Rajesh Kumar Singh and Another vs The State of Bihar

Rekha Kumari, J.—These three appeals are directed against the judgment dated 21.2.2002 passed by Sri Jamilur Rahman, 2nd Additional Sessions Judge, Patna in Sessions Trial No. 716 of 2000 by which he has convicted the appellants Santoo Singh and Ranjan Kumar Singh @ Rajan Singh u/s 302 of the Indian Penal Code and Section 27 of the Arms Act and appellants Rajesh Kumar Singh and Chandan Kumar Singh u/s 302/149 of the Indian Penal Code and Section 27 of the Arms Act and has sentenced all the appellants to undergo imprisonment for life and also to pay a fine of Rs. 5000/- each and further sentenced them to undergo rigorous imprisonment for three years u/s 27 of the Arms Act with a direction that the substantive sentence would run concurrently. As all these three appeals arise out of the same Sessions Case, they have been heard together and are being disposed of by this common judgment.

The prosecution case, as disclosed from the Fardbeyan of the informant Chandra Mohan Pandey is that on 27.7.1999 he was returning to his village Lakhanpur, P.S. Punpun district Patna alongwith his brother Dhirendra Pandey (deceased) and his wife after purchasing house hold articles from Punpun Bazar. At about 6.00 P.M. when they were crossing the school situated west of their village, Dhirendra Pandey was moving ahead of them and at that time all on a sudden appellants Santu Singh, Ranjan Kumar Singh, Chandan Kumar Singh, Rajesh Kumar Singh and one Ajay Kumar Singh, all armed with Pistols, accused Bhupendra Kumar Singh and Arjun Singh belonging to village Lakhanpur arrived there and appellants Chandan Kumar Singh, Rajesh Kumar Singh and co-accused Ajay Kumar Singh caught hold of Dhirendra Pandey and co-accused Bhupendra Singh and Arjun Singh exhorted to kill him. Appellant Santu Singh fired with his Pistol on Dhirendra Pandey on his head, Appellant Ranjan Kumar Singh also fired on his head. Dhirendra Pandey fell down and appellant Santu Singh again fired on the axillary region. The informant and the deceased''s wife shouted for help when accused Arjun Singh pushed him down and accused Bhupendra Singh pushed down the wife of his brother. The witnesses rushed and the appellants and other accused persons fled away. It is further said that the informant then with the help of other witnesses was carrying the injured to Punpun when they met the police of Punpun on the way and with their help, they took the injured to the Emergency-ward of the P.M.C.H., Patna where he was declared dead.

The reason behind the occurrence, as stated in the Fardbeyan, is that appellant Santu Singh wanted to take contract of earth work of the village which, however, was allotted to deceased Dhirendra Pandey and so appellant Santu Singh alongwith others caused the murder.

On the same night at 9,10 P.M. the Fardbeyan (Ext. 4) of the informant was recorded by S.I. Jai Narayan Prasad, the then Officer-in-charge of Punpun police station at the Emergency-ward of P.M.C.H., Patna. On the basis of the Fadbeyan, a formal F.I.R. was drawn up. The police investigated the case and after completing investigation submitted charge-sheet against the appellants and co-accused Aditya Singh and the investigation against other co-accused continued.

Appellants Santu Singh and Ranjan Kumar Singh were charged u/s 302 of the Indian Penal Code and Section 27 of the Arms Act and all the appellants and co-accused Aditya Singh @ Munna Singh were charged u/s 302/149 of the Indian Penal Code and Section 27 of the Arms Act. They pleaded not guilty to the charges. Their defence as gathered from the suggestions given to the P.Ws. is that the deceased was a Commander of I.P.F. and had committed several murders and he was murdered by some other persons and the appellants were falsely implicated.

