Appeal against reversal of conviction for the offences of Murder and Arms Act
This judgment decides two sets of appeals, one by the State of Bihar, through the Central Bureau of Investigation, and the other by Rama Devi, wife of one of the deceased – Brij Bihari Prasad, a member of the Bihar Legislative Assembly. The second deceased – Lakshmeshwar Sahu – was the bodyguard of Brij Bihari Prasad and a member of the Bihar police.
2. The impugned judgment of the High Court of Judicature at Patna dated 24.07.2014 reverses the judgment of the trial court and acquits the nine accused of the charges punishable under Sections 302, 307, 333, 355 and 379, all read with Section 34 of the Indian Penal Code, 1860, and Section 27 of the Arms Act, 1959.
3. The incident in question took place on 13.06.1998 at around 08:15 p.m. at the Indira Gandhi Institute of Medical Science, Patna.5 On the basis of the fardbeyan (Exhibit 50) of Amarendra Kumar Sinha (PW-10) recorded by S.S.P. Yadav, Inspector-cum-Officer-in-Charge, Shastri Nagar Police Station6 , on 13.06.1998 at 9:00 p.m., First Information Report7 No. 336/1998, (Exhibit 51 and 51/1) was lodged under Sections 302, 307, 34, 120B, 379 of the IPC and Section 27 of the 1959 Act at 12:15 a.m. on 14.06.1998.
The Prosecution Case
4. The prosecution case is as follows:
(i) On 13.06.1998 at around 6:30 p.m., Brij Bihari Prasad, who was in judicial custody and admitted for treatment at IGIMS hospital, was taking a walk outside the wardroom along with – Amarendra Kumar Sinha (PW-10), Arbind Singh (PW-13), Ram Nandan Singh (PW-12), Mahant Ashwani Das (PW-25), Paras Nath Chaudhury (PW-1), Onkar Singh and 2-4 others.
(ii) Brij Bihari Prasad was also accompanied by his bodyguard – Lakshmeshwar Sahu, who was armed with a carbine, and other sepoys.
(iii) Two vehicles, a Sumo car, with registration number, BR-1P-1818, followed by an Ambassador car, registration number of which could not be ascertained, entered the IGIMS hospital from the southern main gate, Bailey Road side and stopped near Brij Bihari Prasad.
(iv) Occupants of the said cars, namely – Mantu Tiwari (A-4), Vijay Kumar Shukla @ Munna Shukla (A-8), Rajan Tiwari (A-9), and Shri Prakash Shukla @ Shiv Prakash Shukla (since deceased), Satish Pandey (since deceased) and Bhupendra Nath Dubey (since deceased) came out of the vehicles.
(v) Mantu Tiwari(A-4) was armed with a sten gun and all others were armed with pistols. Bhupendra Nath Dubey (since deceased) abusively exhorted others to shoot at Brij Bihari Prasad while he himself also fired at Brij Bihari Prasad with his pistol.
(vi) Mantu Tiwari (A-4) and Shri Prakash Shukla @ Shiv Prakash Shukla (since deceased) fired at Brij Bihari Prasad from their sten gun and pistol respectively.
(vii) Satish Pandey, Vijay Kumar Shukla @ Munna Shukla (A-8) and Rajan Tiwari (A-9) fired at Lakshmeshwar Sahu.
(viii) Both Brij Bihari Prasad and Lakshmeshwar Sahu collapsed and died.
(ix) Rabindra Bhagat (PW-14) suffered a gunshot wound in the crossfire.
Post mortem report established the homicidal death
5. The post-mortem reports dated 14.06.1998 (Exhibits 9 & 9/1), proved by Dr. Arvind Kumar Singh (PW-7), establish the homicidal death of Brij Bihari Prasad and Lakshmeshwar Sahu due to multiple gunshot injuries resulting in haemorrhage and shock. The multiple gunshot wound entries are consistent with successive firing from firearms/pistol. To this extent the prosecution version is unchallenged.
