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PETITIONER:

SURESH RAI & ORS.

Vs.

RESPONDENT:

STATE OF BIHAR

DATE OF JUDGMENT: 30/03/2000

BENCH:

Y.K.Sadharwal, A.P.Misra

JUDGMENT:

S.SAGHIR AHMAD, J. Enmity, undoubtedly, is a

double-edged weapon; it may be a motive for commission of

crime; it may also be a motive for false implication. If,

as in the instant case, one edge of the weapon of enmity is

blunt, it cannot be sharpened by the judicial process. The

weapon of enmity in the instant case, as we shall presently

see, does not cut any ground for the commission of crime.

The appellants were charged and tried for offences under

Section 302/34 IPC for having committed the murder of

Shambhu Rai on June 2, 1984 at Dhamaun Chour, Village Garh

Chak Seema, P.S. Patory, Distt. Samastipur. One of the

appellants, Pradeep Rai was further charged under Section

109/302 IPC for having abetted the offence by giving

directions to his co-appellants, Suresh Rai and Jitendra

Prasad Rai to commit the murder of Shambhu Rai. The

appellant Suresh Rai was further charged under Section 27 of

the Arms Act for being in possession of a country-made

pistol which he had fired twice at Shambhu Rai. The

appellants were convicted for the aforesaid offences by

judgment and order dated 15.4.1988, passed by the 2nd Addl.

Sessions Judge, Samastipur, and were sentenced to life

imprisonment for the offences under Section 302/34 IPC, but

no separate sentence was passed under Section 109/302 IPC

against Pradeep Rai or under Section 27 of the Arms Act

against Suresh Rai. The appeal filed by the appellants in

the High Court was dismissed on 5th of May, 1998. Hence,

this appeal. The prosecution story, as set out in the FIR,

is that on 2nd of June, 1984 at about 5.30 A.M., Sheo Deo

Rai (informant - P.W.10) along with Shatrughan Rai (P.W.16)

and Ram Narain Rai (P.W.17), accompanied by Shambhu Rai

(deceased), had gone to Dhamaun Chour to scrape grass and

while they had scraped the grass for about half an hour,

there came the appellants, Suresh Rai (armed with a pistol),

his father Pradeep Rai (armed with a dagger) and his cousin

Jitendra Prasad Rai @ Jaintri Rai (armed with a dagger).

Out of them, Pradeep Rai, who was the father of Suresh Rai,

asked others, namely, Sheo Deo Rai (P.W.10), Shatrughan Rai

(P.W.16) and Ram Narain Rai (P.W.17) to move away as they

had come to commit the murder of Shambhu Rai. These persons

then moved a few paces away and then Suresh Rai, at the

instigation of his father, Pradeep Rai, fired two shots at

Shambhu Rai, who fell down and, thereafter, Pradeep Rai and

Jitendra Prasad Rai gave Chhura (dagger) blows to the

deceased who died on the spot. This story has been held to

have been proved both by the trial court and the High Court.

Mr. U.R. Lalit, learned Senior Counsel appearing on behalf

of the appellants, has contended that the three witnesses,

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namely, Sheo Deo Rai (P.W.10), Shatrughan Rai (P.W. 16) and

Ram Narain Rai (P.W.17), who were produced as eye-witnesses

of the incident in question, were really not present at the

spot and had not seen the occurrence, which had taken place

some time in the preceding night and not in the morning at

5.30 A.M. as alleged by the prosecution. It is contended

that there was bitter enmity between the appellants and

their family members, on the one hand, and the deceased and

his family members, on the other. Sheo Deo Rai (P.W.10),

Shatrughan Rai (P.W.16) and Ram Narain Rai (P.W.17) were

close relations of the deceased besides being related inter

se. Admittedly, they were on inimical terms with the

appellants. Learned counsel for the appellants has also

attacked the investigation which, according to him, was

wholly tainted and taking advantage of the enmity with the

family of the deceased, the police, at the instance of the

complainant, had roped them in this case. What is correct

and what is not correct has to be decided on a consideration

of overall circumstances of the case as emanating from the

material brought on record, including the statement of

witnesses recorded by the trial court. The prosecution

story, if analysed, indicates : 1. The time of the

incident was 6.30 AM. 2. The field at Dhamaun Chour was

the place where the incident took place. 3. Shambhu Rai

was shot at twice by Suresh Rai (by pistol), and thereafter

given dagger blows by the other two appellants, namely,

Pradeep Rai and Jitendra Prasad Rai. 4. Sheo Deo Rai

(PW-10), Shatrughan Rai (PW-16) and Ram Narain Rai (PW-17)

