Full Judgment Text
2025 INSC 1382
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 305 OF 2024
SURESH SAHU & ANOTHER ….APPELLANT(S)
VERSUS
THE STATE OF BIHAR
(NOW JHARKHAND) ….RESPONDENT(S)
J U D G M E N T
Mehta, J.
1. Heard.
1 rd
2. The appellants herein faced trial before the 3
2
Additional Judicial Commissioner, Ranchi in
Sessions Trial No. 128 of 1991. Vide judgment dated
th
30 August, 1994, the learned trial Court convicted
the accused-appellants for the offences punishable
Signature Not Verified
1
Hereinafter, referred to as the “accused-appellants”.
2
Hereinafter, referred to as the “trial Court”.
Digitally signed by
NEETU KHAJURIA
Date: 2025.12.04
17:08:49 IST
Reason:
1
under Section 120B, Section 302 and Section
3
302/149 of the Indian Penal Code, 1860 . The
accused-appellants were sentenced to undergo
imprisonment for life for the aforesaid offences.
3. Being aggrieved by their conviction and
sentence, the accused-appellants preferred Criminal
Appeal (DB) No. 150 of 1994 before the High Court of
4
Jharkhand at Ranchi . During the pendency of the
appeal, the sentences awarded to the accused-
appellants by the trial Court were suspended and
they were ordered to be released on bail. The afore-
stated appeal of the accused-appellants came to be
dismissed by the High Court vide judgment dated
th
10 February 2023, wherein the High Court modified
the conviction to one under Section 302/34 IPC and
imposed a fine of Rs. 2,000 on the accused-
3
For short, “IPC”.
4
Hereinafter, referred to as the “High Court”.
2
appellants, in addition to the life imprisonment
already awarded by the trial Court. The said
judgment is the subject matter of challenge in the
present appeal.
st
4. The accused-appellants surrendered on 1 May,
2023 and currently are in custody.
Brief Facts:-
5. Briefly stated, the facts relevant and essential
for disposal for the appeal are noted hereinbelow.
6. As per the initial case of prosecution, the
informant, Rameshwar Sahu (PW-3), along with his
5
son, Gajendra Prasad Gupta , had left his home on
th
11 May, 1990 at about 3:00 p.m. to sell sweets at
the Jatra Mela held at village Jhinjhari. Gajendra set
up his stall and commenced selling sweets. Three
persons approached his stall and demanded quarter
kg sweets. Gajendra provided the sweets and asked
5
For short “Gajendra”.
3
for payment. The said individuals allegedly refused to
pay, whereupon Gajendra declined to give them the
sweets. An altercation ensued, during the course of
which the three persons threatened Gajendra, stating
that they would accost and kill him on the way back
home. The quarrel was pacified by Lalu Ahir, the
watchman of Mandar Police Station, and Etwa
Oraon, a resident of Sakarpada. Thereafter, the
informant and his son wound up the stall and left for
their home. It is alleged that when they reached
Jhinjhri Dam, the same three persons intercepted
them by inserting a stick into the front wheel of
Gajendra’s bicycle, causing him to fall. Gajendra
attempted to run, but the assailants chased him
down, and thereafter assaulted him with wooden
sticks, chains, and hockey sticks. When the
informant tried to intervene, the assailants allegedly
threatened him as well, warning that he too would be
4
killed if he did not flee. The assailants continued
beating Gajendra, causing injuries to his forehead,
chest, and arms. After the assault, the accused
persons fled, whereafter the informant and others
proceeded to check upon Gajendra, who was first
taken in an injured condition to Mandar Hospital,
wherefrom the attending doctor referred him to
R.M.C.H., Ranchi. Gajendra was admitted and
underwent treatment at R.M.C.H., Ranchi. However,
th
on 12 May, 1990 at about 8:00 a.m., he succumbed
to his injuries. The informant alleged that he, as well
as watchman Lalu Ahir and Etwa Oraon, could
identify the assailant upon seeing them.
7. The aforesaid version, in the form of the
Fardbeyan (Exh. 1) of the informant Rameshwar
Sahu (PW-3), was recorded by ASI R. Paswan of
th
Bariatu Police Station on 12 May 1990 at R.M.C.H.,
Ranchi. On the basis of the said Fardbeyan (Exh. 1),
5
th
FIR No. 1858 dated 12 May 1990 was registered and
forwarded to Mandar Police Station for requisite
follow up action.
8.
It seems that the informant (PW-3) was not
satisfied with the aforesaid report and suspected
some foul play and thus, he gave a written report
(Exh. 5) to the officer in Charge of Mandar Police
th
Station on 13 May, 1990 alleging inter alia that he
had gone to the Jatra fete (mela) at village Jhinjri
along with his son, Gajendra, for selling sweets. After
selling sweets, they left for their home in the evening
at about 7:00 p.m. along with Ashok Sahu (son of
Khakhandu Sahu), Khakhandu Sahu (son of Kuchu
Sahu), and Jatan Sahu (son of Fuchai Sahu). When
they had reached Dumphu at around 7:30 p.m., four
to five men came in front of them armed with wooden
sticks and hockey sticks. One of them inserted a stick
into the wheel of Gajendra’s bicycle, due to which he
6
fell down. The assailants caught hold of Gajendra and
dragged him towards a nearby pit. When the
informant and his companions tried to follow, the
assailants threatened to kill them as well, due to
which they stepped back out of fear. It is stated that
the assailants then started beating Gajendra who
was heard shouting “Don’t beat me, leave me Aditya,
leave me Suresh.” Being old, infirm and having weak
eyesight, the informant could not save his son. When
Gajendra’s voice fell silent and the assailants went
away, the informant and his companions went to the
spot and found Gajendra lying on the pathway
soaked in blood. Heavy bleeding was visible from his
forehead and injuries on several other parts of his
body. On being asked, Gajendra stated that Suresh
and Aditya, along with five or six unknown persons,
had beaten him, and he kept beseeching them in the
words “don’t kill me Aditya, don’t kill me Suresh.”
7
Gajendra was lifted from the spot and was taken to
th
R.M.C.H., Ranchi, where he died on 12 May, 1990.
After post-mortem examination, the dead body was
brought home and cremated. The informant further
stated that there was a case pending between his son
and his nephews, Suresh Sahu and Aditya Sahu,
relating to employment in lieu of land acquisition,
and that on account of this enmity, Suresh and
Aditya, along with others, assaulted his son with
wooden sticks and hockey sticks and he died because
of the injuries received in the incident.
9. On the basis of this written report, another FIR
th
being Case No. 43/1990 dated 13 May, 1990 came
to be registered at Mandar Police Station.
10. Investigation of the case was assigned to the
very same ASI R. Paswan who had recorded
Fardbeyan (Exh. 1). After concluding the
investigation, chargesheet came to be filed against
8
the accused-appellants and the case was committed
to the trial Court. Charges were framed against the
accused persons who pleaded not guilty and claimed
trial. The prosecution examined six witnesses and
exhibited five documents to prove its case. The
statements of the accused-appellants were recorded
under Section 313 of Code of Criminal Procedure,
6
1973 (Section 351 of Bharatiya Nagarik Suraksha
7
Sanhita ) which make a very interesting reading and
are reproduced hereinbelow verbatim for ready
reference: -
“ (A) Suresh Prasad Sahu
The examination of Suresh Prasad Sahu aged
about 35 years, taken before me, Bal Govind
rd th
Prasad 3 Judicial Magistrate on 16 Day of
December 1993, in the Hindi language.
My name is Suresh Prasad Sahu, My
father’s/husband’s name is Shri Bigal Sahu. My
age is 35 years. I am by religion Hindu, My
nationality is Indian and I belong to Schedule
Caste/Tribe. I am by occupation salaried. My home
6
For short, “CrPC”.
7
For short, “BNSS”.
9
is at Mauza Kanbitha Police Station Mandar
District Ranchi.
Question 1 – Witnesses against you allege that
on May 11, 1990, Jhinjhari Chauraha, Jhinjhari
Village police station, Mandar district Ranchi,
was a member of an illegal party whose objective
was to kill Gajendra Prasad Gupta. What do you
have to say?
Answer – It is wrong.
Question 2 – It is also evidence that on that day
and time you and your friend Aditya Prasad
Sahu has killed Gajendra Prasad Gupta. What do
you have to say?
Answer – It is wrong.
Question 3 – What else do you have to say?
Answer – I was on duty on the day of the
incident. I have been implicated in the enmity.
I will give witness in the defence.
The above examination was taken in my presence
and hearing, and contents a full and true account
of the statements made by the accused. It was read
over to the accused or interpreted to him in the
language which he understands and was admitted
by him to be correct.”
xxxxxxx
(B) Aditya Prasad Sahu
“The examination of Aditya Prasad Sahu aged
about 35 years, taken before me, Bal Govind
rd th
Prasad 3 Judicial Magistrate, on 16 Day of
December 1993, in the Hindi language.
10
My name is Aditya Prasad Sahu, My
father’s/husband’s name is Shri Laxman Sahu. My
age is 35 years. I am by religion Hindu, My
nationality is Indian and I belong to Schedule
Caste/Tribe. I am by occupation salaried. My home
is at Mauza Kanbitha Police Station Mandar
District Ranchi.
Question 1 – There is an evidence over you
allege that on May 11, 1990, Jhinjhari
Chauraha, Jhinjhari Village police station,
Mandar district Ranchi, was a member of an
illegal party whose aim was to kill Gajendra
Prasad Gupta. What do you have to say?
Answer – It is a lie.
Question 2 – It is also evidence that on that day
and time you and your friend Suresh Prasad
Sahu has killed Gajendra Prasad Gupta. What do
you have to say?
