Patna High Court – Orders
Anju Devi vs The State Of Bihar on 9 December, 2024
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2503 of 2023
Arising Out of PS. Case No.-187 Year-2018 Thana- CHAPRA MUFFASIL District- Saran
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1. Anju Devi Wife Of Raj Kishore Singh Resident Of Village- Khalpur, Ps-
Chapra, Muffasil, Distt- Saran Chapra
2. Chhotu Kumar @ Jhitu Son Of Raj Kishore Singh Resident Of Village-
Khalpur, Ps- Chapra, Muffasil, Distt- Saran Chapra
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Bindhyachal Singh, Sr. Advocate
Mr. Ram Binod Singh, Advocate
For the State : Ms. Abha Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
4 09-12-2024
Heard learned Senior Counsel for the appellants and
learned counsel appearing on behalf of the State.
2. This appeal has been preferred for setting aside the
judgment of conviction dated 23/03/2023 and sentence dated
27/03/2023 passed by Addl. District and Sessions Judge IX,
Saran in Session Trial No. 385 / 2020 arising out of Chapra
Mufassil P.S. Case No. 187/2018 registered under Section 302/
34 of the Indian Penal Code whereby the appellants have been
convicted under Section 304 Part I /34 of the Indian Penal Code.
3. The appellant No. 1 Anju Devi is sentenced to 5 (five)
years of rigorous imprisonment and Rs. 25,000/- is imposed as
fine and in case of default in payment of fine, she shall further
undergo Simple Imprisonment of 3 months. The appellant No. 2
Patna High Court CR. APP (SJ) No.2503 of 2023(4) dt.09-12-2024
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Chhotu Kumar @ Jhitu is sentenced to rigorous imprisonment of
10 (ten) years and fine of Rs. 50,000/- (Rupees Fifty Thousand
only) is imposed, and in case of default in payment of fine, he
shall further undergo Simple Imprisonment of 6 months.
4. Learned Senior Counsel for the appellants submits that
the FIR of Chapra Mufassil P.S. Case No. 187/2018 was
registered on 10/05/2018 on the oral statement of the informant
Jagdish Singh. The allegations in the FIR is that on 25/04/2018
there was discussion between Rajesh Kumar Singh (deceased,
son in law of the informant) and his brother Raj Kishore Singh
for performing Shiv-charcha. Rajesh Kumar Singh said that his
sister-in-law has passed away and so Shiv-charcha will not be
performed. There was verbal altercation between Rajesh and Raj
Kishore and Raj Kishore said that Shiv-charcha will performed
on the same day. In the midst of altercation, wife of Raj Kishore
Singh namely Anju Devi came out exhorting her son Chhotu @
Jhitu and ordered Chhotu to fetch an axe (Kulhari) and kill
Rajesh. Raj Kishore, Anju and Chhotu, all three assaulted
Rajesh and pushed him on the floor with slaps and fists and
sticks. Chhotu assaulted Rajesh on his head with axe (Kulhari)
and Raj Kishore assaulted with rod on the head which resulted
in injury upon Rajesh and Rajesh became unconscious and fell
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down. People gathered there and they pacified the fight. People
took Rajesh to the Sadar Hospital, Chapra from where Rajesh
was referred to CNS Hospital, Patna for better treatment and
Rajesh was admitted at CNS Hospital on 26/04/2018. Rajesh
died on 27/04/2018 at 11:45 O’clock during the course of
treatment.
5. Learned Senior Counsel for the appellants further
submits that the aforesaid oral statement of the informant was
given at 8:00 AM on 28/04/2018 to the local police personnel of
Patliputra police station which was sent to the Chapra Mufassil
police station where FIR of Chapra Mufassil P.S. Case No.
187/2018 under Section 302/34 of the IPC was registered on
10/05/2018. The police submitted charge sheet no. 439/18 dated
31/12/2018 against the appellants under Section 302/34 of the
IPC.
6. It is submitted on behalf of the appellants that the
cognizance was taken on 31/01/2013 under Sections 302/34 IPC
by the court learned CJM, Chapra and the case was committed
to the Court of Sessions. The charges were framed against the
appellants under the Section 302/34 of the IPC on 03/02/2021.
The appellants pleaded innocence and they claimed to be tried.
7. Learned Senior Counsel further submits that during the
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course of the trial, 5 witnesses were produced and examined by
the prosecution and 6 documentary evidences were exhibited.
8. He submits that after closure of the prosecution
evidence, the trial court recorded the statement of the appellant
u/s 313 Cr. P. C. on 01/03/2021 in which the appellant refuted
the allegations levelled against him.
9. Learned Senior Counsel for the appellants submits that
on 23/03/2023, the trial court has convicted the appellants under
Section 304 Part 1/34 of the Indian Penal Code and order of
sentence was passed on 27/03/2023.