were at the spot and had witnessed the occurrence. 5. The

presence of the deceased and the witnesses at the spot is

evidenced by the heaps of grass which they had scraped and

had kept in a gunnybag. The `Khurpis' with which they had

scraped the grass was also with them at the time of

occurrence. The incident was reported to the police by Sheo

Deo Rai (PW-10) at Police Station Patori where he reached at

7.00 A.M., the distance from the place of the incident being

5 kms. He specifically stated that he had met the Inspector

of Police (PW-15) and told him the whole incident. He

stated in the examination-in- chief as follows : "After the

incident I went to the Police Inspector at 7.00 AM and gave

the information." In the cross-examination, he reiterated

these facts and stated as under : "On the day of incident,

I had gone to the Patori Police Station at about 7.00 AM. I

had gone to the Police Station on foot. Nobody was

accompanying me. I had gone alone. I had met the Police

Inspector. I had directly approached him that there had

taken place murder, please go.......Then I came alone." But

the Police Inspector, Haleshwar Prasad Singh (PW-15), who

was the Station Incharge of the Police Station, Patori on

2.6.1984 and had done the main part of the investigation of

the case, stated as under : "On 2.6.84, I was posted as

Incharge of Police Station, Patori. I came to know that a

person has been shot dead in Dhamaun Chour. I registered

the above information and proceeded towards Dhamaun Chour

along with ASI Mahesh Prasad Singh and Constable Ram Lokit

Singh. " He further stated as under : "On the day of

incident, Shiv Deo Rai did not give any information at the

Police Station. Even he did not meet me. On that day I had

not met him before 9.30 A.M..... At 8.15 I got a formal

information about the incident. This fact is not mentioned

in the Case Diary as to who gave the information. Even I do

not know his name. The person who had given the information

did not tell the name of the assailant." Haleshwar Prasad

Singh (PW-15), therefore, directly and effectively

contradicted Sheo Deo Rai (PW- 10), inasmuch as PW-10 stated

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that he had gone to the Police Station at 7.00 AM and

reported the matter to the Police Inspector, the latter,

namely, the Police Inspector, who also took up the

investigation of the case, stated that PW-10 had not come to

the Police Station nor had he met him there. But what is

certain, therefore, is that the Investigating Officer had

received the information at the Police Station that somebody

was shot dead at Dhamaun Chour. This information was

positively recorded by the Investigating Officer in the

General Diary, a copy of which has, unfortunately, not been

produced at the trial. The Investigating Officer further

stated in his statement that the fact as to who gave the

information is not mentioned in the Case Diary. The

Investigating Officer even pleaded ignorance of his name.

He further admits that the person who gave the information

did not tell the name of the assailant. What is also

certain is that though the information of commission of

crime was given to the Investigating Officer at 8.15 AM, the

name of the assailant was not disclosed. If this statement

of the Investigating Officer is scrutinised in the light of

the statement of Sheo Deo Rai (PW-10) that he had gone to

the Police Station at 7.00 AM and met the Investigating

Officer and informed him of the murder of the deceased,

Shambhu Rai, it would come out that the name of the

assailant was not disclosed at that time. So also, PW-10

did not know the name of the assailant and, therefore, he

would not be in a position to disclose the name to the

Investigating Officer at the Police Station, would become

clear from a further scrutiny of the evidence on record

which positively indicates that Sheo Deo Rai (PW-10), or for

that matter, Shatrughan Rai (PW- 16) and Ram Narain Rai

(PW-17) were not present at the spot. All the three

eye-witnesses, Sheo Deo Rai (PW-10), Shatrughan Rai (PW-16)

and Ram Narain Rai (PW-17) have stated that they had gone to

Dhamaun Chour along with the deceased for scraping grass.

They further stated that they had `khurpis' with them and

had scraped the grass for about half an hour. Sheo Deo Rai

(PW-10) further stated: "On that day for about half an hour

we collected the grass. We collected the grass in 5 Dhurs.

The rest of the three collected how much grass, I don't

know. They were collecting the grass again and again. That

field is of Keshu Rai. ........Whatever grass we had cut

that was kept by us in our respective Boras (gunny bags).