Answer – It is a lie.
Question 3 – What else do you have to say in
defence?
Answer – I was on my duty on the day of the
incident. My family had enmity with the family
of the deceased, so I have been wrognly
implicated. I will give witness in the defence.
The above examination was taken in my presence
and hearing, and contents a full and true account
of the statements made by the accused. It was read
over to the accused or interpreted to him in the
language which he understands and was admitted
by him to be correct.”
(Emphasis Supplied)
11
11. Seven witnesses were examined in defence, two
of whom, as per the written report (Exh. 5), namely,
Jatan Sahu (DW-1) and Khakhandu Sahu (DW-2),
were accompanying the informant and the deceased
Gajendra, at the time when the latter was allegedly
assaulted. Both these witnesses (DW-1 & DW-2) did
not implicate the accused-appellants in the crime
and rather stated that there was a fight between
Gajendra and some tribal people over selling of
sweets. Gajendra was beaten up and became
unconscious, but the witnesses could not identify the
assailants. They also stated that Aditya Sahu and
Suresh Sahu were not seen in the Jatra fair.
12. At this stage, a very important fact that needs
to be noted is that the Investigating Officer ASI R.
Paswan who recorded the Fardbeyan (Exh. 1) and
investigated the case was not examined by the
prosecution.
12
13. Be that as it may, the accused-appellants stand
convicted and their appeals have been rejected in the
manner stated above, upon which the instant appeal
by special leave has been laid before us for
consideration.
Submissions on behalf of the accused-appellants:-
14. Learned Counsel representing the accused-
appellants advanced the following submissions for
assailing the impugned judgment and seeking
acquittal for the accused-appellants:-
a) That the Fardbeyan (Exh. 1) of the informant,
Rameshwar Sahu (PW-3), was the actual first
information report recorded by ASI R. Paswan (the
Investigating Officer) and the High Court committed
grave error in discarding the said report and treating
th
the subsequent written report (Exh. 5) dated 13
May, 1990 to be the actual first information report of
the incident. As per learned counsel, the said report
13
would be hit by Section 161 CrPC (Section 180
BNSS).
b) That the evidence of PW-3, the first informant is
highly unnatural and full of embellishments, and he
falls in the category of a totally unreliable witness.
The witness failed to identify the accused at the time
of the incident even though he claims to be an eye
witness to the incident.
c) That the version of the informant (PW-3), that
his son, Gajendra, shouted out the names of the
assailants to be Aditya and Suresh while he was
being assaulted is absolutely unbelievable. Had the
witness observed anything of that sort, he would have
immediately disclosed the same to the ASI R. Paswan,
who recorded the Fardbeyan (Exh. 1) at the R.M.C.H.,
th
Ranchi on 12 May, 1990.
d) That the prosecution theory that Tapeshwari
Kumari (PW-1) and Saroj Kumari (PW-2), being the
14
sisters of the deceased, heard the deceased making
an oral dying declaration when he was brought home
after being assaulted is cooked up and unbelievable.
The statements of these witnesses under Section 161
CrPC (Section 180 BNSS) were admittedly recorded
after more than one and a half month of the incident.
The rank silence of these witnesses being the close
relatives, in disclosing this important fact to the
police at the earliest possible opportunity completely
demolishes their credibility.
e) That grave prejudice has been caused to the
accused owing to the perfunctory manner in which
their statements under Section 313 CrPC (Section
351 BNSS) were recorded. The High Court failed to
consider this vital aspect of the matter and hence the
impugned judgment is vitiated as having been passed
in ignorance of this crucial issue which goes to the
root of the matter.
15
f) That the material witness ASI R. Paswan who
recorded the Fardbeyan (Exh. 1) and conducted the
investigation of the case was not examined at the
trial, and no explanation is forthcoming for his non-
examination. He would have been the best person to
throw light on the inconsistency between the
Fardbeyan (Exh. 1) and the written report (Exh.5).
The non-examination of the said police officer has
caused grave prejudice to the defence and as such,
adverse inference deserves to be drawn against the
prosecution.
g) That Jatan Sahu (DW-1) and Khakandu Sahu
(DW-2) who were named in the written report (Exh.5)
as being the witnesses present at the crime scene
along with the informant (PW-3) and the deceased,
were not examined by the prosecution. Both these
witnesses were examined by the defence as DW-1 and
DW-2 and they have categorically stated that the
16
accused-appellants were not the assailants. Neither
the trial Court nor the High Court duly considered
the effect of the evidence of these two eye-witnesses
on the veracity of the prosecution case. If at all, the
prosecution was desirous to seek corroboration for
the wavering testimony of the first informant (PW-3),
these two witnesses (DW-1 and DW-2) would have
been the best placed persons to provide such
corroboration.
15. On these grounds, learned Counsel for the
accused-appellants, implored the Court to set aside
the impugned judgment, acquit the accused-
appellants of the charges while accepting the appeal.
Submissions on behalf of respondent-State: -
16. Per contra , learned Counsel representing the
State, supported the impugned judgment. He urged
that both the Courts below, for convicting the
accused appellants for the charge of murder, have
17
recorded concurrent findings of facts after due
appreciation of evidence on record. The finding of
facts so recorded by the trial Court and affirmed by
the High Court do not suffer from any infirmity
warranting interference by this Court in exercise of
jurisdiction under Article 136 of the Constitution of
India. He, therefore, sought dismissal of the appeal.
Discussion:-
17. We have given our thoughtful consideration to
the submissions advanced at bar and shall deal with
the same while reappreciating the evidence available
on record. We have also gone through the impugned
judgment of the High Court as well as the judgment
of the trial Court and carefully reanalyzed the
evidence on record.
A. Defective Examination of the Accused Under
Section 313 CrPC (Section 351 BNSS)
18
18. It is evident from the record that only three
questions were put to each of the accused in their
examination under Section 313 CrPC (Section 351
BNSS). These questions were framed in an extremely
generic and mechanical manner, without articulating
any of the specific incriminating circumstances
appearing in the prosecution evidence.
19. The purpose of recording the statement of an
accused under Section 313 CrPC (Section 351 BNSS)
is to make the accused aware of the circumstances
as appearing against him in the prosecution case and
to seek his explanation for the same. For this
purpose, the accused must be informed of each and
every incriminating circumstance which the
prosecution intends to rely upon for bringing home
the guilt of the accused. Omission to put material
circumstances to the accused in the statement under
Section 313 CrPC (Section 351 BNSS) would cause
19
grave prejudice and may, in a given case, even prove
fatal to the case of the prosecution. Of course, the
appellate Court can rectify this error by requiring
that a fresh statement under Section 313 CrPC
(Section 351 BNSS) be recorded for removing the
lacunae, if any, in this procedure. In the present case,
on going through the statements of both the accused
persons recorded by the trial Court under Section
313 CrPC (Section 351 BNSS) ( supra ), we find that
these statements are almost a reproduction of the
language of the charge and, in no manner, convey to
the accused persons the incriminating
circumstances/evidence produced by the
prosecution so as to indict them for the crime. This
defect goes to the root of the matter.
20. In this regard, we may refer to the judgment of
this Court in the case of Ashok v. State of Uttar
20
8
Pradesh , wherein a three-Judge Bench of this Court
observed as follows: -
“14. Now, we come to the appellant's statement,
recorded per Section 313 of the CrPC. Only three
questions were put to the appellant. In the first
question, the names of ten prosecution witnesses
were incorporated, and the only question asked to
the appellant was what he had to say about the
testimony of ten prosecution witnesses. In the
second question, all the documents produced by
the prosecution were referred, and a question was
asked, what the appellant has to say about the
documents. In the third question, it was put to the
appellant that knowing the fact that the victim
belongs to a scheduled caste, he caused her death
after raping her and concealed her dead body, and
he was asked for his reaction to the same. What
PW-1 and PW-2 deposed against the appellant
was not put to the appellant. The contents of
the incriminating documents were not put to
the appellant.
15. In the case of Raj Kumar , in paragraph 17, this
Court has summarised the law laid down by this
Court from time to time on Section 313 of the CrPC.
Paragraph 17 reads thus:
“17. The law consistently laid down by this Court
can be summarized as under:
(i) It is the duty of the Trial Court to put
each material circumstance appearing in the
evidence against the accused specifically,
distinctively and separately. The material
8
2024 INSC 919
21
circumstance means the circumstance or the
material on the basis of which the prosecution
is seeking his conviction;
(ii) The object of examination of the accused
under Section 313 is to enable the accused to
explain any circumstance appearing against him in
the evidence;
(iii) The Court must ordinarily eschew
material circumstances not put to the accused
from consideration while dealing with the case
of the particular accused;
(iv) The failure to put material
circumstances to the accused amounts to a
serious irregularity. It will vitiate the trial if it
is shown to have prejudiced the accused;
(v) If any irregularity in putting the material
circumstance to the accused does not result in
failure of justice, it becomes a curable defect.
However, while deciding whether the defect can
be cured, one of the considerations will be the
passage of time from the date of the incident;
(vi) In case such irregularity is curable, even
the appellate court can question the accused on the
material circumstance which is not put to him; and
(vii) In a given case, the case can be
remanded to the Trial Court from the stage of
recording the supplementary statement of the
concerned accused under Section 313 of CrPC.
(viii) While deciding the question whether
prejudice has been caused to the accused
because of the omission, the delay in raising the
contention is only one of the several factors to
be considered.”
In a given case, the witnesses may have deposed in
a language not known to the accused. In such a
22
case, if the material circumstances appearing in
evidence are not put to the accused and explained
to the accused, in a language understood by him,
it will cause prejudice to the accused.
16. In the present case, there is no doubt that
material circumstances appearing in evidence
against the appellant have not been put to him.