The prosecution, in order to substantiate the charges, examined altogether eight witnesses. Out of them P.W.1 Suresh Shankar Pandey is a hearsay witness. P.W. 2 Awanish Kumar Pandey is also a hearsay witness, P.W. 3 Amar Nath Pandey, P.W. 4 Niranjana Pandey, wife of the deceased, P.W. 6 Chandra Mohan Pandey (informant) are the eye witnesses to the occurrence. P.W.5 is Dr. Ashok Kumar Yadav, who had conducted the post mortem examination on the dead body of the deceased. P.W. 7 is Dharmnath Pandey who had seen the appellants fleeing away from the place of occurrence. P.W. 8 is Jai Narayan Prasad, S.I., who was the I.O. of the case.

The appellants did not examine any witness. They have, however, proved the first order-sheet of the court of the Sub-divisional Judicial Magistrate (Ext. A) to show that the F.I.R. of this case was received by the Magistrate on 29.7.1999. They have also proved the F.I.R. (Ext. B) of Punpun P.S. Case No. 39/89 under sections 341, 307, 324/34 of the Indian Penal Code and Section 27 of the Arms Act filed against the deceased and others and some other F.I.Rs. in support of their case.

The learned trial court after considering the evidence of the above witnesses and the documents filed by the appellants convicted the appellants and sentenced them as mentioned above and acquitted accused Aditya Singh.

The main thrust of the argument of the learned counsel for the appellants is that there is no eye witness to the occurrence and that the informant by bringing the police in collusion falsely implicated the appellants by ante dating the Fardbeyan and the F.I.R.

P.W. 1 has stated that on the date of occurrence he was at Bokaro and on that date at 8.00 P.M. on telephone he learnt about the murder of the deceased and then he came to his house and from his brother Chandra Mohan Pandey, he learned about the occurrence. The evidence of this witness, hence, is of no importance to prove the occurrence.

In order to appreciate the submissions of the learned counsel, I have gone through the entire evidence.

P.W. 2 has stated that on 27.7.1999 at 6.30 P.M. he was in his house when he heard sound of firing and went near the poultry farm and saw accused Aditya Singh with gun and thereafter he went near Lakhanpura and there he saw his uncle lying besmeared with blood and his aunt had also fallen down and weeping and from his aunt he learnt that the appellants and other co-accused had fired on his uncle. He has further stated that they took his aunt to P.M.C.H., Patna via Punpun and at P.M.C.H. he was declared dead. He has also stated that in his presence the police prepared the inquest report of the dead body of his uncle and he put his signature (Ext. 1) on it.

Though this witness has stated that his aunt had given to him the names of the appellants and other accused as assailants of the deceased, the evidence of the I.O. (P.W. 8) also shows that this witness did not state before him that his aunt told him that the appellants and other co-accused had fired on the deceased. Therefore, the evidence of this witness is of no avail to the prosecution to prove the complicity of the appellants in the alleged murder.

P.W. 7 has stated that on the alleged date at 6.30 P.M. he was returning after seeing his field when he heard the sound of firing and saw seven persons fleeing towards south from the school. He has named the appellants and other co-accused as the persons who were fleeing. But this witness in cross-examination has stated that he was examined by the I.O. after 18 days of the occurrence. He has admitted that he was in his house from the date of occurrence till his statement was recorded but no explanation has been given by the prosecution as to why he was not examined by the I.O. earlier. Hence, on account of that delay in examining the witnesses, I think no reliance can be placed on him. So the evidence of this witness is also of no consequence in proving the charges of the appellants.

