witness under all circumstances – A related witness can also be a natural witness – If an offence is committed within precincts of deceased, presence of family members cannot be ruled out, as they assume position of natural witnesses – In case, their evidence is reliable, cogent and clear, prosecution case cannot be doubted – However, a related witness would become an interested witness when his evidence is tainted and it shows that he is desirous of implicating accused by fabricating and concocted evidence – Court is required that evidence of an eye-witness who is a near relative of victim should be closely scrutinized but, no corroboration is necessary for acceptance of his evidence. (Para 54)
Criminal Law – Appreciation of evidence – Mere non-examination of witness in itself would not vitiate prosecution case – Onus of proving prosecution case rest on prosecution and prosecution has complete liberty to choose its witness to prove the case – However, if a material witness is withheld, Court may draw an adverse inference against prosecution but, it is not the law that omission to examine every witness even on minor point would create a doubt. (Para 58)
Criminal Procedure Code, 1973 – Section 154 – FIR is an important document even though it is not a substantive piece of evidence – A prompt FIR prevents possibility of coloured version being put by informant – There is no hard and fast rule that delay in lodging FIR would automatically render prosecution case doubtful – However, delay has effect of putting Court on its guard to search if any explanation has been offered for delay, and if offered, whether it is satisfactory or not. (Paras 69 and 75)
Criminal Procedure Code, 1973 – Section 173 – As a general principle, it can be stated that error, illegality or defect in investigation cannot have any impact unless miscarriage of justice brought about or serious prejudice is caused to accused--If prosecution case is established by evidence adduced, any failure or omission on part of Investigating Officer cannot render case of prosecution doubtful. (Para 81)

JUDGMENT :

Ashwani Kumar Singh, J.

These three appeals arise out of a common judgment of conviction dated 06.11.2019 and the order of sentence dated 16.11.2019 passed by the learned 2nd Additional Sessions Judge, Araria (hereinafter referred to as the ‘Trial Court’) in Sessions Trial No.371 of 2014/Tr. No.19 of 2019 arising out of Narpatganj P.S. Case No.348 of 2013.

2. By the impugned judgment of conviction dated 06.11.2019, the Trial Court has convicted the appellants of these three appeals under Sections 302 read with 149 and 148 of the Indian Penal Code (for short ‘IPC’) as well as Section 27 of the Arms Act.

3. By the impugned order of sentence dated 16.11.2019, convicts, namely, Md. Irshad, Md. Tabrej and Md. Dilshad (appellants in Cr. Appeal (DB) No.1517 of 2019) have been awarded death sentence under Section 302 read with 149 of the IPC and three years and a fine of Rs.5,000/- for each of the offences under Section 148 IPC and Section 27 of the Arms Act and in default of payment of fine to undergo further imprisonment for three months for each of the offences. Further, the convicts, namely, Md. Kari, Md. Zahir, Sahe Kamal @ Sahe Kamal @ Sahe Kalam, Shamshenoor @ Md. Shamshenoor and Md. Hasib (appellants in Cr. Appeal (DB) No.1500 of 2019), Md. Tajuddin and Md. Farukh @ Faruk (appellants in Cr. Appeal (DB) No.1504 of 2019) have been sentenced to undergo rigorous imprisonment for life under Section 302 read with 149 of the IPC and to pay a fine of Rs.50,000/- and in default of payment of fine to undergo further imprisonment for three months for each of the offences.

4. The death sentence awarded by the Trial Court is subject to confirmation by the High Court. The reference made by the Trial Court under Section 366 of the Code of Criminal Procedure (for short ‘CrPC’) has been registered as Death Reference No.2 of 2021.

5. Since the appeals and the reference arise out of a common judgment of conviction and order of sentence, they have been heard together and are being disposed of by a common judgment.

6. The prosecution case as alleged by Md. Shamshad (P.W.4) in his oral statement at his doorsteps at 2:00 pm on 09.12.2013, which was reduced into writing by Krishna Kumar Jha, SHO of Narpatganj Police Station, District-Araria is that on 08.12.2013 at about 4:30 pm, Md. Irshad began to abuse his father for no reason. He and his brother Waheed tried to mollify Irshad upon which, Irshad raised hulla and called other accused persons, namely, Md. Shamshenoor, Md. Tabrej, Md. Moshim, Md. Dilshad, Md. Sikandar, Md. Sajjid, Md. Sahe Kamal, Md. Hashib, Md. Zahir, Md. Kari, Md. Tajuddin, Md. Sarfaraz, Md. Farukh, Md. Matin, Md. Kamrul and Md. Akil. All of them being variously armed with guns and pistols immediately reached at the place of occurrence. Out of them, Md. Tabrej, Md. Hasib, Md. Kamrul and Md. Sarfaraz started firing indiscriminately. Md. Moshim fired shot with his gun aiming at Waheed which hit in his stomach and he fell down on the road. He was taken by him and his family members for treatment; firstly, to Forbesganj, then to Purnea and, thereafter, to Siliguri. On way to Siliguri, Waheed died. He further stated that earlier also, the accused persons had killed his cousin sister Husruaba for which Narpatganj P.S. Case No.126 of 2012 dated 30.05.2012 was registered under Sections 147, 148, 149, 341, 342, 323, 324, 325, 307 and 302 of the IPC and Section 27 of the Arms Act. In the said case, altogether seventeen accused were charge-sheeted. Out of whom, nine are accused in the present case. He stated that his younger brother Md. Waheed was killed by Md. Moshim and his oral statement was being recorded after the post-mortem examination on the body of the deceased Md. Waheed was conducted at the Sadar Hospital.

7. On the basis of the aforesaid statement of the informant, Narpatganj P.S. Case No.348 of the 2013 dated 09.12.2013 was registered under Sections 147, 148, 149, 302, 504 and 506 of the IPC and Section 27 of the Arms Act at 4