The version of the main prosecution witnesses
PWs-1 and 2 was not put to him. The stage of
the accused leading defence evidence arises
only after his statement is recorded under
Section 313 of the CrPC. Unless all material
circumstances appearing against him in evidence
are put to the accused, he cannot decide whether
he wants to lead any defence evidence. In this case,
even the date and place of the crime allegedly
committed by the appellant were not put to the
appellant. What was reportedly seen by PW-2 was
not put to the appellant in his examination.
Therefore, the appellant was prejudiced. Even
assuming that failure to put material to the
appellant in his examination is an irregularity,
the question is whether it can be cured by
remanding the case to the Trial Court.
17. The date of occurrence is of 27th May 2009.
Thus, the incident is fifteen and a half years old.
After such a long gap of fifteen and half years,
it will be unjust if the appellant is now told to
explain the circumstances and material
specifically appearing against him in the
evidence. Moreover, the appellant had been
incarcerated for about twelve years and nine
months before he was released on bail.
Therefore, considering the long passage of time,
23
there is no option but to hold that the defect
cannot be cured at this stage. Even assuming
that the evidence of PW-2 can be believed, the
appellant is entitled to acquittal on the ground
of the failure to put incriminating material to
him in his examination under Section 313 of
the CrPC. We are surprised to note that both the
Trial Court and High Court have overlooked
noncompliance with the requirements of
Section 313 of the CrPC. Shockingly, the Trial
Court imposed the death penalty in a case which
ought to have resulted in acquittal. Imposing
capital punishment in such a case shocks the
conscience of this Court.”
(Emphasis supplied)
21. Recently, this Court in the case of Ramji
9
Prasad Jaiswal v. State of Bihar , reiterated the
position of law and held as follows: -
“35 . After surveying the law on this print, let us
revert back to the facts of the present case. The
manner in which the trial court had recorded the
statements of the appellants under Section 313
CrPC was not at all in tune with the requirements
5 (2025) 2 SCC 381 31 of the said provision as
explained by this Court as discussed supra.
36. Four questions generally were put to the
appellants, that too, in a most mechanical
manner. These questions did not reflect the
specific prosecution evidence which came on
9
(2025 INSC 738)
24
record qua the appellants. As all the
incriminating evidence were not put to the
notice of the appellants, therefore, there was a
clear breach of Section 313 CrPC as well as the
principle of audi alteram partem. Certainly, this
caused serious prejudice to the appellants to
put forth their case. Ultimately, such evidence
were relied upon by the court to convict the
appellants.
37. Therefore, there is no doubt that such
omission, which is a serious irregularity, has
completely vitiated the trial. Even if we take a
more sanguine approach by taking the view that
such omission did not result in the failure of
justice, it is still a material defect albeit
curable. In Raj Kumar (supra), this Court
highlighted that while deciding whether such
defect can be cured or not, one of the
considerations will be the passage of time from
the date of the incident.
38. As we have already noted, the period during
which the offence was allegedly committed was
from September, 1982 to December, 1982. Trial
was concluded on 29.05.2006. Nineteen years
have gone by since then. At this distant point
of time, instead of aiding the cause of justice, it
will lead to miscarriage of justice if the case qua
the two appellants are remanded to the trial
court to restart the trial from the stage of
recording the statements of the accused
persons under Section 313 CrPC. In such
circumstances, we are of the considered opinion
that it is neither possible nor feasible to order
such remand. Consequently, appellants are
25
entitled to the benefit of doubt because of such
omission in the recording of their statements
under Section 313 Cr.P.C. since the trial court
had relied on the evidence adverse to the
appellants while convicting them .”
(Emphasis supplied)
22. It is pertinent to note that the High Court, in the
impugned judgment, has not even discussed the
perfunctory manner in which the statements of the
accused-appellants under Section 313 CrPC (Section
351 BNSS) were recorded (supra) .
23. Looking to the highly laconic and defective
manner in which the statements of the accused-
appellants were recorded under Section 313 CrPC
(Section 351 BNSS) (supra) , we could have remanded
the matter to the trial Court for re-recording the said
statements and for delivering a fresh judgment.
However, considering the fact that more than 35
years have passed since the incident took place, we
feel that it would be nothing short of an exercise in
26
futility to direct such remand. We have, therefore,
minutely sifted through the evidence on record and
shall analyze the same to adjudicate as to whether
the conviction of the accused-appellants is justified
in the facts, circumstances and evidence as available
on record.
B. Evaluation of the Two Reports and Non-
Examination of the Investigating Officer
24. The High Court, while dealing with the issue of
th
two FIRs, held that the Fardbeyan (Exh. 1) dated 12
May, 1990 was totally denied by the informant (PW-
3) and, therefore, the same could not be treated to be
the actual First Information Report. It was further
th
held that the written information (Exh. 5) dated 13
May, 1990, the contents whereof were proved by the
maker (PW-3), was the actual FIR of the incident. For
arriving at this conclusion, the High Court, observed
that merely because the informant, Rameshwar Sahu
27
(PW-3), admitted his signatures on the Fardbeyan
(Exh. 1), the same could not, by itself, establish it to
be the FIR of the incident. The explanation offered by
the informant (PW-3) that his brothers, Laxman and
Bigan, took his signatures on the document by
keeping him into dark and misleading him, was
accepted to be justifiable, and on this unconvincing
premise, the FIR based on the Fardbeyan (Exh. 1)
was excluded from consideration.
25. However, we find this approach of the High
Court to be quite perfunctory and unacceptable on
the face of record. We may note that the Farbdeyan
(Exh. 1) as well as the formal FIR (Exh. 5) were both
recorded and acknowledged by the same police officer
ASI R. Paswan, who had also conducted the
investigation of the matter. Both documents contain
facts which could not have been within the
knowledge of anyone other than the informant,
28
Rameshwar Sahu (PW-3). Indisputably, the
informant signed both the reports. If, at all, the
prosecution was desirous of questioning the veracity
of the Fardbeyan (Exh.1), on the ground of
tampering/undue influence, it was absolutely
imperative for it to have examined the Investigating
Officer ASI R. Paswan in evidence. However, the
prosecution neither made any effort nor offered any
explanation for non-examination of the most crucial
witness, i.e., the Investigating Officer ASI R. Paswan.
Had ASI R. Paswan been examined on oath, the
genuineness or otherwise of the Fardbeyan (Exh. 1)
could have been duly tested. Non-examination of a
material witness would give rise to adverse inference
and the benefit thereof would normally go to the
defence unless of course a satisfactory explanation
for the omission was offered.
29
26. No such explanation having been offered, there
is no escape from the conclusion that the withholding
of the witness was a deliberate attempt by the
prosecution to cover up the crucial flaw in its case.
27. This Court in Harvinder Singh @ Bachhu v.
10
State of Himachal Pradesh has held that
deliberate withholding of material witnesses by the
prosecution would destroy its credibility, leading the
Court to draw adverse inference. It was observed as
follows:-
“24. Failure on the part of the prosecution in not
examining a witness, though material, by itself
would not vitiate the trial. However, when facts
are so glaring and with the witnesses available,
particularly when they are likely to give a
different story, the Court shall take adequate
note of it. When a circumstance has been
brought to the notice of the Court by the
defense and the Court is convinced that a
prosecution witness has been deliberately
withheld, as it in all probability would destroy
its version, it has to take adverse notice.
Anything contrary to such an approach would
be an affront to the concept of fair play. In
10
2023 SCC OnLine SC 1347, 2023 INSC 907.
30
Takhaji Hiraji v. Thakore Kubersing Chamansing,
(2001) 6 SCC 145,
“19. So is the case with the criticism levelled
by the High Court on the prosecution case
finding fault therewith for non-examination
of independent witnesses . It is true that if a
material witness, who would unfold the
genesis of the incident or an essential part
of the prosecution case, not convincingly
brought to fore otherwise, or where there
is a gap or infirmity in the prosecution
case which could have been supplied or
made good by examining a witness who
though available is not examined, the
prosecution case can be termed as
suffering from a deficiency and
withholding of such a material witness
would oblige the court to draw an adverse
inference against the prosecution by
holding that if the witness would have
been examined it would not have
supported the prosecution case. On the
other hand if already overwhelming evidence
is available and examination of other
witnesses would only be a repetition or
duplication of the evidence already adduced,
non-examination of such other witnesses
may not be material. In such a case the court
ought to scrutinise the worth of the evidence
adduced. The court of facts must ask itself —
whether in the facts and circumstances of
the case, it was necessary to examine such
other witness, and if so, whether such
witness was available to be examined and yet
was being withheld from the court. If the
answer be positive then only a question of
31
drawing an adverse inference may arise. If
the witnesses already examined are reliable
and the testimony coming from their mouth
is unimpeachable the court can safely act
upon it, uninfluenced by the factum of non-
examination of other witnesses…”
(Emphasis supplied)
28. In the light of the above principle, the failure of
the prosecution to examine ASI R. Paswan, the police
officer who recorded the Fardbeyan (Exh. 1) and
registered the formal FIR (Exh. 5), assumes critical
significance. The prosecution’s failure to produce this
material witness for deposition necessarily attracts
an adverse inference. Rank failure of the prosecution
to explain the circumstances under which the
Fardbeyan (Exh. 1) was recorded and by avoiding to
produce the scribe of the vital document i.e. ASI R.
Paswan, gives the defence a right to claim grave
prejudice and the prosecution cannot be allowed to
take advantage of its own follies.