Among the remaining witnesses, P.W. 6, the informant has deposed that on 27.7.1999 at 6.30 P.M. he was returning from Punpun market. His brother Dhirendra Pandey (deceased) and Niranjana Pandey, wife of the deceased, were also with him. When they were crossing Lakhanpur School his brother was ahead of him. At that time all on a sudden appellants Santu Singh, Ranjan Singh, Chandan Kumar Singh, Rajesh Kumar Singh and other co-accused came from the side of the school among whom the appellants Santu Singh, Ranjan Kumar Singh, Chandan Singh, Rajesh Kumar Singh and co-accused Ajay Kumar were armed with Pistols. Appellants Chandan Singh, Rajesh Kumar Singh and Ajay Kumar Singh caught hold of Dhirendra Pandey and co-accused Bhupendra Pandey and Arjun Kumar Singh ordered to kill, whereupon appellant Santu Singh fired on Dhirendra Pandey on his head. Appellant Ranjan Kumar Singh also fired with his Pistol on his head. Dhirendra Pandey fell down. Again appellant Santu Singh fired on the axillary region. He (informant) and Niranjana (wife of the deceased) raised alarm and tried to save Dhirendra Pandey when co-accused Arjun Singh pushed him down and co-accused Bhupendra Pandey pushed Niranjana down. The witnesses arrived and the appellants and others fled towards south. He went near Dhirendra Pandey. He (deceased) was alive at that time. He then with the help of others carried Dhirendra Pandey on a cot for treatment. On the way they met the Punpun Police and along with him they went to P.M.C.H., where Dhirendra Pandey was declared dead. The witness has further stated that at P.M.C.H. he gave statement before the S.I. of Punpun police station and the S.I. recorded it and he put his signature (Ext. 2/1) on it.

This witness has further stated that appellant Santu Singh wanted to take contract of earth work but the same was given to the deceased and so the appellants had enmity with the deceased.

P.W. 4, the wife of the deceased, has stated that on the alleged date at 6.30 P.M. she was returning with her husband''s elder brother Chandra Mohan Pandey from Punpun market and on the way when they were crossing Lakhanpur School, the appellants and co-accused (the witness names them) emerged from the side of the school and surrounded and caught hold of her husband. Appellants Santu Singh, Ranjan Singh, Chandan Singh, Rajesh Kumar Singh and co-accused Ajay Kumar Singh were armed with Pistol. Co-accused Arjun Kumar and Bhupendra Pandey ordered to kill and appellant Santu Singh fired on the head of her husband. Appellant Ranjan Singh also fired on his head. Her husband fell down and then appellant Santu Singh again fired on the axillary region. She and Chandra Mohan Pandey wanted to save her husband but Bhupendra Pandey pushed her down and Arjun Singh pushed her Bhaisur down and then they fled away. Her husband then was carried on a cot to P.M.C.H. where he was declared dead. In cross-examination she has stated that after the occurrence she returned to her house. Her village was at a distance of 300-400 yards from the school. Her husband was doing the work of contract from 5-6 years before the occurrence. He had constructed two school buildings and road and had also taken contract of earth work.

P.W. 3 has deposed that on 27.7.1999 at 6.30 P.M. he was going to call labourers and when he was about 20 yards east of the school, he saw appellants Santu Singh, Ranjan Singh, Rajesh Kumar Singh, Chandan Singh and co-accused Arjun Singh, Bhupendra Pandey and Ajay Kumar coming out of the school side. At that time Dhirendra Pandey was returning from market side and his wife and brother Chandra Mohan Pandey was with him. He saw the appellants and other co-accused Dhirendra Pandey and then he heard the sound of three shots and then he saw that the culprits fled and further saw deceased Dhirendra Pandey fallen on the ground. Chandra Mohan Pandey raised alarm and he went there and saw Dhirendra Pandey injured with firearm injuries. The injured was still alive. So, they carried him on a cot and was going to Punpun when on the way they met the S.I. of Punpun Police Station. The injured was then taken to P.M.C.H. where he was declared dead. He has stated that the informant gave his statement at the P.M.C.H. and the Fardbeyan was recorded. He also put his signature (Ext.2) on it.