10. It has further been submitted by the learned Senior
Counsel for the appellants that the trial court has erred in not
appreciating that the FIR is lodged by delay, as the occurrence
took place on 25/04/2018 in the evening, whereas the fardbeyan
is recorded on 28/04/2018 at 08:00 A.M. and the delay is not
explained. If the alleged occurrence of 25/04/2018 is correct,
then it is not explained as to why local police was not informed
of the alleged assault on the same day or the next day.
11. Learned Senior Counsel further submits that the trial
court has erred in not appreciating that PW 1 and PW 2 are
interested and related witness and they have cooked up the
prosecution story to capture the share of the properties of the
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appellant side. No independent witness has deposed in the trial
which itself doubts the prosecution case. There is contradiction
between the statements of PW-1, PW-2 and PW-4. There is
inherent contradiction in the deposition of PW-2 in two separate
trials, one being the present trial and second being Session Trial
No. 22/2019.
12. It is also submitted that the trial court has failed to
appreciate that the medical evidence does not corroborate the
prosecution story and the nature of weapon is shown as hard and
blunt substance and not sharp cutting weapon and hence the
manner of occurrence becomes doubtful.
13. He argues that the trial court has failed to appreciate
that the medical papers and evidence of alleged treatment at
Sadar Hospital, Chapra is not produced in the trial by the
prosecution and therefore the manner of occurrence and the
treatment of the victim is doubtful. The trial court has also erred
in not appreciating that no signs of alleged occurrence and no
blood mark was found by the Investigating Officer (PW 4) on
the place of occurrence and no soil / sand containing blood was
recovered from the place of occurrence and thus the place of
occurrence is not proved.
14. He submits that the trial court has not considered that
Patna High Court CR. APP (SJ) No.2503 of 2023(4) dt.09-12-2024
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the alleged weapon axe (Kulhari/Dangi) is not recovered and
not produced as exhibit in the trial.
15. Ms. Abha Singh, learned Additional Public Prosecutor
has supported the judgment and has submitted that the
appellants have been rightly convicted after considering the
evidence of the prosecution witnesses. She has further said that
P.W.-1 and P.W.- 2 are reliable though they are relatives of the
deceased.
16. P.W.-1 is Payal Kumari @ Payal Singh wife of the
deceased. In her deposition she has said that with regard to
Shiv-charcha, the deceased i.e. Rajesh Kumar Singh, Raj
Kishore Singh started quarreling over Shivcharcha thereafter
Chhotu Kumar @ Jhitu brought an Axe (Kulhari) and thereafter
the three accused persons i.e. Chotu Kumar, Anju Devi and Raj
Kishore Singh started assaulting the deceased Rajesh Kumar
Singh. Chhotu Kumar @ Jhitu, the appellant No. 2 assaulted the
deceased with an Axe and Rajkishore Singh assaulted the
deceased with an iron-rod due to which her husband fainted and
thereafter he was taken for treatment to the Sadar Hospital,
Chapra from where the doctor referred him to Patna. On
27.04.2018 her husband died.
17. In her cross-examination, she has said that her
Patna High Court CR. APP (SJ) No.2503 of 2023(4) dt.09-12-2024
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husband was assaulted in her presence and he had sustained
about 10 injures on his head and there was fracture in his head.
She further says that 10-20 injuries were sustained by her
husband on his body. Most of the injuries were internal but there
was bleeding from the head injury. She further says that after the
head injury caused by the Axe (Kulhari) and rod, the deceased
became senseless and thereafter never gained his sense. Raj
Kishore Singh gave the final blow on the head of the deceased.
18. P.W.-2 is one Jagdish Singh father-in-law and father of
P.W.-1, in his deposition he has said that he was present in the
house of his daughter and witnessed the occurrence and the
occurrence took place because of dispute over Shiv-charcha. He
further says that all the accused persons assaulted the deceased.
He says that Raj Kishore Singh assaulted the deceased with
iron-rod. Chhotu Kumar @ Jhitu assaulted with an Axe
(Kulhari) and the head of the deceased was crushed because of
the injury given by the accused persons. The deceased was taken
to the Sadar Hospital, Chapra and from there, he was referred to
Patna where he was admitted in CNS Hospital and died on
27.04.2018 at 11:35 A.M.
19. The fardbeyan was recorded by the Assistant Sub-
Inspector of Police of Patliputra Police Station. The signature of
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the informant has been marked as Exhibit – ‘1’. The P.W. 2
claims to be an eye-witness and has said that the occurrence
continued for about 20 minutes and because of the assault, the
deceased became senseless. He further says that his son-in-law
sustained 10 injuries and because of the head injury, bones of
the head got crushed. He further says that 4-5 axe injuries were
seen on the deceased. 5-6 injuries caused by rod were also
visible and the victim was bleeding and he was taken to the
Sadar Hospital Chapra from where he was referred to CNS
hospital, Patna.