32
29. The Fardbeyan (Exh. 1) sets out minute details
of the incident and also takes note of the fact that
after the incident, when Gajendra had fallen down
injured, the informant (PW-3) along with his
companions, took him to the Mandar Hospital for
treatment, from where the injured was referred to
R.M.C.H., Ranchi. Hence, the reasoning given by the
High Court for discarding the Fardbeyan (Exh. 1) and
not treating it to be the actual First Information
Report is patently erroneous and unacceptable on the
face of record. It may be noted that in the said
Fardbeyan (Exh. 1), the informant (PW-3) did not
mention the name of any of the assailants. Hence,
once the Fardbeyan (Exh. 1) is treated to be the
actual First Information Report of the incident, this
omission assumes great significance in evaluating
the prosecution’s case. Consequently, the
subsequent report (Exh. 5) could not be treated to be
33
anything other than a statement under Section 161
CrPC (Section 180 BNSS).
C. Credibility of the Informant and
Inconsistencies in His Statements
th
30. In the first report dated 12 May, 1990 based
upon the Fardbeyan (Exh. 1), there is a clear
reference of two incidents, the first of which took
place when the deceased Gajendra was selling sweets
in the fair, and the second, when the informant (PW-
3) along with his son and other companions were
returning home. In the second report (Exh. 5) dated
th
13 May, 1990, the informant completely changed
the version and did not make any reference of the first
incident. For the second incident, he tried to rope in
the accused-appellants claiming that his son, while
being assaulted, was shouting “Do not beat me, leave
me Aditya, leave me Suresh”. This belated theory
projected in the subsequent report (Exh. 5), on the
34
face of the record seems to be a sheer embellishment
introduced by the informant at a belated stage for
oblique motive of implicating the accused-appellants
in the case.
31. This theory projected in subsequent report
(Exh. 5) was further harped upon in the sworn
testimony of the informant, Rameshwar Sahu (PW-3),
recorded at the trial. In our opinion, this is a clear
embellishment which has been put forth under legal
advice to overcome the effect of omission of names of
the accused in the original report registered on the
basis of Fardbeyan (Exh. 1). The High Court, while
considering the impact of this material omission, and
the plea of the accused claiming adverse inference
based on the fact of non-examination of the
Investigating Officer, recorded the following findings:-
“43. The learned senior counsel for the
appellants also contended that in this case, the
I.O. was not examined and same is fatal to the
prosecution case. More so, the very first fard
35
beyan was also suppressed and the F.I.R. was
not lodged. All these circumstances could have
been explained by the I.O. and his non-
examination is fatal to the prosecution case.
44. Admittedly, the I.O. was not examined on
behalf of the prosecution in this case. Non-
examination of the I.O. is not found fatal keeping
in view 'the facts and circumstances of the case.
So far as the place of occurrence is concerned,
there is no dispute in regard to the place of
occurrence. The only dispute is raised on the
issue that the assailants were the unknown
persons and name of the appellants were
mentioned by the informant on account of
animosity.
45. In this case whether the appellants were
falsely implicated in this case on account of
animosity is to be decided in view of the
testimony of the informant and other
corroborating evidence to that effect. P.W.-3
Rameshwar Sahu and other witnesses who were
examined before the trial court in regard to the
fact that there is no contradiction in their
testimony given before the court and their
statements recorded by the I.O. under Section
161 Cr.P.C. as well as the statement of this
witness P.W.-3 Ramehswar Sahu which was
recorded under Section 164 Cr.P.C. before the
Magistrate and the same are also proved by P.W.-
4 B.K. Singh, Judicial Magistrate.
Certainly, the presence of the I.O. is
necessary in order to show the contradiction in
the testimony of the witnesses, if the same is
brought out during cross-examination of the
witnesses or if there is recovery of any article, the
examination of the I.O. was necessary. Keeping
in view the facts and circumstances and also the
evidence on record, the non-examination of the
I.O. is not found fatal to the prosecution case. ”
36
32. Admittedly, litigation was going on between the
deceased Gajendra and the accused-appellants in
relation to the grant of employment, pursuant to the
acquisition of the family lands by the C.C.L. This
ongoing litigation, in our opinion, gave a strong
motive to the complainant party to implicate the
accused-appellants in the crime for settling the
scores.
33. Another important and vital factor which needs
to be noted is that the informant, Rameshwar Sahu
(PW-3), did not mention in the subsequent report
(Exh. 5) that anyone had taken his signatures on a
blank paper on which the Fardbeyan (Exh. 1) was
written. Had there been a semblance of truth in this
allegation, the informant would definitely have
mentioned in the subsequent report (Exh. 5) that his
brothers, Laxman and Bigan, had taken his
signatures on a blank sheet of paper. The omission
37
to disclose such a material fact at the earliest
opportunity renders the belated explanation wholly
unconvincing and bereft of substance.
34.
Hence, we do not subscribe to the observations
made and finding recorded by the High Court that the
Fardbeyan (Exh. 1) was not the actual FIR of the
incident.
35. We are convinced that the prosecution is guilty
of superseding the actual first information report of
th
the incident i.e. (Exh. 1) dated 12 May, 1990 and
th
replacing it by subsequent report (Exh. 5) dated 13
May, 1990, which incorporated an
improved/exaggerated version, to be specific, by
nominating the accused-appellants for the assault
made on the deceased. The view taken by the trial
Court and affirmed by the High Court that the first
report based on the Fardbeyan (Exh. 1) was written
out by keeping the informant in dark, is unacceptable
38
looking to the material available on record and the
discussion made supra .
36. It can be presumed that the Fardbeyan (Exh.1)
must have been scribed by the police officer ASI R.
Paswan who also endorsed the same at the R.M.C.H.,
Ranchi. There could not have been any reason for the
police officer, ASI R. Paswan to not faithfully record
the Fardbeyan (Exh. 1) and leave out the names of
the accused had the informant made such
revelations to him. In this background, non-
examination of the Investigating Officer ASI R.
Paswan, who recorded the vital documents i.e.
Fardbeyan (Exh. 1) and the subsequent report (Exh.
5) gains even more significance and is fatal to the
prosecution case. The informant (PW-3) was put a
pertinent question in his cross-examination
regarding the allegation that his brothers Laxman
and Bigan had taken his signatures on the
39
Fardbeyan (Exh. 1). The witness admitted that he
did not state this at the Mandar Police Station.
Furthermore, this fact also does not find mention in
both his statements recorded under Section 164
CrPC (Section 183 BNSS). Thus, the conclusion
drawn by the High Court casting a doubt on the
Fardbeyan (Exh. 1) and not treating it to be the actual
FIR of the incident is contrary to the evidence
available on record and cannot be accepted.
37. Another significant loophole in the prosecution
case is borne out from the two statements of the
informant, Rameshwar Sahu (PW-3), recorded under
Section 164 CrPC (Section 183 BNSS). In his first
th
statement recorded on 19 May, 1990, the informant
alleged that the incident took place after darkness
had set in. He was carrying a lantern. Suresh pushed
him down and broke the lantern. His son took the
name of Suresh and shouted that he should be
40
spared. Significantly, in this statement, the name of
the accused Aditya was not mentioned. It was only in
the second statement of the informant recorded
st
under Section 164 CrPC (Section 183 BNSS) on 21
May, 1990 wherein he introduced the name of
accused Aditya in addition to Suresh. We may take
note of the fact that the lantern was not mentioned
in the subsequent report (Exh.5).
38. On a perusal of the evidence of the Magistrate
(PW-4), who recorded both these statements recorded
under Section 164 CrPC (Section 183 BNSS), it is
st
evident that the second statement dated 21 May,
1990 was recorded on the basis of an application
stating that the entire facts could not be disclosed in
th
the first statement dated 19 May, 1990 because of
panic. This deliberate attempt by the informant (PW-
3) to improve and modulate the version step by step
by substituting the original FIR (Exh. 1) with the
41
subsequent report (Exh. 5) and recording multiple
statements to fill up the lacunae, completely
demolishes the credibility of the prosecution case.
This systematic attempt by the prosecution to
introduce the names of the accused-appellants in
subsequent documents and statements completely
undermines the evidentiary worth of the star
prosecution witness, i.e., the first informant-
Rameshwar Sahu (PW-3).
39. Even if the embellished version of the witness
(PW-3) were to be accepted, it is apparent that he
could not himself identify the accused-appellants
which is very strange and unbelievable considering
the fact that the accused-appellants were none other
than his own nephews and hence, the failure of the
informant to identify his own close relatives as being
the assailants of his son makes his evidence
doubtful.
42
th
40. Further, in the first statement dated 19 May,
1990 recorded under Section 164 CrPC (Section 183
BNSS), the informant (PW-3) manipulated his earlier
version by claiming that before being taken to the
hospital, his son was taken to their home. This
deviation appears to be a calculated design to
introduce the theory of an oral dying declaration by
Gajendra in the presence of his sisters Tapeshwari
Kumari (PW-1) and Saroj Kumari (PW-2). However,
when we go through the evidence of these two
witnesses, it is evident that their statements under
Section 161 CrPC (Section 180 BNSS) mentioning
about the oral dying declaration were recorded after
more than one and a half months of the incident.
Furthermore, in neither of the two reports lodged by
the informant Rameshwar Sahu (PW-3), i.e., Exh. 1
and Exh. 5, is there a whisper that Gajendra after
being assaulted was first taken to their home, where
43
he made an oral dying declaration and from there, he
was taken to the hospital. Thus, the projection of an
oral dying declaration, as sought to be introduced in
the testimony of the witnesses, Tapeshwari Kumari
(PW-1) & Saroj Kumari (PW-2) whose 161 CrPC
(Section 180 BNSS) statements were recorded after a
great delay is a sheer piece of concoction, and their
evidence on this aspect is unworthy of credence and
unacceptable.