Eleven eye-witnesses
6. As per the prosecution case, there were eleven eye-witnesses, namely, Paras Nath Chaudhury (PW-1), Amarendra Kumar Sinha (PW-10), Amod Kumar (PW-11), Ram Nandan Singh (PW-12), Arbind Singh (PW13), Rabindra Bhagat (PW-14), Kamakhya Narain Singh (PW-15), Bhola Prasad Premi (PW-16), Mahanth Ashwani Das (PW-25), Shashi Bhushan Singh (PW-42) and Binod Kumar Singh (PW-19). However, Paras Nath Chaudhury (PW-1), Mahanth Ashwani Das (PW-25), Shashi Bhushan Singh (PW-42), and to some extent, Amarendra Kumar Sinha (PW-10) had supported the prosecution case. Others were hostile or partly hostile as they did not support the prosecution case or did not name/identify the perpetrators.
7. Primarily relying on the testimonies of Paras Nath Chaudhury (PW-1), Mahant Ashwani Das (PW-25), Shashi Bhushan Singh (PW-42) and Amarendra Kumar Sinha (PW-10), the trial court Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 5 of 40 convicted the respondents Suraj Bhan Singh (A-1), Mukesh Singh (A-2), Lallan Singh (A-3), Mantu Tiwari (A-4), Captain Sunil Singh (A-5) (since deceased)8 , Ram Niranjan Chaudhary (A-6), Vijay Kumar Shukla @ Munna Shukla (A-8), Rajan Tiwari (A-9) and Shashi Kumar Rai (A-7) (since deceased).
Court depositions and analysis of evidence
9. We will now examine in some detail the court depositions of Paras Nath Chaudhury (PW-1), Mahanth Ashwani Das (PW-25), Amarendra Kumar Singh (PW-10) and Rama Devi (PW-24), before scrutinising the reasons given by the High Court to discredit their versions. Our discussion will also address the arguments raised by both sides, with particular focus on the contention of the respondents that the court depositions of Paras Nath Chaudhury (PW-1), Mahanth Ashwani Das (PW-25), Amarendra Kumar Singh (PW-10) and Rama Devi (PW-24) should not be accepted.
Apex court is agreeing with the reasoning given by the High Court for disbelieving P.W.42
10. At the outset, we express our agreement with the reasoning given by the High Court for disbelieving the presence of Shashi Bhushan Singh (PW42) at the spot, and consequently, his deposition as an eye-witness for the following reasons:
(i) Shashi Bhushan Singh (PW-42) is not mentioned as one of the persons present at the place of occurrence in the fardbeyan (Exhibit-50), as also in the FIR (Exhibits 51 and 51/1). These documents name the eyewitnesses. Therefore, the absence of the name of Shashi Bhushan Singh (PW-42) is significant.
(ii) His statement under Section 161 CrPC was recorded on 18.06.1998, i.e., 5 days after the date of occurrence;
(iii)Shashi Bhushan Singh (PW-42) has deposed about taking the dead body of Brij Bihari Prasad on 14.06.1998 from Patna to Behihari village, the native place of Brij Bihari Prasad. Therefore, the delay in his Section 161 CrPC statement impairs his assertion of being an eyewitness, making it unworthy of acceptance;
(iv) Although Paras Nath Chaudhury (PW-1), Mahant Ashwani Das (PW-25), and Rama Devi (PW-24) have testified to the presence of Shashi Bhushan Singh (PW-42) as an eyewitness, this assertion should not be accepted. The fardbeyan (Exhibit P-50), being the first written account made immediately after the incident, is unexceptionable. Furthermore, the unexplained delay of five days in recording the statement of Shashi Bhushan Singh (PW-42) as an eyewitness dents the credibility of his account.