Thus, from the evidence of P.Ws. 4 and 6 it appears that they have fully supported the prosecution case as made out in the Fardbeyan. As regards P.W. 3 though he did not see the manner in which the deceased was shot at, his evidence shows that he had seen the appellants coming out from the school side and catching hold of the deceased and he heard then sounds of firing and saw that the appellants fled away and soon thereafter saw the deceased injured with firearm injuries. Therefore, his evidence also supports the prosecution case that deceased Dhirendra Pandey was murdered at the hands of the appellants and other co-accused at the alleged place and time.

P.W. 5, the doctor, has deposed that on 28.7.1999 at 11.00 A.M. he had conducted the post mortem examination on the dead body of the deceased Dhirendra Pandey at P.M.C.H. mortuary and found the following injuries:--

(i) One injury 1/2" diameter wound of entry with grease and abraided collar was found on right lateral side of chest, nine inch below the right arm pit. The wound was directed to left side of the chest superficially with half inch diameter, wound of exit was found, 4.5" left to the wound of exit.

(ii) One wound of entry 3/4" diameter, surrounded by 2" diameter tattoo mark was found at the right side of the head five inch behind the right ear. The wound directed forward with wound of exit 3/4" diameter was found above the right ear.

(iii) One wound of entry 3/4" diameter surrounded by 5" inch diameter, tattoo mark was found half inch above the right ear. The wound directed into the skull cavity to the left side.

He has further deposed that after removal of the skin underline blood clots and fracture of occipital right parietal and both temporal bones. After opening the caranial cavity the brain was found lacerated and infiltrated with blood and blood clot and the bullet was found left side of the brain in the left temporal bone and collected sealed and handed over to the constable.

He has opined that the above injuries were ante mortem and caused by firearm and the cause of death was congestion, haemorrhage and shock and the time elapsed since death was within 12 to 14 hours from the post mortem examination. He has further stated that the injuries were sufficient in ordinary course to cause death.

P.W. 8, the I.O. has deposed that on 27.8.1999 he was posted as Officer-in-charge of Punpun police station and on that day he received a telephonic message that Dhirendra Pandey has been shot at and on this information he made S.D. Entry No. 535 and set out for the place of occurrence and on the way to village Lakhanpura he saw injured Dhirendra Pandey being carried by his family on a cot and in order to save the life of the injured, he accompanied the family members and on a maxi brought the injured to P.M.C.H., Patna and in the meantime sent the S.I. Barhan Ram and the police force who had come with him to the place of occurrence for apprehending the culprits. He has further stated that when they reached the Emergency-ward of P.M.C.H., the doctor declared the injured dead. He then at the emergency-ward recorded the Fardbeyan (Ext. 4) of the informant and then recorded the further statement of the informant and statement of Amar Nath Pandey and returned to the police station and registered the case. He has proved his signature (Ext. 2/2) on the formal F.I.R. His evidence then is that on the same night he reached the place of occurrence at 2.00 P.M. and found blood, fired cartridges, chappal and spectacles at the P.O. but as it became late in the night, he inspected the place of occurrence again in the morning. He has further stated that in the night itself he searched for the accused persons and found them absconding. He has further stated that on 28.7.1999 at 6.00 A.M. he inspected the place of occurrence. The P.O. was a road running east-west from Punpun to Lakhanpur adjacent south of Lakhanpur Primary School situated about 500 yards from village Lakhanpur. He found blood, fired cartridges, a pair of plastic chappal and an old spectacles and, therefore, seized them and prepared seizure list in presence of Paras Singh and Jang Bahadur Singh and after recording the statements of other witnesses, submitted charge-sheet.

Thus, from the evidence of P.Ws. 1, 3, 4 and 6 it appears that there are eye witnesses to the occurrence and they have corroborated each other and have supported the present case and their evidence finds full corroboration from the evidence of the doctor and the objective findings of the I.O.