D. Implausibility of the Oral Dying Declaration
41. The prosecution relies heavily on the disclosure
of the names of the accused-appellants in the oral
dying declaration of the deceased. However, having
gone through the evidence of the medical jurist, Dr.
Ajit Kumar Chaudhary (PW-5), we are unable to
subscribe to the theory that the deceased would have
been in a position to speak after receiving the injuries
described below: -
44
“Abrasions:
1) ½ x ½ cm, ½ x ½ cm over left elbow back.
2) ½ x ½ cm over left thumb.
Bruises:
1) 8 x 2 cm over front of abdomen upper part situated
transversely.
2) 5 x 2 cm over front of right side abdomen.
3) 4 x 2 cm over front of right thigh.
Lacerated wound (stitched):
1) 4 x 1 cm x scalp deep over the right parietal region of
head.
2) 4½ x 1 cm x scalp deep on the right occipital region
of head.
3) 4 x 1 cm x scalp deep over left parietal region of head.
Internal Injuries:
There was defused contusion of whole scalp and both
temporalis muscles. There was Crack Fracture of
right temopro-parieto-occipital bone and the
fracture line extends to left parietal bone and
another crack fracture measuring 7 cm long was
present on right parietal bone situated
anteroposterior. There was presence of subdural
blood and blood clot over both sides of right
temporal lobe of brain.”
(Emphasis supplied)
45
42. It is impossible to believe that, having received
such grave head/cranial injuries, the deceased would
have been in a position to speak what to talk of
making an oral dying declaration.
43. That apart, admittedly, the deceased was taken
to the hospital at Mandar, at the first instance, from
where he was referred to R.M.C.H., Ranchi. The
treatment documents of the deceased from the
Mandar Hospital could have provided vital
information regarding his condition at the time of
arrival at the hospital. However, the prosecution did
not bring any such document on record, which
further weakens the case of prosecution on the theory
of oral dying declaration.
44. The evidence of Tapeshwari Kumari (PW-1) and
Saroj Kumari (PW-2), being the sisters of the
deceased, on the aspect of oral dying declaration is
46
unworthy of credence for the reasons which we have
11
assigned above .
45. The evidence of the informant, Rameshwar
Sahu (PW-3), suffers from inherent inconsistencies
and contradictions and suspicious circumstances
which convinces us that he was, as a matter of fact,
not present at the crime scene and has been
subsequently introduced to be an eyewitness of the
incident. The deliberate and calculated attempt by
the informant to introduce and add the names of the
accused-appellants stage by stage is manifested from
the inherent contradictions between his Fardbeyan
(Exh.1), written report (Exh. 5) and the two
statements under Section 164 CrPC (Section 183
th st
BNSS) dated 19 May, 1990 and 21 May, 1990,
12
which we have highlighted above.
11
Paras 42 and 43.
12
Paras 37 and 38.
47
46. Once the testimonies of Rameshwar Sahu (PW-
3), Tapeshwari Kumari (PW-1) and Saroj Kumari (PW-
2) are discarded, there remains no evidence
whatsoever to connect the accused-appellants with
the crime.
E. Evidentiary value of Defence Witness
47. Jatan Sahu and Khakhandu Sahu were named
as eye-witnesses in the subsequent report (Exh. 5) as
being the companions of the first informant and the
deceased. The prosecution offered no explanation
whatsoever for not examining these witnesses in
evidence. The defence examined them as DW-1 and
DW-2. The witnesses categorically stated that some
unknown assailants had assaulted Gajendra and
that the appellants were not present at the time of the
incident. Neither the trial Court nor the High Court
assigned any plausible reason for discarding the
evidence of these two witnesses.
48
48. It is well settled that the testimony of a defence
witness carries the same evidentiary value as that of
a prosecution witness. This Court in State of U.P. v.
13
Babu Ram
observed as follows:-
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 305 OF 2024
SURESH SAHU & ANOTHER ….APPELLANT(S)
VERSUS
THE STATE OF BIHAR
(NOW JHARKHAND) ….RESPONDENT(S)
J U D G M E N T
Mehta, J.
1. Heard.
1 rd
2. The appellants herein faced trial before the 3
2
Additional Judicial Commissioner, Ranchi in
Sessions Trial No. 128 of 1991. Vide judgment dated
th
30 August, 1994, the learned trial Court convicted
the accused-appellants for the offences punishable
Signature Not Verified
1
Hereinafter, referred to as the “accused-appellants”.
2
Hereinafter, referred to as the “trial Court”.
Digitally signed by
NEETU KHAJURIA
Date: 2025.12.04
17:08:49 IST
Reason:
1
under Section 120B, Section 302 and Section
3
302/149 of the Indian Penal Code, 1860 . The
accused-appellants were sentenced to undergo
imprisonment for life for the aforesaid offences.
3. Being aggrieved by their conviction and
sentence, the accused-appellants preferred Criminal
Appeal (DB) No. 150 of 1994 before the High Court of
4
Jharkhand at Ranchi . During the pendency of the
appeal, the sentences awarded to the accused-
appellants by the trial Court were suspended and
they were ordered to be released on bail. The afore-
stated appeal of the accused-appellants came to be
dismissed by the High Court vide judgment dated
th
10 February 2023, wherein the High Court modified
the conviction to one under Section 302/34 IPC and
imposed a fine of Rs. 2,000 on the accused-
3
For short, “IPC”.
4
Hereinafter, referred to as the “High Court”.
2
appellants, in addition to the life imprisonment
already awarded by the trial Court. The said
judgment is the subject matter of challenge in the
present appeal.
st
4. The accused-appellants surrendered on 1 May,
2023 and currently are in custody.
Brief Facts:-
5. Briefly stated, the facts relevant and essential
for disposal for the appeal are noted hereinbelow.
6. As per the initial case of prosecution, the
informant, Rameshwar Sahu (PW-3), along with his
5
son, Gajendra Prasad Gupta , had left his home on
th
11 May, 1990 at about 3:00 p.m. to sell sweets at
the Jatra Mela held at village Jhinjhari. Gajendra set
up his stall and commenced selling sweets. Three
persons approached his stall and demanded quarter
kg sweets. Gajendra provided the sweets and asked
5
For short “Gajendra”.
3
for payment. The said individuals allegedly refused to
pay, whereupon Gajendra declined to give them the
sweets. An altercation ensued, during the course of
which the three persons threatened Gajendra, stating
that they would accost and kill him on the way back
home. The quarrel was pacified by Lalu Ahir, the
watchman of Mandar Police Station, and Etwa
Oraon, a resident of Sakarpada. Thereafter, the
informant and his son wound up the stall and left for
their home. It is alleged that when they reached
Jhinjhri Dam, the same three persons intercepted
them by inserting a stick into the front wheel of
Gajendra’s bicycle, causing him to fall. Gajendra
attempted to run, but the assailants chased him
down, and thereafter assaulted him with wooden
sticks, chains, and hockey sticks. When the
informant tried to intervene, the assailants allegedly
threatened him as well, warning that he too would be
4
killed if he did not flee. The assailants continued
beating Gajendra, causing injuries to his forehead,
chest, and arms. After the assault, the accused
persons fled, whereafter the informant and others
proceeded to check upon Gajendra, who was first
taken in an injured condition to Mandar Hospital,
wherefrom the attending doctor referred him to
R.M.C.H., Ranchi. Gajendra was admitted and
underwent treatment at R.M.C.H., Ranchi. However,
th
on 12 May, 1990 at about 8:00 a.m., he succumbed
to his injuries. The informant alleged that he, as well
as watchman Lalu Ahir and Etwa Oraon, could
identify the assailant upon seeing them.
7. The aforesaid version, in the form of the
Fardbeyan (Exh. 1) of the informant Rameshwar
Sahu (PW-3), was recorded by ASI R. Paswan of
th
Bariatu Police Station on 12 May 1990 at R.M.C.H.,
Ranchi. On the basis of the said Fardbeyan (Exh. 1),
5
th
FIR No. 1858 dated 12 May 1990 was registered and
forwarded to Mandar Police Station for requisite
follow up action.
8.
It seems that the informant (PW-3) was not
satisfied with the aforesaid report and suspected
some foul play and thus, he gave a written report
(Exh. 5) to the officer in Charge of Mandar Police
th
Station on 13 May, 1990 alleging inter alia that he
had gone to the Jatra fete (mela) at village Jhinjri
along with his son, Gajendra, for selling sweets. After
selling sweets, they left for their home in the evening
at about 7:00 p.m. along with Ashok Sahu (son of
Khakhandu Sahu), Khakhandu Sahu (son of Kuchu
Sahu), and Jatan Sahu (son of Fuchai Sahu). When
they had reached Dumphu at around 7:30 p.m., four
to five men came in front of them armed with wooden
sticks and hockey sticks. One of them inserted a stick
into the wheel of Gajendra’s bicycle, due to which he
6
fell down. The assailants caught hold of Gajendra and
dragged him towards a nearby pit. When the
informant and his companions tried to follow, the
assailants threatened to kill them as well, due to
which they stepped back out of fear. It is stated that
the assailants then started beating Gajendra who
was heard shouting “Don’t beat me, leave me Aditya,
leave me Suresh.” Being old, infirm and having weak
eyesight, the informant could not save his son. When
Gajendra’s voice fell silent and the assailants went
away, the informant and his companions went to the
spot and found Gajendra lying on the pathway
soaked in blood. Heavy bleeding was visible from his
forehead and injuries on several other parts of his
body. On being asked, Gajendra stated that Suresh
and Aditya, along with five or six unknown persons,
had beaten him, and he kept beseeching them in the
words “don’t kill me Aditya, don’t kill me Suresh.”
7
Gajendra was lifted from the spot and was taken to
th
R.M.C.H., Ranchi, where he died on 12 May, 1990.
