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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH and ARVIND SRIVASTAVA, J.
Criminal Appeal (DB) No.1482 of 2019
(20.9.2021)
Gaurav Kumar Rai @ Shubham ... Appellant
vs.
State of Bihar ... Respondent
Indian Penal Code, 1860 – Section 302 – Arms Act, 1959 – Section 27(1) – Murder – Life sentence – Court would draw an adverse inference against prosecution for suppressing Sanha from court – FIR has belatedly been instituted after due deliberations and consultations and same is fatal to prosecution case – There are other glaring loopholes in prosecution case – Recovery of blood-stained shirt and cartridge was not true – They were not produced before Court – Forensic examination of empty cartridge or its matching with bullet recovered from body of deceased was not carried – Chemical examination of blood-stained shirt was not done – Sketch map of place of occurrence was not prepared – Prosecution has also failed to prove place of occurrence – Means of identification was not proved, as torch was not seized by police – Since incident took place when it was a dark night and there was no electricity, prosecution witnesses could not have seen occurrence as place of occurrence was 20 metres away from house of deceased – Independent witnesses though present were not examined by prosecution – Non-examination of independent witnesses, who were available, in facts and circumstances of present case would lead to an adverse inference under Section 114(g) of Evidence Act – Evidence of eye-witnesses examined on behalf of prosecution raises serious doubt on their presence at the time of actual occurrence – Equal weightage should have been given to defence witnesses as that of prosecution witnesses – There was no reason for Trial Court not to have given due weightage to their testimony while deciding the case – Investigation is grossly defective – Eye-witnesses are not reliable and their presence is doubtful – Prosecution has miserably failed to prove its case beyond reasonable doubt against appellant – Impugned judgment of conviction and order of sentence set aside. (Paras 43, 47, 50, 51, 52, 54, 57, 58, 59, 63, 64 and 65)
Criminal Procedure Code, 1973 – Section 154 – In a criminal case, FIR is an important document even though it is not a substantive piece of evidence – Prompt FIR lends credence to prosecution version and often prevents possibility of a coloured version being put by informant – Section 154 contained in Chapter XII of Cr.P.C deals with information to police and their powers to investigate – Cr.P.C classifies offences in two categories, namely, (a) cognizable offence and (b) non-cognizable offence – Registration of FIR is mandatory under Section 154 of Cr.P.C if information discloses commission of a cognizable offence. (Para 42)
Ashwani Kumar Singh, J.—This appeal is directed against the judgment of conviction dated 26.10.2019 and the order of sentence dated 05.11.2019 passed by the learned Additional District & Sessions Judge-I, Rosera, Samastipur in Sessions Trial No. 172 of 2014 arising out of Vibhutipur P.S. Case No. 115 of 2013 whereby and whereunder the sole appellant has been convicted under Section 302 of the Indian Penal Code (for short ‘IPC’) and Section 27(1) of the Arms Act. He has been sentenced to undergo imprisonment for life and a fine of Rs.10,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of six months under Section 302 IPC and rigorous imprisonment for three years and to pay a fine of Rs.3,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of three months under Section 27(1) of the Arms Act. Both the sentences have been ordered to run concurrently.
2. The prosecution case was launched based on the fardbeyan of the father of the deceased Ram Dev Das, which was recorded by the Assistant Sub-Inspector of Police of Pirbahore Police Station A.P. Yadav at PMCH, Patna at 01:00 PM on 27.05.2013. In his fardbeyan, the informant has stated that on 26.05.2013 while his son Arun Das was sleeping in his house after taking dinner, at about 11:00 PM, his co-villager Gaurav Kumar Rai @ Shubham (appellant) came at his door and called out his son Arun Das. When his son came out of his doorstep, the appellant fired at him causing injury in his head as a result of which he fell on the ground. The incident was witnessed by his daughters-in-law Manju Devi and Sunita Devi. The informant has further stated that the injured Arun Das was then taken to Sadar Hospital, Samastipur where he was treated and was then taken to PMCH, Patna where he died while undergoing treatment at around 05:00 AM. The fardbeyan was signed by the informant Ram Dev Das and his daughters-in-law Manju Devi and Sunita Devi.
3. Since the offence was committed within the jurisdiction of Vibhutipur Police Station in the district of Samastipur, the Assistant Sub-Inspector of Police, Pirbahore Police Station, who had recorded the fardbeyan, forwarded the same to the S.H.O., Vibhutipur Police Station, Samastipur through the S.H.O., Pirbahore Police Station, Patna for registration of the first information report (for short ‘FIR’) and investigation.
4. On receipt of the fardbeyan dated 27.05.2013, the S.H.O., Vibhutipur Police Station registered Vibhutipur P.S. Case No. 115 of 2013 dated 28.05.2013 under Section 302 of the IPC and Section 27 of the Arms Act and handed over the investigation of the case to Rajeev Kumar Azad, a Sub-Inspector of Police. The Investigating Officer (for short ‘I.O.’) inspected the place of occurrence, recorded the statements of the witnesses, arrested the appellant and on completion of investigation submitted a charge sheet under Sections 302/34 of the IPC and 27 of the Arms Act against him before the court vide charge-sheet no. 42/14 dated 28.08.2019 and kept the investigation pending in respect of involvement of other accused persons in the offence. Subsequently, a supplementary charge-sheet was submitted before the court of jurisdictional Magistrate against one Yashwant Singh.
5. The learned Magistrate took cognizance of the offence and after complying with the requirements of Section 207 of the Code of Criminal Procedure (for short ‘Cr.P.C’) committed the case to the court of sessions for trial.
6. The Sessions Court (hereinafter referred to as the ‘Trial Court’) framed charges under Sections 302/34 of the IPC and 27(1) of the Arms Act against the appellant and Yashwant Singh to which they pleaded not guilty and claimed to be tried.
7. The prosecution in order to bring home the charges examined altogether seven witnesses. They are Manju Devi (P.W.1), wife of the deceased and
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