(v) For the same reasons, the reliance of the prosecution on the court testimony of Amarendra Kumar Sinha (PW-10), averring the presence of Shashi Bhushan Singh (PW-42) at the place of occurrence, contrary to his fardbeyan, is erratic and untrustworthy. Amarendra Kumar Sinha (PW-10), did not entirely support the prosecution case, yet being conscious of the fact that he was the informant of the fardbeyan, he could not completely resile. His dock version about the presence of Shashi Bhushan Singh (PW-42) has been rightly disbelieved.
PW-1 did not describe the hospital room
13. Though it was pointed out that Paras Nath Chaudhury (PW-1), in his testimony, could not remember the number of the hospital room or whether it was south-facing or not, this aspect would not, in our opinion, dent his core testimony. It is apposite to note that Paras Nath Chaudhury (PW-1) was aware that the hospital room was on the ground floor and there was a verandah after crossing 4-5 rooms on the west side. He further stated that there was a cycle stand, a vacant place for sitting, and a road which joins Bailey Road on the west side.
Any person can be an informant of a case and the police may also register a case on their own
15. The reasoning given by the High Court to disregard and doubt the eyewitness account of Paras Nath Chaudhury (PW-1), on the premise that he ought to have been the informant because he is the brother-inlaw of Brij Bihari Prasad and was present at the hospital at the time of occurrence, is conjectural and unfounded. This fact cannot ipso facto lead to the disavowal of his testimony. Such a presumption imposes a rigid formula for determining who should be an informant, which the law does not envision. It is an accepted and admitted position that the name of Paras Nath Chaudhury (PW-1) has been mentioned in the fardbeyan and in the FIR as one of the persons present at the hospital. Any person can be an informant of a case, and the police may also register a case on their own. The rationale of the High Court for dismissing the testimony of Paras Nath Chaudhury (PW-1) is fundamentally flawed.
Evidence can be relied upon especially when the substratum of the prosecution case remains intact
16. Yet another reason for rejecting his testimony stems from contradictions about the presence of Rajan Tiwari (A-9) as an assailant at the hospital. In his police statement, Paras Nath Chaudhury (PW-1) identified Rajan Tiwari (A-9) as being at the hospital, but in his court testimony, he stated that Rajan Tiwari (A-9) was not present. In our considered view, this contradiction does not weaken Paras Nath Chaudhury’s (PW-1) account of witnessing Mantu Tiwari (A-4) and Vijay Kumar Shukla @ Munna Shukla (A-8) commit the offence. Indian law does not recognise the doctrine – falsus in uno, falsus in omnibus. In Deep Chand and Others v. State of Haryana [(1969) 3 SCC 890], this Court had observed that the maxim falsus in uno, falsus in omnibus is not a sound rule to apply in the conditions of this country. This maxim does not occupy the status of rule of law. It is merely a rule of caution which involves the question of the weight of evidence that a court may apply in the given set of circumstances [Ponnam Chandraiah v. State of Andhra Pradesh, (2008) 11 SCC 640]. In cases where a witness is found to have given unreliable evidence, it is the duty of the court to carefully scrutinise the rest of the evidence, sifting the grain from the chaff. The reliable evidence can be relied upon especially when the substratum of the prosecution case remains intact. The court must be diligent in separating truth from falsehood. Only in exceptional circumstances, when truth and falsehood are so inextricably connected as to make it indistinguishable, should the entire body of evidence be discarded.
PW-25 himself an absconded accused in a murder case
19. As noted above, the High Court has rejected the testimony and complicity of the accused by Mahant Ashwani Das (PW-25) on the ground that he is himself an accused in a murder case and had absconded despite being convicted in appeal, while he was being examined as a witness in the present case. The High Court had also held that Mahant Ashwani Das (PW-25) had the patronage of Rama Devi (PW-24) and the deceased Brij Bihari Prasad.