After post-mortem examination, the dead body was
brought home and cremated. The informant further
stated that there was a case pending between his son
and his nephews, Suresh Sahu and Aditya Sahu,
relating to employment in lieu of land acquisition,
and that on account of this enmity, Suresh and
Aditya, along with others, assaulted his son with
wooden sticks and hockey sticks and he died because
of the injuries received in the incident.
9. On the basis of this written report, another FIR
th
being Case No. 43/1990 dated 13 May, 1990 came
to be registered at Mandar Police Station.
10. Investigation of the case was assigned to the
very same ASI R. Paswan who had recorded
Fardbeyan (Exh. 1). After concluding the
investigation, chargesheet came to be filed against
8
the accused-appellants and the case was committed
to the trial Court. Charges were framed against the
accused persons who pleaded not guilty and claimed
trial. The prosecution examined six witnesses and
exhibited five documents to prove its case. The
statements of the accused-appellants were recorded
under Section 313 of Code of Criminal Procedure,
6
1973 (Section 351 of Bharatiya Nagarik Suraksha
7
Sanhita ) which make a very interesting reading and
are reproduced hereinbelow verbatim for ready
reference: -
“ (A) Suresh Prasad Sahu
The examination of Suresh Prasad Sahu aged
about 35 years, taken before me, Bal Govind
rd th
Prasad 3 Judicial Magistrate on 16 Day of
December 1993, in the Hindi language.
My name is Suresh Prasad Sahu, My
father’s/husband’s name is Shri Bigal Sahu. My
age is 35 years. I am by religion Hindu, My
nationality is Indian and I belong to Schedule
Caste/Tribe. I am by occupation salaried. My home
6
For short, “CrPC”.
7
For short, “BNSS”.
9
is at Mauza Kanbitha Police Station Mandar
District Ranchi.
Question 1 – Witnesses against you allege that
on May 11, 1990, Jhinjhari Chauraha, Jhinjhari
Village police station, Mandar district Ranchi,
was a member of an illegal party whose objective
was to kill Gajendra Prasad Gupta. What do you
have to say?
Answer – It is wrong.
Question 2 – It is also evidence that on that day
and time you and your friend Aditya Prasad
Sahu has killed Gajendra Prasad Gupta. What do
you have to say?
Answer – It is wrong.
Question 3 – What else do you have to say?
Answer – I was on duty on the day of the
incident. I have been implicated in the enmity.
I will give witness in the defence.
The above examination was taken in my presence
and hearing, and contents a full and true account
of the statements made by the accused. It was read
over to the accused or interpreted to him in the
language which he understands and was admitted
by him to be correct.”
xxxxxxx
(B) Aditya Prasad Sahu
“The examination of Aditya Prasad Sahu aged
about 35 years, taken before me, Bal Govind
rd th
Prasad 3 Judicial Magistrate, on 16 Day of
December 1993, in the Hindi language.
10
My name is Aditya Prasad Sahu, My
father’s/husband’s name is Shri Laxman Sahu. My
age is 35 years. I am by religion Hindu, My
nationality is Indian and I belong to Schedule
Caste/Tribe. I am by occupation salaried. My home
is at Mauza Kanbitha Police Station Mandar
District Ranchi.
Question 1 – There is an evidence over you
allege that on May 11, 1990, Jhinjhari
Chauraha, Jhinjhari Village police station,
Mandar district Ranchi, was a member of an
illegal party whose aim was to kill Gajendra
Prasad Gupta. What do you have to say?
Answer – It is a lie.
Question 2 – It is also evidence that on that day
and time you and your friend Suresh Prasad
Sahu has killed Gajendra Prasad Gupta. What do
you have to say?
Answer – It is a lie.
Question 3 – What else do you have to say in
defence?
Answer – I was on my duty on the day of the
incident. My family had enmity with the family
of the deceased, so I have been wrognly
implicated. I will give witness in the defence.
The above examination was taken in my presence
and hearing, and contents a full and true account
of the statements made by the accused. It was read
over to the accused or interpreted to him in the
language which he understands and was admitted
by him to be correct.”
(Emphasis Supplied)
11
11. Seven witnesses were examined in defence, two
of whom, as per the written report (Exh. 5), namely,
Jatan Sahu (DW-1) and Khakhandu Sahu (DW-2),
were accompanying the informant and the deceased
Gajendra, at the time when the latter was allegedly
assaulted. Both these witnesses (DW-1 & DW-2) did
not implicate the accused-appellants in the crime
and rather stated that there was a fight between
Gajendra and some tribal people over selling of
sweets. Gajendra was beaten up and became
unconscious, but the witnesses could not identify the
assailants. They also stated that Aditya Sahu and
Suresh Sahu were not seen in the Jatra fair.
12. At this stage, a very important fact that needs
to be noted is that the Investigating Officer ASI R.
Paswan who recorded the Fardbeyan (Exh. 1) and
investigated the case was not examined by the
prosecution.
12
13. Be that as it may, the accused-appellants stand
convicted and their appeals have been rejected in the
manner stated above, upon which the instant appeal
by special leave has been laid before us for
consideration.
Submissions on behalf of the accused-appellants:-
14. Learned Counsel representing the accused-
appellants advanced the following submissions for
assailing the impugned judgment and seeking
acquittal for the accused-appellants:-
a) That the Fardbeyan (Exh. 1) of the informant,
Rameshwar Sahu (PW-3), was the actual first
information report recorded by ASI R. Paswan (the
Investigating Officer) and the High Court committed
grave error in discarding the said report and treating
th
the subsequent written report (Exh. 5) dated 13
May, 1990 to be the actual first information report of
the incident. As per learned counsel, the said report
13
would be hit by Section 161 CrPC (Section 180
BNSS).
b) That the evidence of PW-3, the first informant is
highly unnatural and full of embellishments, and he
falls in the category of a totally unreliable witness.
The witness failed to identify the accused at the time
of the incident even though he claims to be an eye
witness to the incident.
c) That the version of the informant (PW-3), that
his son, Gajendra, shouted out the names of the
assailants to be Aditya and Suresh while he was
being assaulted is absolutely unbelievable. Had the
witness observed anything of that sort, he would have
immediately disclosed the same to the ASI R. Paswan,
who recorded the Fardbeyan (Exh. 1) at the R.M.C.H.,
th
Ranchi on 12 May, 1990.
d) That the prosecution theory that Tapeshwari
Kumari (PW-1) and Saroj Kumari (PW-2), being the
14
sisters of the deceased, heard the deceased making
an oral dying declaration when he was brought home
after being assaulted is cooked up and unbelievable.
The statements of these witnesses under Section 161
CrPC (Section 180 BNSS) were admittedly recorded
after more than one and a half month of the incident.
The rank silence of these witnesses being the close
relatives, in disclosing this important fact to the
police at the earliest possible opportunity completely
demolishes their credibility.
e) That grave prejudice has been caused to the
accused owing to the perfunctory manner in which
their statements under Section 313 CrPC (Section
351 BNSS) were recorded. The High Court failed to
consider this vital aspect of the matter and hence the
impugned judgment is vitiated as having been passed
in ignorance of this crucial issue which goes to the
root of the matter.
15
f) That the material witness ASI R. Paswan who
recorded the Fardbeyan (Exh. 1) and conducted the
investigation of the case was not examined at the
trial, and no explanation is forthcoming for his non-
examination. He would have been the best person to
throw light on the inconsistency between the
Fardbeyan (Exh. 1) and the written report (Exh.5).
The non-examination of the said police officer has
caused grave prejudice to the defence and as such,
adverse inference deserves to be drawn against the
prosecution.
g) That Jatan Sahu (DW-1) and Khakandu Sahu
(DW-2) who were named in the written report (Exh.5)
as being the witnesses present at the crime scene
along with the informant (PW-3) and the deceased,
were not examined by the prosecution. Both these
witnesses were examined by the defence as DW-1 and
DW-2 and they have categorically stated that the
16
accused-appellants were not the assailants. Neither
the trial Court nor the High Court duly considered
the effect of the evidence of these two eye-witnesses
on the veracity of the prosecution case. If at all, the
prosecution was desirous to seek corroboration for
the wavering testimony of the first informant (PW-3),
these two witnesses (DW-1 and DW-2) would have
been the best placed persons to provide such
corroboration.
15. On these grounds, learned Counsel for the
accused-appellants, implored the Court to set aside
the impugned judgment, acquit the accused-
appellants of the charges while accepting the appeal.
Submissions on behalf of respondent-State: -
16. Per contra , learned Counsel representing the
State, supported the impugned judgment. He urged
that both the Courts below, for convicting the
accused appellants for the charge of murder, have
17
recorded concurrent findings of facts after due
appreciation of evidence on record. The finding of
facts so recorded by the trial Court and affirmed by
the High Court do not suffer from any infirmity
warranting interference by this Court in exercise of
jurisdiction under Article 136 of the Constitution of
India. He, therefore, sought dismissal of the appeal.
Discussion:-
17. We have given our thoughtful consideration to
the submissions advanced at bar and shall deal with
the same while reappreciating the evidence available
on record. We have also gone through the impugned
judgment of the High Court as well as the judgment
of the trial Court and carefully reanalyzed the
evidence on record.
A. Defective Examination of the Accused Under
Section 313 CrPC (Section 351 BNSS)
18
18. It is evident from the record that only three
questions were put to each of the accused in their
examination under Section 313 CrPC (Section 351
BNSS). These questions were framed in an extremely
generic and mechanical manner, without articulating
any of the specific incriminating circumstances
appearing in the prosecution evidence.