Among the above eye witnesses, P.W. 6 though is the informant and as such an interested witness, he was accompanying the deceased. Therefore, he is a very competent witness. There is absolutely nothing in his evidence to show that he had any enmity with the appellants. Therefore, there is no reason why he would depose falsely against them. The Fardbeyan (Ext. 4) shows that it fully corroborates the testimony of this witness. The Fardbeyan was recorded on the same date at 21.10 hours in the emergency-ward of the P.M.C.H., where the deceased was taken for treatment. Therefore, it was recorded very promptly and there was no chance of concoction in it. He has admitted that his brother Chandi Shankar Pandey had instituted a case against the deceased and he was also an accused in that case. The appellants have also filed the F.I.R. (Ext. B) in support of that. But this is no ground to disbelieve the complicity of the appellants in this case. It has been suggested to this witness that he did not witness the occurrence, but he has denied the suggestion and the denied suggestion is of no avail to the appellants.

Similarly, P.W. 4 is also a very competent witness as she was with the deceased at the time of occurrence. She has been examined at length and there is nothing in her cross-examination to disbelieve her. In cross-examination at paragraph 22 she has, of course, stated that when her husband was surrounded, she was behind her husband and then she heard three sounds of firing and then she moved forward and saw her husband dead but though at this paragraph she has not stated as to who had fired at her husband, her evidence is unimpeachable that she had seen the appellants surrounding her husband when he was shot at, at the time of occurrence. Therefore, the evidence of this witness clearly shows the complicity of the appellants in the murder of her husband.

The evidence of the I.O. shows that she was examined by him promptly on 28.7.1999 and there appears no inconsistency in her evidence in court and her statement u/s 161 Cr. P.C. In her evidence she has, of course, stated that the appellants came from the side of the school whereas before the I.O. she had said that the appellants had come out from the school. But this is a very minor inconsistency and does not affect the testimony of the witness. She is, of course, the wife of the deceased but relationship is not a factor to affect the credibility of a witness, on the other hand, the relation would not conceal the actual culprit and make allegation against the innocent persons. The F.I.R. (Ext. B), as already mentioned, shows that Chandi Shankar Pandey had instituted a case u/s 302 of the Indian Penal Code against the deceased and others but if Chandi Shankar Pandey would have been the author of the murder, there is no reason why the witness would not have named him, even if admittedly, he was the brother of the deceased. The witness has stated that at the time of occurrence the deceased had vegetables and cloths in his hand which were scattered at the P.O. but the P.O. was a road and the I.O. had inspected it on the next date. Therefore, if he did not find the above articles at the P.O., from this it cannot be said that the deceased had not gone to the market and the witness did not accompany him.

As regards P.W. 3, he had gone to call the labourers. His evidence also shows that he was constructing house and the houses of the labourers were at a distance of about 100 yards from the school. His presence at the P.O., hence, is quite natural. There is nothing in his evidence also to reject his testimony, The I.O. (P.W. 8) has indeed stated that this witness did not state before him that he saw all the accused persons, catching hold of Dhirendra Pandey (deceased) and then he heard three sounds of firing, as has been stated by him, in Court. But for the purpose of contradiction the evidence of the witness with his former statement as provided u/s 145 of the Indian Evidence Act, his attention must be invited to those parts of it which are to be used for the purpose of contradiction, but this has not been done in this case. Therefore, it cannot be said that there is contradiction in the evidence of this witness in this regard. The witness has admitted that his son Prabhakar Pandey was in jail in a case u/s 302 of the Indian Penal Code. The appellants have also filed copies of F.I.Rs. (Ext. B/1 to B/3) to show that the said Prabhakar Pandey @ Badmash is an accused in several cases for different offences. But this is no ground to reject the testimony of this witness, specially when there is nothing in those F.I.Rs. that his son was inimically disposed of towards the appellants. This witness again has admitted that the deceased was his nephew, but as already stated this is no ground to discard the testimony of this witness.

Thus, though P.Ws. 3, 4 and 6 are related to the deceased, they appeared to be quite trustworthy and their evidence inspire confidence.