It was a summer season. So we kept our grass in the bags

and again started to cut the grass." He further stated : "I

had shown the field, from which I had cut the grass to the

police inspector. The other three persons who had cut the

grass had showed it to the police inspector. After

informing the police inspector when I came back at the place

of occurrence, many people had collected there......... At

that time, Khurpy and bags were there or not is not known to

me. Similarly, Shatrughan Rai (PW-16) and Ram Narain Rai

(PW-17) had also stated that they had gone to the field to

scrape grass. Ram Narain Rai (PW-17) positively stated that

he had shown the `Khurpi', `Chhitta' and the grass, which

was cut. Then he stated that he does not remember. He

further stated that the portion of the ground on which the

grass was cut was shown to the Police Inspector. Thus, the

presence of these three eye-witnesses at the spot is

justified on the basis of the grass, which had been scraped

by them before the incident had occurred and which had been

kept in the gunny-bags. If it was true that they were

present at the spot and had scraped the grass, the portion

of the plot from which the grass was scraped would be

visible to the naked eye. The `khurpis' and the gunny-bags

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in which the grass was collected would also have been

available there. But the Investigating Officer, who visited

the spot, stated that Sheo Deo Rai (PW-10) neither showed

him the `Bora' (gunny-bag) containing the grass nor the

place at which the grass was cut. He further stated that he

had not seen the grass to have been cut in the area of 5

Dhur. He further stated that he had not found any `khurpi'

at the spot. He, however, tried to explain this by saying

that the blood in large quantity had spread all over the

field and, therefore, it was not clear whether the grass was

cut or not. This explanation is not convincing as the blood

would not obliterate the evidence of the grass having been

cut from the field. If the grass had really been scraped as

stated by Shiv Deo Rai (PW-10), Shatrughan Rai (PW-16) and

Ram Narain Rai (PW-17) and collected by them in their

separate gunny-bags and `khurpis' were utilised for scraping

the grass, then the Investigating Officer, who visited the

spot on receiving the information about the commission of

the crime, would have noticed that portion of the land from

which the grass was scraped and would have also found the

gunny-bags and the `khurpis'. These circumstances clearly

indicate that the grass was not scraped nor was it collected

in the gunny- bags and, therefore, none of the

eye-witnesses, namely, Sheo Deo Rai (PW-10), Shatrughan Rai

(PW-16) or Ram Narain Rai (PW-17) was present at the spot

when Shambhu Rai was done to death. In this background, the

statement of Shiv Chander Rai (PW-2) becomes extremely

relevant. He stated that the incident had taken place at

about 4.30 AM and at that time he was present in his house

and had heard the noise that Shambhu Rai had been murdered.

On hearing the noise he went out and found at a distance of

about half a kilometer from his house that Shambhu Rai was

lying dead. He saw his neck having been cut. He stated in

the cross-examination that the blood was not flowing from

the body and it had stopped flowing. He further stated that

it was not within his knowledge as to how Shambhu Rai had

died. This witness, though not an eye-witness, is

nevertheless a prosecution witness. It appears that he was

produced to fix the place of occurrence, but in that process

he changed the time at which the occurrence had taken place

from 6.30 AM to 4.30 AM. Though we have already held that

none of the eye- witnesses was present at the spot or had

witnessed the occurrence, we may deal with another

submission of Mr. U.R. Lalit dealing with the presence of

the eye- witnesses at the spot. Learned counsel for the

appellants, Mr. U.R. Lalit, contended that the presence of

three eye- witnesses, namely, Sheo Deo Rai (P.W.10),

Shatrughan Rai (P.W. 16) and Ram Narain Rai (P.W.17), at

the spot, is doubtful for the reason also that though two of

them, namely, Shatrughan Rai (P.W.16) and Ram Narain Rai

(P.W.17), are the witnesses of inquest, they did not state

the names of the assailants while describing the cause of

death in the Inquest Report. This argument cannot be

accepted. Under Section 174 read with Section 178 of the

Code of Criminal Procedure, Inquest Report is prepared by

the Investigating Officer to find out prima facie the nature

of injuries and the possible weapon used in causing those

injuries as also the possible cause of death. In Podda

Narayana vs. State of A.P., AIR 1975 SC 1252 = 1975 (Supp.)

SCR 84 = (1975) 4 SCC 153, it was held by this Court that

the identity of the accused is outside the scope of Inquest

Report prepared under Section 174 Cr.P.C. In George vs.

State of Kerala, (1998) 4 SCC 605 = AIR 1998 SC 1376, it has

been held that the Investigating Officer is not obliged to

investigate, at the stage of inquest, or to ascertain as to

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who were the assailants. This Court has consistently held

that Inquest Report cannot be treated as substantive

evidence but may be utilised for contradicting the witness

of inquest. (See: Rameshwar Dayal vs. State of U.P., AIR

1978 SC 1558 = 1978 (3) SCR 59 = (1978) 2 SCC 518; Khujji @

Surendra Tiwari vs. State of M.P., AIR 1991 SC 1853 = 1991

(3) SCR 1 = (1991) 3 SCC 627 and Kuldip Singh vs. State of

Punjab, 1992 Crl.L.J. 3592 (SC) = AIR 1992 SC 1944 = (1992)