19. The purpose of recording the statement of an
accused under Section 313 CrPC (Section 351 BNSS)
is to make the accused aware of the circumstances
as appearing against him in the prosecution case and
to seek his explanation for the same. For this
purpose, the accused must be informed of each and
every incriminating circumstance which the
prosecution intends to rely upon for bringing home
the guilt of the accused. Omission to put material
circumstances to the accused in the statement under
Section 313 CrPC (Section 351 BNSS) would cause
19
grave prejudice and may, in a given case, even prove
fatal to the case of the prosecution. Of course, the
appellate Court can rectify this error by requiring
that a fresh statement under Section 313 CrPC
(Section 351 BNSS) be recorded for removing the
lacunae, if any, in this procedure. In the present case,
on going through the statements of both the accused
persons recorded by the trial Court under Section
313 CrPC (Section 351 BNSS) ( supra ), we find that
these statements are almost a reproduction of the
language of the charge and, in no manner, convey to
the accused persons the incriminating
circumstances/evidence produced by the
prosecution so as to indict them for the crime. This
defect goes to the root of the matter.
20. In this regard, we may refer to the judgment of
this Court in the case of Ashok v. State of Uttar
20
8
Pradesh , wherein a three-Judge Bench of this Court
observed as follows: -
“14. Now, we come to the appellant's statement,
recorded per Section 313 of the CrPC. Only three
questions were put to the appellant. In the first
question, the names of ten prosecution witnesses
were incorporated, and the only question asked to
the appellant was what he had to say about the
testimony of ten prosecution witnesses. In the
second question, all the documents produced by
the prosecution were referred, and a question was
asked, what the appellant has to say about the
documents. In the third question, it was put to the
appellant that knowing the fact that the victim
belongs to a scheduled caste, he caused her death
after raping her and concealed her dead body, and
he was asked for his reaction to the same. What
PW-1 and PW-2 deposed against the appellant
was not put to the appellant. The contents of
the incriminating documents were not put to
the appellant.
15. In the case of Raj Kumar , in paragraph 17, this
Court has summarised the law laid down by this
Court from time to time on Section 313 of the CrPC.
Paragraph 17 reads thus:
“17. The law consistently laid down by this Court
can be summarized as under:
(i) It is the duty of the Trial Court to put
each material circumstance appearing in the
evidence against the accused specifically,
distinctively and separately. The material
8
2024 INSC 919
21
circumstance means the circumstance or the
material on the basis of which the prosecution
is seeking his conviction;
(ii) The object of examination of the accused
under Section 313 is to enable the accused to
explain any circumstance appearing against him in
the evidence;
(iii) The Court must ordinarily eschew
material circumstances not put to the accused
from consideration while dealing with the case
of the particular accused;
(iv) The failure to put material
circumstances to the accused amounts to a
serious irregularity. It will vitiate the trial if it
is shown to have prejudiced the accused;
(v) If any irregularity in putting the material
circumstance to the accused does not result in
failure of justice, it becomes a curable defect.
However, while deciding whether the defect can
be cured, one of the considerations will be the
passage of time from the date of the incident;
(vi) In case such irregularity is curable, even
the appellate court can question the accused on the
material circumstance which is not put to him; and
(vii) In a given case, the case can be
remanded to the Trial Court from the stage of
recording the supplementary statement of the
concerned accused under Section 313 of CrPC.
(viii) While deciding the question whether
prejudice has been caused to the accused
because of the omission, the delay in raising the
contention is only one of the several factors to
be considered.”
In a given case, the witnesses may have deposed in
a language not known to the accused. In such a
22
case, if the material circumstances appearing in
evidence are not put to the accused and explained
to the accused, in a language understood by him,
it will cause prejudice to the accused.
16. In the present case, there is no doubt that
material circumstances appearing in evidence
against the appellant have not been put to him.
The version of the main prosecution witnesses
PWs-1 and 2 was not put to him. The stage of
the accused leading defence evidence arises
only after his statement is recorded under
Section 313 of the CrPC. Unless all material
circumstances appearing against him in evidence
are put to the accused, he cannot decide whether
he wants to lead any defence evidence. In this case,
even the date and place of the crime allegedly
committed by the appellant were not put to the
appellant. What was reportedly seen by PW-2 was
not put to the appellant in his examination.
Therefore, the appellant was prejudiced. Even
assuming that failure to put material to the
appellant in his examination is an irregularity,
the question is whether it can be cured by
remanding the case to the Trial Court.
17. The date of occurrence is of 27th May 2009.
Thus, the incident is fifteen and a half years old.
After such a long gap of fifteen and half years,
it will be unjust if the appellant is now told to
explain the circumstances and material
specifically appearing against him in the
evidence. Moreover, the appellant had been
incarcerated for about twelve years and nine
months before he was released on bail.
Therefore, considering the long passage of time,
23
there is no option but to hold that the defect
cannot be cured at this stage. Even assuming
that the evidence of PW-2 can be believed, the
appellant is entitled to acquittal on the ground
of the failure to put incriminating material to
him in his examination under Section 313 of
the CrPC. We are surprised to note that both the
Trial Court and High Court have overlooked
noncompliance with the requirements of
Section 313 of the CrPC. Shockingly, the Trial
Court imposed the death penalty in a case which
ought to have resulted in acquittal. Imposing
capital punishment in such a case shocks the
conscience of this Court.”
(Emphasis supplied)
21. Recently, this Court in the case of Ramji
9
Prasad Jaiswal v. State of Bihar , reiterated the
position of law and held as follows: -
“35 . After surveying the law on this print, let us
revert back to the facts of the present case. The
manner in which the trial court had recorded the
statements of the appellants under Section 313
CrPC was not at all in tune with the requirements
5 (2025) 2 SCC 381 31 of the said provision as
explained by this Court as discussed supra.
36. Four questions generally were put to the
appellants, that too, in a most mechanical
manner. These questions did not reflect the
specific prosecution evidence which came on
9
(2025 INSC 738)
24
record qua the appellants. As all the
incriminating evidence were not put to the
notice of the appellants, therefore, there was a
clear breach of Section 313 CrPC as well as the
principle of audi alteram partem. Certainly, this
caused serious prejudice to the appellants to
put forth their case. Ultimately, such evidence
were relied upon by the court to convict the
appellants.
37. Therefore, there is no doubt that such
omission, which is a serious irregularity, has
completely vitiated the trial. Even if we take a
more sanguine approach by taking the view that
such omission did not result in the failure of
justice, it is still a material defect albeit
curable. In Raj Kumar (supra), this Court
highlighted that while deciding whether such
defect can be cured or not, one of the
considerations will be the passage of time from
the date of the incident.
38. As we have already noted, the period during
which the offence was allegedly committed was
from September, 1982 to December, 1982. Trial
was concluded on 29.05.2006. Nineteen years
have gone by since then. At this distant point
of time, instead of aiding the cause of justice, it
will lead to miscarriage of justice if the case qua
the two appellants are remanded to the trial
court to restart the trial from the stage of
recording the statements of the accused
persons under Section 313 CrPC. In such
circumstances, we are of the considered opinion
that it is neither possible nor feasible to order
such remand. Consequently, appellants are
25
entitled to the benefit of doubt because of such
omission in the recording of their statements
under Section 313 Cr.P.C. since the trial court
had relied on the evidence adverse to the
appellants while convicting them .”
(Emphasis supplied)
22. It is pertinent to note that the High Court, in the
impugned judgment, has not even discussed the
perfunctory manner in which the statements of the
accused-appellants under Section 313 CrPC (Section
351 BNSS) were recorded (supra) .
23. Looking to the highly laconic and defective
manner in which the statements of the accused-
appellants were recorded under Section 313 CrPC
(Section 351 BNSS) (supra) , we could have remanded
the matter to the trial Court for re-recording the said
statements and for delivering a fresh judgment.
However, considering the fact that more than 35
years have passed since the incident took place, we
feel that it would be nothing short of an exercise in
26
futility to direct such remand. We have, therefore,
minutely sifted through the evidence on record and
shall analyze the same to adjudicate as to whether
the conviction of the accused-appellants is justified
in the facts, circumstances and evidence as available
on record.
B. Evaluation of the Two Reports and Non-
Examination of the Investigating Officer
24. The High Court, while dealing with the issue of
th
two FIRs, held that the Fardbeyan (Exh. 1) dated 12
May, 1990 was totally denied by the informant (PW-
3) and, therefore, the same could not be treated to be
the actual First Information Report. It was further
th
held that the written information (Exh. 5) dated 13
May, 1990, the contents whereof were proved by the
maker (PW-3), was the actual FIR of the incident. For
arriving at this conclusion, the High Court, observed
that merely because the informant, Rameshwar Sahu
27
(PW-3), admitted his signatures on the Fardbeyan
(Exh. 1), the same could not, by itself, establish it to
be the FIR of the incident. The explanation offered by
the informant (PW-3) that his brothers, Laxman and
Bigan, took his signatures on the document by
keeping him into dark and misleading him, was
accepted to be justifiable, and on this unconvincing
premise, the FIR based on the Fardbeyan (Exh. 1)
was excluded from consideration.
25. However, we find this approach of the High
Court to be quite perfunctory and unacceptable on
the face of record. We may note that the Farbdeyan
(Exh. 1) as well as the formal FIR (Exh. 5) were both
recorded and acknowledged by the same police officer
ASI R. Paswan, who had also conducted the
investigation of the matter. Both documents contain
facts which could not have been within the
knowledge of anyone other than the informant,
28
Rameshwar Sahu (PW-3). Indisputably, the
informant signed both the reports. If, at all, the
prosecution was desirous of questioning the veracity
of the Fardbeyan (Exh.1), on the ground of
tampering/undue influence, it was absolutely
imperative for it to have examined the Investigating
Officer ASI R. Paswan in evidence. However, the
prosecution neither made any effort nor offered any
explanation for non-examination of the most crucial
witness, i.e., the Investigating Officer ASI R. Paswan.