The chequered past of a witness cannot be dismissed as untruthful or uncreditworthy without considering the surrounding facts
20. The criminal background of a witness necessitates that the courts approach their evidence with caution. The testimony of a witness with a chequered past cannot be dismissed as untruthful or uncreditworthy without considering the surrounding facts and circumstances of the case, including their presence at the scene of the offence. In cases involving conflicts between rival gangs or groups, the testimony of members from either side is admissible and relevant. If the court is convinced of the veracity and truthfulness of such testimony, it may be considered. Courts typically assess the broader context to determine if there is sufficient corroboration, as long as there are no valid reasons to discredit the evidence. The crucial test is whether the witness is truly an eyewitness and whether their testimony is credible. If their presence at the scene is established beyond doubt, their account of the incident can be relied upon. Such evidence cannot be discarded merely on the grounds of criminal background.
Principle of Docrine of falsus in uno, falsus in omnibus equally apply to a declared hostile witness
22. We have already referred to judgments of this Court while examining the doctrine of falsus in uno, falsus in omnibus. The same principles equally apply when the court examines the statement of a witness who has been declared hostile by the prosecution. In a catena of judgments, this Court has observed that the evidence of a hostile witness is not to be completely rejected, so as to exclude versions that support the prosecution. Rather, the testimony of the hostile witness is to be subjected to close scrutiny, thus enabling the court to separate truth from falsehood, exaggerations and improvements. Only reliable evidence should be taken into consideration. The court is not denuded of its power to make an appropriate assessment. The entire testimony of a hostile witness is discarded only when the judge, as a matter of prudence, finds the witness wholly discredited, warranting the exclusion of the evidence in toto [See C. Muniappan and Others v. State of Tamil Nadu, (2010) 9 SCC 567] The creditworthy portions of the testimony should be considered for the purpose of evidence in the case. It is in this context that we have to examine the testimony of Amarendra Kumar Sinha (PW-10), the complainant/informant, who gave the fardbeyan (Exhibit P-50) on which basis the FIR (Exhibit P-50/51) was registered.
Identification and non-recovery of vehicles and weapons
27. Paras Nath Chaudhury (PW-1) and Mahanth Ashwani Das (PW-25) have identified the vehicles used by the accused on 13.06.1998. They have specifically deposed about a Sumo bearing registration no. BR-1P-1818. The Sumo and the Ambassador cars, which they have referred to in their depositions, were not recovered. The weapons used in the offence, including the carbine belonging to the deceased Lakshmeshwar Sahu, also could not be recovered. However, given the facts and circumstances of the case, the failure of the police to recover the vehicles and the weapons is not sufficient to undermine the credibility of the eyewitness accounts or the corroborative evidence regarding the cause of the homicidal deaths of Brij Bihari Prasad and Lakshmeshwar Sahu. The ocular version of the witnesses should not be disregarded solely because the weapon used in the crime and the vehicles allegedly used by the accused were not located or seized by the police [See Yogesh Singh v. Mahabeer Singh and Others, (2017) 11 SCC 195 which refers to several other decisions. See also State of Rajasthan v. Arjun Singh and Others (2011) 9 SCC 115].
When accused raises a specific contention about delay in forwarding the fir then they must demonstrate how this delay has prejudiced their case
30. The occurrence having taken place at night on 13.06.1998, normally the FIR should have been sent to the jurisdictional magistrate on 14.06.1998. However, 14.06.1998 being a Sunday was a holiday. The FIR was forwarded to the jurisdictional magistrate on 15.06.1998. There is, therefore, an explanation for the delay in forwarding a copy of the FIR to the jurisdictional magistrate in terms of Section 157 of the CrPC. It is trite law that a delay in forwarding the FIR to the jurisdictional magistrate is not fatal to the prosecution case. This Court, in State of Rajasthan v. Daud Khan [(2016) 2 SCC 607], has examined the case law on the subject and held that when there is a delay in forwarding the FIR to the jurisdictional magistrate and the accused raises a specific contention regarding the same, they must demonstrate how this delay has prejudiced their case. Mere delay by itself is not sufficient to discard and disbelieve the case of the prosecution. If the investigation starts in right earnest and there is sufficient material on record to show that the accused were named and pinpointed, the prosecution case can be accepted when evidence implicates the accused. The requirement to dispatch and serve a copy of the FIR to the jurisdictional magistrate is an external check against ante dating or ante timing of the FIR to ensure that there is no manipulation or interpolation in the FIR. If the court finds the witnesses to be truthful and credible, the lack of a cogent explanation for the delay may not be regarded as detrimental.
