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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 )