In this case, there is no independent eye witness to support the prosecution case. The evidence of P.W. 7 is that in between the occurrence and till the injured was removed from the P.O. about 20 persons had reached there belonging to village Lakhanpur, Dularpur and from the orchard but there is nothing in the evidence of any of the witness that they are eye witness. So their non-examination does not affect the prosecution case. Again, Sanjay Kumar, a witness of inquest report, Paras Singh and Bahadur Singh, the two seizure list witnesses have not been examined in this case but the evidence of P.W. 7 is that they have been won over by the appellants. Besides this, the evidence of P.W. 2, a witness of inquest report shows that the inquest report was prepared at P.M.C.H. and the evidence of the I.O. is clear that he had seized some articles as mentioned above from the place of occurrence. So, the non-examination of these witnesses do not affect the prosecution case. Then Dablu Kumar, Ramadhar Singh and Munarik Paswan who were also charge-sheeted witness in this case have not been examined but there is nothing to show that they were material witness in this case. The evidence of P.W. 7 also is that they have been gained over by the appellants. Therefore, their non-examination also does not affect the present case.

As regards the motive of the occurrence, the I.O. has stated that he did not make any investigation regarding the motive alleged. P.W. 7 has also stated that no tender was invited for giving the contract of the work and no agreement was executed with the deceased doing the earth work but even if it is assumed that there was no enmity between the appellant Santu Singh and the deceased over any contract, establishment of motive is not sine qua non for proving the prosecution case. So, if the motive has not been proved that would not detract from the merit of the case.

The defence of the appellants is that the deceased was a commander of I.P.F., an extremist organisation, and he had committed several murder and kidnapping. A suggestion to this effect was also given to the P.W. 2, but P.W. 2 has denied the suggestion. Then, though the appellants have filed the F.I.Rs. of several cases (Ext. B series), except the F.I.R. (Ext. B) the deceased is not an accused in any other case. As already mentioned, the case in Ext. B was filed by the own brother of the deceased against the deceased and others for assaulting him on account of land dispute. Hence, it cannot at all be said that the deceased was a member of I.P.F. and he had many enemies. The evidence of P.Ws. 5, 3, 4 and 6 is also clinching that they had seen the occurrence and the appellants and other co-accused committed the murder. So, it cannot be said that the deceased was murdered by some unknown person and the appellants are falsely implicated

In this case the inquest report (Ext, 5) was prepared on 27.7.1999 at 21.00 hours prior to the recording of Fardbeyan which was recorded on that date at 21.10 hours when ordinarily Fardbeyan is recorded first and then the inquest report is prepared. In the inquest report the names of the accused persons of the case are also not mentioned. Then though the Fardbeyan was recorded on 27.7.1999 at 21.10 hours, the order-sheet of the Court of the Sub-divisional Judicial Magistrate, Masaurhi (Ext. A) shows that the same was received by him on 29.7.1999 and no explanation has been given by the prosecution as to why there was delay in the receipt of the Fardbeyan by the Magistrate. Besides this, the evidence of P.W. 8 also shows that he had gone alongwith the informant and other members of his family from Punpun to P.M.C.H. The evidence of P.W. 6 is that it took 1 1/2-2 hours to reach P.M.C.H. from the place of occurrence and that he had met the S.I. about one and a half km. away from the place of occurrence. P.W. 8 has stated that on the way he made enquiry from the family members of the informant but till the recording of the Fardbeyan he could not know the names of the culprits.

Learned counsel for the appellants, in view of the above facts and evidence, submitted that actually the informant and other members of his family did not see the occurrence and were not knowing the names of the culprits and that the Fardbeyan was ante dated and was not recorded in the Hospital and was drawn at a later stage after deliberation and this being so, the entire prosecution case becomes suspicious and the appellants become entitled to be acquitted. En support of his submissions that the delay in the receipt of the F.I.R. by the concerned Magistrate casts serious doubt regarding the correctness of the F.I.R. has relied upon the decisions of the Supreme Court in the case of Arjun Marik and Others Vs. State of Bihar, and Thanedar Singh vs. State of M.P., (2000) 1 S.C.C. 487.