20. I have considered the submission of the parties.
21. The occurrence took place on 25.04.2018 at around
8:00 P.M. From the evidence of P.W.-1, it appears that the
deceased was taken to Chapra Sadar Hospital for treatment from
where he was taken to CNS Hospital, Patna and after the death
of the deceased, the fardbeyan was recorded on 28.04.2018 at
8:00 P.M. and the fardbeyan was forwarded to the local police
where the FIR has been recorded at 10.05.2018. The first point
for consideration is the delay in lodging of the case and there is
no plausible explanation for the delay in reporting the
occurrence to the Police which would have resulted in
registration of the FIR. The occurrence took place on
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25.04.2018 at 8:00 PM. The deceased has been taken to the
Chapra Sadar Hospital for treatment. The fardbeyan for the
occurrence could have been given at Chapra on 25th or 26th but
the police was not informed by the prosecution. The fardbeyan
has been recorded after the deceased died in CNS Hospital,
Patna. The deceased died at 11:55 A.M. on 27.04.2018 whereas
the ferdbeyan has been recorded on 28.04.2018 at 08:00 A.M.
i.e., on the next day of the death of the deceased. This is also not
explained by the prosecution as to what so much time for
recording the fardbeyan of the informant by the police at CNS
Hospital, Patna. There is no explanation for the delay in the
FIR.
22. Learned Senior Counsel for the appellants has relied
on the judgment of the Hon’ble Supreme Court in the case of
Meharaj Singh v. State of U.P. reported in (1994) 5 SCC 188.
Relevant paragraphs are quoted herinbelow:-
12. FIR in a criminal case and
particularly in a murder case is a vital and
valuable piece of evidence for the purpose of
appreciating the evidence led at the trial. The
object of insisting upon prompt lodging of the FIR
is to obtain the earliest information regarding the
circumstance in which the crime was committed,
including the names of the actual culprits and the
Patna High Court CR. APP (SJ) No.2503 of 2023(4) dt.09-12-2024
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also the names of the eyewitnesses, if any. Delay in
lodging the FIR often results in embellishment,
which is a creature of an afterthought. On account
of delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also creeps in of
the introduction of a coloured version or
exaggerated story. With a view to determine
whether the FIR was lodged at the time it is alleged
to have been recorded, the courts generally look
for certain external checks. One of the checks is the
receipt of the copy of the FIR, called a special
report in a murder case, by the local Magistrate. If
this report is received by the Magistrate late it can
give rise to an inference that the FIR was not
lodged at the time it is alleged to have been
recorded, unless, of course the prosecution can
offer a satisfactory explanation for the delay in
despatching or receipt of the copy of the FIR by the
local Magistrate. Prosecution has led no evidence
at all in this behalf. The second external check
equally important is the sending of the copy of the
FIR along with the dead body and its reference in
the inquest report. Even though the inquest report,
prepared under Section 174 CrPC, is aimed at
serving a statutory function, to lend credence to the
prosecution case, the details of the FIR and the gist
of statements recorded during inquest proceedings
get reflected in the report. The absence of those
details is indicative of the fact that the prosecution
Patna High Court CR. APP (SJ) No.2503 of 2023(4) dt.09-12-2024
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given any shape and that the FIR came to be
recorded later on after due deliberations and
consultations and was then ante-timed to give it the
colour of a promptly lodged FIR. In our opinion,
on account of the infirmities as noticed above, the
FIR has lost its value and authenticity and it
appears to us that the same has been ante-timed
and had not been recorded till the inquest
proceedings were over at the spot by PW 8.
23. Learned Senior Counsel for the appellants has
further relied on the judgment of the Hon’ble Supreme Court in
the case of State of Andhra Pradesh Vs. Madhusudan Rao
reported in (2008) 15 SCC 582. Paragraphs No. 30 and 31 are
quoted for ready reference:-
“30. Time and again, the object and
importance of prompt lodging of the first
information report has been highlighted. Delay in
lodging the first information report, more often
than not, results in embellishment and
exaggeration, which is a creature of an
afterthought. A delayed report not only gets bereft
of the advantage of spontaneity, the danger of the
introduction of a coloured version, an exaggerated
account of the incident or a concocted story as a
result of deliberations and consultations, also
creeps in, casting a serious doubt on its veracity.
Patna High Court CR. APP (SJ) No.2503 of 2023(4) dt.09-12-2024
12/16Therefore, it is essential that the delay in lodging
the report should be satisfactorily explained.