Attesting Witnesses and Retaliatory Firing
33. The contention that Paras Nath Chaudhury (PW-1) and Mahanth Ashwani Das (PW-25) were not attesting witnesses to the inquest report, fardbeyan, FIR, etc. is inconsequential and does not in any way weaken their ocular evidence. Similarly, the contention that they were not injured during the cross-fire is nugatory as it is clear from the evidence on record that it was Brij Bihari Prasad who was the target of the attack. The armed bodyguards who were attacked had retaliated. Although it is true that the depositions of Paras Nath Chaudhury (PW-1) and Mahanth Ashwani Das (PW-25) do not mention the retaliatory firing by the bodyguards, an independently proven fact, this alone is not a sufficient ground to dismiss their presence at the spot or their versions including the culpability of the persons who had committed the offence.
Charge of conspiracy
40. To fortify the charge of conspiracy, the prosecution has further relied on the fax message (Exhibit-6) regarding the threat to the life of Brij Bihari Prasad. This fax message would not help the prosecution implicate the accused persons – Suraj Bhan Singh (A-1), Mukesh Singh (A-2), Lallan Singh (A-3) and Captain Sunil Singh (A-5) (since deceased) – on the charge of criminal conspiracy.
44. In light of the above discussion, we hold and direct as under
a) The charge under Section 302 read with Section 34 of the IPC against Mantu Tiwari (A-4) and Vijay Kumar Shukla @ Munna Shukla (A-8) for the murders of Brij Bihari Prasad and Lakshmeshwar Sahu is proven and established beyond reasonable doubt.
b) The charge under Section 307 read with Section 34 of the IPC against Mantu Tiwari (A-4) and Vijay Kumar Shukla @ Munna Shukla (A-8) for attempting to murder, as held in paragraph 34 above, is proven and established beyond reasonable doubt.
c) The conviction and sentence awarded to Mantu Tiwari (A-4) and Vijay Kumar Shukla @ Munna Shukla (A-8) by the trial court under Sections 302 and 307 read with Section 34 of the IPC are affirmed and restored.
d) Consequently, Mantu Tiwari (A-4) and Vijay Kumar Shukla @ Munna Shukla (A-8) shall have to undergo imprisonment for life with a fine of Rs. 20,000/- (Rupees Twenty Thousand Only) each under Section 302 read with Section 34 of the IPC, and in addition to undergo rigorous imprisonment for five years with a fine of Rs. 20,000/- (Rupees Twenty Thousand Only) each under Section 307 read with Section 34 of the IPC. Both the sentences shall run concurrently. Section 428 of the CrPC shall apply. As default punishment was not imposed by the trial court, we direct that in case of non-payment of fine on each account, Mantu Tiwari (A-4) and Vijay Kumar Shukla @ Munna Shukla (A-8) shall undergo rigorous imprisonment for six months.
e) Mantu Tiwari (A-4) and Vijay Kumar Shukla @ Munna Shukla (A-8) are directed to surrender within two weeks from today to the concerned jail authorities/court to serve the remainder of their respective sentences. In case of failure to surrender, the authorities shall take appropriate measures to arrest and detain them in accordance with law.
f) Insofar as Suraj Bhan Singh (A-1), Mukesh Singh (A-2), Lallan Singh (A-3), Ram Niranjan Chaudhary (A-6) and Rajan Tiwari (A-9) are concerned, we give them benefit of doubt and uphold their acquittal.
Party
Rama Devi … Appellant versus The State of Bihar and others … Respondents – Criminal Appeal Nos. 2623-2631 of 2014 – 2024 INSC 755 [3 judge bench]