But though, ordinarily inquest report is prepared after recording of the Fardbeyan, in this case the deceased was declared dead at P.M.C.H. and both the documents were prepared at P.M.C.H. within the jurisdiction of Pirbahore Police Station. The evidence of P.W. 8 also shows that the A.S.I. of Pirbahore police station was deputed there. Therefore, only because the inquest report was prepared there by the A.S.I. of Pirbahore Police Station and prior to the recording of the Fardbeyan, it cannot be said that the Fardbeyan was not recorded in the Hospital at the time as mentioned therein. The contention of the learned counsel is that the I.O. was, in fact, not present in the hospital and for this he has referred to the evidence of the I.O. wherein he has stated that he did not verify whether the name of the deceased was entered in the register of the hospital and has further admitted that he did not take signature of any of the employee of the hospital on the Fardbeyan. But I think it was not essential for the I.O. to verify any register of the hospital or take signature of any staff of the Hospital on the Fardbeyan. The evidence of P.W. 2, who is a witness on the inquest report and the evidence of P.Ws. 3 and 6 who had accompanied the injured to the hospital is very clear that the police of Punpun had gone with them and there does not appear to be any reason to disbelieve them. So, it cannot be said that the S.I. was not present in the P.M.C.H.

Then, though the Fardbeyan was received by the Magistrate after some delay on 29.7.1999 and no explanation has been furnished by the prosecution for the delay, the evidence of P.W. 3 who is a witness on the Fardbeyan and the evidence of the informant and the I.O. is categorical that the Fardbeyan was recorded in the hospital as alleged by the prosecution. The evidence of the I.O. also is that after recording of the Fardbeyan he recorded the further statement of the informant and the statement of Amar Nath Pandey (P.W. 3) in the hospital and then returned to the police station and on the same night at 11.50 P.M. registered the case on the basis of the said Fardbeyan. He has also stated that thereafter in the same night he searched for the accused persons and also inspected the place of occurrence.

In view of the above evidence, I think there cannot be any doubt that the Fardbeyan was actually recorded without delay in the night and investigation started on the basis of the said Fardbeyan. It has been held by the Supreme Court in the case of Pala Singh and Another Vs. State of Punjab, which has been relied on in the case of Anil Rai vs. State of Bihar, (2001) 7 S.C.C. 318 [: 2001 (3) PLJR (SC) 198] that where F.I.R. was actually recorded without delay and then investigation started on the basis of the F.I.R., the delay in sending the F.I.R. to the Magistrate cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. In the case of Arjun Marik (supra) relied on by the learned counsel, it has also been held that it is not always a criterion on the basis of which the entire prosecution case may be said to be fabricated. Again in the case of Ashok Kumar Pandey Vs. State of Delhi, the Supreme Court has held that the delay in despatch to and/or receipt of F.I.R. alone cannot be a ground for throwing out the prosecution case if otherwise the same is proved by unimpeachable evidence. In this case also I have already shown that the evidence of the eye witnesses is un-impeachable that the appellants were perpetrators of the crime. Therefore, for the delay in receipt of the Fardbeyan by the Sub-divisional Judicial Magistrate, no adverse inference can be drawn in this case.

Again, though the evidence of the I.O. is that he had made enquiry from the family members of the injured and till the recording of the Fardbeyan he could not know the names of the members of the culprits, his evidence does not show that he had made any enquiry from the informant or his brother Amar Nath Pandey who were the only witnesses, who had seen the occurrence. Therefore, on this ground also it cannot be said that the Fardbeyan was fabricated. The deceased, who was the brother of the informant was surviving at the time when the informant and others met the S.I. of Punpun police station. The informant, hence, was anxious to save his life and take him to the hospital as early as possible and the entire attention of the informant was on him and, therefore, if the informant or Amar Nath Pandey did not give any information about the occurrence to the I.O., there is nothing unnatural in it and from this it cannot be said that they were not knowing the names of the culprits at that time.