31. In the present case, as noted supra,
the first information report in a regard to the
alleged occurrence on 19-4-1996 was lodged on
22-5-1996. Admittedly, after her discharge from the
hospital on 22-4-1996, the complainant went to her
parents’ house and resided there. In her testimony,
the complainant has deposed that since no one
from the family of the accused came to enquire
about her welfare, she decided to lodge the first
information report. No explanation worth the name
for delay in filing the complaint with b the police
has come on record. We are of the opinion that this
circumstance raises considerable doubt regarding
the genuineness of the complaint and the veracity
of the evidence of the complainant (PW 1) and her
father (PW 3), rendering it unsafe to base the
conviction of the respondent upon it. Resultantly,
when the substratum of the evidence given by the
complainant (PW 1) is found to be unreliable, the
prosecution case has to be rejected in its entirety.”
24. Learned Senior Counsel for the appellants has also
relied on the judgment of the Hon’ble Supreme Court in the
case of Satpal Singh Vs. State of Haryana reported in (2010) 8
SCC 714. Paragraph No. 10 of the aforesaid judgment is quoted
below:-
“15. This Court has consistently
Patna High Court CR. APP (SJ) No.2503 of 2023(4) dt.09-12-2024
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prompt lodging of FIR. Delay in lodging FIR more
often than not, results in embellishment and
exaggeration, which is a creature of an
afterthought. A delayed report not only gets bereft
of the advantage of spontaneity, the danger of the
introduction of a coloured version, an exaggerated
account of the incident or a concocted story as a
result of deliberations and consultations, also
creeps in, casting a serious doubt on its veracity.
Thus, FIR is to be filed more promptly and if there
is any delay, the prosecution must furnish a
satisfactory explanation for the same for the reason
that in case the substratum of the evidence given by
the complainant/informant is found to be
unreliable, the prosecution case has to be rejected
in its entirety.
25. The delay in registration of the case by the
prosecution and the fact that the fardbeyan has been given by
the father-in-law of the deceased whose presence has been
doubted by the defence at the place of occurrence and at the
hospital. In her statement before the police, P.W.-1 has not taken
the name of P.W.-2 as having accompanied the victim deceased
to the hospital and to Patna whereas in her deposition she has
said that her father had accompanied her. The I.O. in his cross-
examination in paragraph no. 10 has said that P.W.-1 had not
stated before him that her father P.W.-2 had taken the victim to
Patna High Court CR. APP (SJ) No.2503 of 2023(4) dt.09-12-2024
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the hospital at Chapra and at Patna. Payal Kumari @ Payal
Singh had named the persons who had taken the victim to the
hospital in which Jagdish Singh has not been mentioned by
Payal Kumari before the police.
26. From the aforesaid facts and the delay in lodging the
FIR, the presence of P.W.-2 becomes doubtful as it appears that
the prosecution side waited for P.W.-2 to come and register the
case. There may had been some explanation for not registering
the case at Chapra at the very first instance but the delay in
registering the case for almost a day is fatal to the prosecution.
From the evidence of P.W.-1 Payal Kumari it appears that she
was informed by her Nandoshi Santosh Singh about the death of
her husband but it is not Santosh Singh who was present in CNS
hospital, Patna who has given the fardbeyan. The informant in
my opinion is not an eye witness to the occurrence though he
has claimed that he is an eye witness and he had accomplanied
the deceased in injured condition to Sadar Hospital, Chapra and
CNS Hospital, Patna.
27. The participation of the appellant in the occurrence is
concerned, P.W.-3 is one Shri Shiv Ranjan Kumar who has
conducted the postmortem. He has found external injuries
accused by hard and blunt substance. There is no injury found
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on the deceased which can be accused by an Axe and it is the
specific case of the prosecution that the appellant No. 2 Chhotu
Kumar @ Jhitu had assaulted the deceased with an Axe.
Moreover, considering the fact that the P.W.-2 the informant was
not present on the spot and the prosecution might have
concocted the story about the occurrence, the participation of the
appellant No. 1 (Anju Devi), the lady of the house also becomes
doubtful.
28. It appears that the prosecution waited for P.W.-2 to
come and give Fardbeyan making the entire family an accused
though he was not an eye-witness.
29. In my opinion, the prosecution has not been able to
prove the case beyond reasonable doubt and therefore the
judgment of conviction and sentence is set aside.
30. The appellants are acquitted of all the charges. The
appeal is allowed.
31. The present appeal against the judgment of
conviction dated 23.03.2023 and sentence dated 27.03.2023
passed by the Additional District and Sessions Judge-IX,
Saran in Sessions Trial Case No. 385 of 2020 (Arising out of
Chapra Mufassil P.S. Case No. 187 of 2018) is set aside.
32. The appellant no. 2 (Chhotu Kumar @ Jhitu), who is
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in jail custody should be released forthwith, if not wanted in any
other case.
33. The records of the case be returned to the trial court
forthwith. Interlocutory application if any shall also stand
disposed of accordingly.
34. The appellants shall be discharged from the liabilities
of the bail bonds.
(Sandeep Kumar, J)
Saif/-Prama/-
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