Supp. (3) SCC 1). The appellants, who are three in number,

had gone to the spot to commit the murder of Shambhu Rai

who, according to the prosecution story, was scraping grass

with three close relations, namely, Sheo Deo Rai (PW- 10),

Shatrughan Rai (PW-16) and Ram Narain Rai (PW-17). The

appellants, on reaching at the spot, gave out loudly that

they would commit the murder of Shambhu Rai. At that stage,

all the four would have immediately reacted and tried to

save Shambhu Rai, if not actually involving themselves into

a practical combat with the assailants. The absence of

injury on these three persons, who claim themselves to be

eye-witnesses is explained by all the three by saying that

the assailants gave out that they had come to commit the

murder of Shambhu Rai so as to wipe out the family of Awadh

Ram. The remaining persons, namely Sheo Deo Rai (PW-10),

Shatrughan Rai (PW-16) and Ram Narain Rai (PW-17) moved away

leaving Shambu Rai all alone who was shot at by Suresh Rai

and then given dagger blows by his co-appellants. This is

unbelievable that three of the persons who were scraping

grass with the deceased would meekly move away so as to

facilitate the killing of Shambhu Rai by the appellants.

Their conduct is unnatural. On an overall assessment of the

circumstances of the case, it, therefore, becomes apparent

that the murder of Shambhu Rai was reported to the Police at

7.00 AM on 2.6.1984, which was also noted in the General

Diary, and it was on this Report that the Investigating

Officer left for the place of occurrence where he did not

notice any evidence of the presence of Sheo Deo Rai (PW-10),

Shatrughan Rai (PW-16) and Ram Narain Rai (PW- 17) at the

time of the occurrence as the `khurpis' or the scraping of

grass or the collection of grass in gunny-bags was not

evidenced by their presence at the spot. After having done

the Inquest and after having prepared the Inquest Report,

the Investigating Officer recorded the statement of Sheo Deo

Rai (PW-10) and in that statement the names of the

appellants were introduced. Why this was done, is apparent

on account of the bitter enmity between the family of the

appellants and the family of the deceased, which is admitted

by all the three eye-witnesses. Relevant portion of the

statement of Sheo Deo Rai (PW-10) which indicates the

existence of enmity between the parties is reproduced below

: "7. Hari Har Rai is my Baba. He had four sons. They

are Avadh Rai, Ram Nandan Rai, Lilu Rai and Ram Narain Rai.

Shambhu is the son of Avadh Rai. Ram Nandan Rai had three

sons out of them I am elder and rest are my brothers. They

are Ram Naresh Rai and Ram Sureseh Rai. Lilu Rai has three

sons out of them the elder is Satrughan Rai, second is Beij

Rai and the third is Methuri Rai. In this case I myself,

Satrughan and Ram Narain. Satrughan is my step brother and

Ram Narain is my uncle. I will get the statement of

Satrughan recorded in this case as a Witness. He is not

present in the house. I do not know where he is at this

time. I cannot say as to whether there is a rape case

against him and he is absconder. 8. My Uncle Ram Narain

Rai is confined in Samastipur Jail. 9. I know Jagdeep Rai

son of Ram Soorat Rai who are my villager. Jagdeep has

filed a false case against we persons. This case of the

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time prior to this case. I do not know as to how many

defendants we are in the case of Jagdeep. But the witnesses

of this case are the defendants in that case. The charge

sheet has been submitted in that case and it is pending in

the Court. Jagdeep Rai is present here. He is lame. He

cannot walk properly. His son Jayantri Rai is the defendant

in this case. The accused Pradeep Rai had filed a case

against me and the witness Ram Narain prior to this case.

In the present case, Pradeep Rai and his son Suresh Rai are

the defendants. 10. The witness of this case is the real

brother of Satrughan Rai. Baijnath Rai who filed the case

against the defendants Pradeep Rai, Suresh Rai and Jayantri

prior to the instant case. My uncle Ram Narain Rai had

filed the case against these defendants. Ram Narain Rai is

the witness in this case." From the above, it will be seen

that there were cases and cross-cases pending against each

other. In this backdrop, it was but natural that the

appellants would have been implicated at the instance of

Sheo Deo Rai (PW-10) in the incident which he had not

himself witnessed nor had it been witnessed by Shatrughan

Rai (PW-16) and Ram Narain Rai (PW-17). The entire

investigation was wholly tainted and the appellants have

been implicated in the case on the collective mischief of

the informant, Sheo Deo Rai (PW-10) and the Investigating

Officer, Haleshwar Prasad Singh (PW-15). It was for these

reasons that the appeal was allowed by us by our short order

dated 15.3.2000. ...................J ( S. Saghir Ahmad )