It may also be mentioned that in the inquest report the names of the accused are not mentioned but there is no column in it to mention the names of the accused persons. The basic purpose of holding of inquest report is to report regarding the apparent cause of death (whether it is suicidal, homicidal or accidental). Then though, the gist of the F.I.R. also gets reflected in the report, but in this case the Fardbeyan was recorded after preparation of the inquest report and so if the gist of the F.I.R. is not mentioned in the report, that is no ground to view the Fardbeyan with suspicion.

I, thus, do not find sufficient ground to hold the Fardbeyan ante dated and on this ground the prosecution case cannot be disbelieved.

In this case, the evidence of the I.O. shows that he had made an S.D. Entry (Sanha) before proceeding towards the place of occurrence but that Sanha has not been brought on record. Learned counsel has submitted that adverse inference may be drawn against the prosecution case. In support of his submission, he has relied on the decision of the Supreme Court in the case of Arjun Marik (supra) but the fact of that case is different from the facts of the present case. In that case though the F.I.R. was recorded at the place of occurrence, the informant had gone to the police station prior to that and then the Police Inspector before proceeding to the place of occurrence had registered the police case. Therefore, it is held therein that the Sanha was purposely not produced as the same did not reflect any doubt on the appellants to be the perpetrators of the crime. But, in this case the evidence of the I.O. is clear that he had received only a telephonic message that Dhirendra Pandey had been shot at and on that information he made an S.D. Entry No. 535. There is nothing in the evidence of the I.O. to show that he had received any other details regarding murder. He has stated that the informer did not even disclose his name. Under such circumstance, if the Sanha has not been produced in this case, it cannot be said that it has been deliberately suppressed. P.W. 2 has, of course, stated that when they reached Punpun, Rakesh Kumar Pandey and his father (informant) went to the police station for giving information. But P.W. 6 (informant) has denied that any of the family members had gone to Punpun police station to give information. The evidence of the informant and the I.O. also shows that the I.O. met them on the way. So, it cannot be said that any information regarding the offence was given by the family members of the informant at the police station and it cannot also be said that as the information did not, in any way, reflect the complicity of the appellants in the crime, the S.D. Entry was purposely withheld. Therefore, non-production of the Sanha does not affect the merits of this case. In the case of Munshi Prasad and Others Vs. State of Bihar, , the Supreme Court has also held that "Technicality ought not to outweigh the course of justice on the face of trustworthy, credible evidence on record and more-so when the failure to produce does not go to the root of the prosecution case." In view of this decision also, non-production of the Sanha does not affect the prosecution case.

Thus, considering all the facts, circumstances and evidence on record I also find and hold that the prosecution has been able to prove beyond reasonable doubt that the appellants alongwith some other accused persons formed unlawful assembly to commit the murder of Dhirendra Pandey and appellants Santoo Singh and Ranjan Kumar Singh @ Rajan Singh fired causing death of the said Dhirendra Pandey. The learned trial court, hence, was quite justified in convicting and sentencing the appellants as mentioned above. Appellants Santoo Singh and Ranjan Kumar Singh, however, should have been convicted u/s 302/34 of the Indian Penal Code instead of Section 302 of the Indian Penal Code. Hence, their conviction for the murder of the deceased is altered from Section 302 to 302/34 of the Indian Penal Code maintaining the sentence and simply with this modification all the three appeals are dismissed. Appellants Rajesh Kumar Singh and Chandan Kumar Singh, who are on bail, must surrender in the court below within one month from the date of this order to serve out the sentence. The trial court would also take step to get them arrested if they do not surrender within the above period and to realise the fine imposed by the trial court.

Aftab Alam, J.

I agree.