Had ASI R. Paswan been examined on oath, the
genuineness or otherwise of the Fardbeyan (Exh. 1)
could have been duly tested. Non-examination of a
material witness would give rise to adverse inference
and the benefit thereof would normally go to the
defence unless of course a satisfactory explanation
for the omission was offered.
29
26. No such explanation having been offered, there
is no escape from the conclusion that the withholding
of the witness was a deliberate attempt by the
prosecution to cover up the crucial flaw in its case.
27. This Court in Harvinder Singh @ Bachhu v.
10
State of Himachal Pradesh has held that
deliberate withholding of material witnesses by the
prosecution would destroy its credibility, leading the
Court to draw adverse inference. It was observed as
follows:-
“24. Failure on the part of the prosecution in not
examining a witness, though material, by itself
would not vitiate the trial. However, when facts
are so glaring and with the witnesses available,
particularly when they are likely to give a
different story, the Court shall take adequate
note of it. When a circumstance has been
brought to the notice of the Court by the
defense and the Court is convinced that a
prosecution witness has been deliberately
withheld, as it in all probability would destroy
its version, it has to take adverse notice.
Anything contrary to such an approach would
be an affront to the concept of fair play. In
10
2023 SCC OnLine SC 1347, 2023 INSC 907.
30
Takhaji Hiraji v. Thakore Kubersing Chamansing,
(2001) 6 SCC 145,
“19. So is the case with the criticism levelled
by the High Court on the prosecution case
finding fault therewith for non-examination
of independent witnesses . It is true that if a
material witness, who would unfold the
genesis of the incident or an essential part
of the prosecution case, not convincingly
brought to fore otherwise, or where there
is a gap or infirmity in the prosecution
case which could have been supplied or
made good by examining a witness who
though available is not examined, the
prosecution case can be termed as
suffering from a deficiency and
withholding of such a material witness
would oblige the court to draw an adverse
inference against the prosecution by
holding that if the witness would have
been examined it would not have
supported the prosecution case. On the
other hand if already overwhelming evidence
is available and examination of other
witnesses would only be a repetition or
duplication of the evidence already adduced,
non-examination of such other witnesses
may not be material. In such a case the court
ought to scrutinise the worth of the evidence
adduced. The court of facts must ask itself —
whether in the facts and circumstances of
the case, it was necessary to examine such
other witness, and if so, whether such
witness was available to be examined and yet
was being withheld from the court. If the
answer be positive then only a question of
31
drawing an adverse inference may arise. If
the witnesses already examined are reliable
and the testimony coming from their mouth
is unimpeachable the court can safely act
upon it, uninfluenced by the factum of non-
examination of other witnesses…”
(Emphasis supplied)
28. In the light of the above principle, the failure of
the prosecution to examine ASI R. Paswan, the police
officer who recorded the Fardbeyan (Exh. 1) and
registered the formal FIR (Exh. 5), assumes critical
significance. The prosecution’s failure to produce this
material witness for deposition necessarily attracts
an adverse inference. Rank failure of the prosecution
to explain the circumstances under which the
Fardbeyan (Exh. 1) was recorded and by avoiding to
produce the scribe of the vital document i.e. ASI R.
Paswan, gives the defence a right to claim grave
prejudice and the prosecution cannot be allowed to
take advantage of its own follies.
32
29. The Fardbeyan (Exh. 1) sets out minute details
of the incident and also takes note of the fact that
after the incident, when Gajendra had fallen down
injured, the informant (PW-3) along with his
companions, took him to the Mandar Hospital for
treatment, from where the injured was referred to
R.M.C.H., Ranchi. Hence, the reasoning given by the
High Court for discarding the Fardbeyan (Exh. 1) and
not treating it to be the actual First Information
Report is patently erroneous and unacceptable on the
face of record. It may be noted that in the said
Fardbeyan (Exh. 1), the informant (PW-3) did not
mention the name of any of the assailants. Hence,
once the Fardbeyan (Exh. 1) is treated to be the
actual First Information Report of the incident, this
omission assumes great significance in evaluating
the prosecution’s case. Consequently, the
subsequent report (Exh. 5) could not be treated to be
33
anything other than a statement under Section 161
CrPC (Section 180 BNSS).
C. Credibility of the Informant and
Inconsistencies in His Statements
th
30. In the first report dated 12 May, 1990 based
upon the Fardbeyan (Exh. 1), there is a clear
reference of two incidents, the first of which took
place when the deceased Gajendra was selling sweets
in the fair, and the second, when the informant (PW-
3) along with his son and other companions were
returning home. In the second report (Exh. 5) dated
th
13 May, 1990, the informant completely changed
the version and did not make any reference of the first
incident. For the second incident, he tried to rope in
the accused-appellants claiming that his son, while
being assaulted, was shouting “Do not beat me, leave
me Aditya, leave me Suresh”. This belated theory
projected in the subsequent report (Exh. 5), on the
34
face of the record seems to be a sheer embellishment
introduced by the informant at a belated stage for
oblique motive of implicating the accused-appellants
in the case.
31. This theory projected in subsequent report
(Exh. 5) was further harped upon in the sworn
testimony of the informant, Rameshwar Sahu (PW-3),
recorded at the trial. In our opinion, this is a clear
embellishment which has been put forth under legal
advice to overcome the effect of omission of names of
the accused in the original report registered on the
basis of Fardbeyan (Exh. 1). The High Court, while
considering the impact of this material omission, and
the plea of the accused claiming adverse inference
based on the fact of non-examination of the
Investigating Officer, recorded the following findings:-
“43. The learned senior counsel for the
appellants also contended that in this case, the
I.O. was not examined and same is fatal to the
prosecution case. More so, the very first fard
35
beyan was also suppressed and the F.I.R. was
not lodged. All these circumstances could have
been explained by the I.O. and his non-
examination is fatal to the prosecution case.
44. Admittedly, the I.O. was not examined on
behalf of the prosecution in this case. Non-
examination of the I.O. is not found fatal keeping
in view 'the facts and circumstances of the case.
So far as the place of occurrence is concerned,
there is no dispute in regard to the place of
occurrence. The only dispute is raised on the
issue that the assailants were the unknown
persons and name of the appellants were
mentioned by the informant on account of
animosity.
45. In this case whether the appellants were
falsely implicated in this case on account of
animosity is to be decided in view of the
testimony of the informant and other
corroborating evidence to that effect. P.W.-3
Rameshwar Sahu and other witnesses who were
examined before the trial court in regard to the
fact that there is no contradiction in their
testimony given before the court and their
statements recorded by the I.O. under Section
161 Cr.P.C. as well as the statement of this
witness P.W.-3 Ramehswar Sahu which was
recorded under Section 164 Cr.P.C. before the
Magistrate and the same are also proved by P.W.-
4 B.K. Singh, Judicial Magistrate.
Certainly, the presence of the I.O. is
necessary in order to show the contradiction in
the testimony of the witnesses, if the same is
brought out during cross-examination of the
witnesses or if there is recovery of any article, the
examination of the I.O. was necessary. Keeping
in view the facts and circumstances and also the
evidence on record, the non-examination of the
I.O. is not found fatal to the prosecution case. ”
36
32. Admittedly, litigation was going on between the
deceased Gajendra and the accused-appellants in
relation to the grant of employment, pursuant to the
acquisition of the family lands by the C.C.L. This
ongoing litigation, in our opinion, gave a strong
motive to the complainant party to implicate the
accused-appellants in the crime for settling the
scores.
33. Another important and vital factor which needs
to be noted is that the informant, Rameshwar Sahu
(PW-3), did not mention in the subsequent report
(Exh. 5) that anyone had taken his signatures on a
blank paper on which the Fardbeyan (Exh. 1) was
written. Had there been a semblance of truth in this
allegation, the informant would definitely have
mentioned in the subsequent report (Exh. 5) that his
brothers, Laxman and Bigan, had taken his
signatures on a blank sheet of paper. The omission
37
to disclose such a material fact at the earliest
opportunity renders the belated explanation wholly
unconvincing and bereft of substance.
34.
Hence, we do not subscribe to the observations
made and finding recorded by the High Court that the
Fardbeyan (Exh. 1) was not the actual FIR of the
incident.
35. We are convinced that the prosecution is guilty
of superseding the actual first information report of
th
the incident i.e. (Exh. 1) dated 12 May, 1990 and
th
replacing it by subsequent report (Exh. 5) dated 13
May, 1990, which incorporated an
improved/exaggerated version, to be specific, by
nominating the accused-appellants for the assault
made on the deceased. The view taken by the trial
Court and affirmed by the High Court that the first
report based on the Fardbeyan (Exh. 1) was written
out by keeping the informant in dark, is unacceptable
38
looking to the material available on record and the
discussion made supra .
36. It can be presumed that the Fardbeyan (Exh.1)
must have been scribed by the police officer ASI R.
Paswan who also endorsed the same at the R.M.C.H.,
Ranchi. There could not have been any reason for the
police officer, ASI R. Paswan to not faithfully record
the Fardbeyan (Exh. 1) and leave out the names of
the accused had the informant made such
revelations to him. In this background, non-
examination of the Investigating Officer ASI R.
Paswan, who recorded the vital documents i.e.
Fardbeyan (Exh. 1) and the subsequent report (Exh.
5) gains even more significance and is fatal to the
prosecution case. The informant (PW-3) was put a
pertinent question in his cross-examination
regarding the allegation that his brothers Laxman
and Bigan had taken his signatures on the
39
Fardbeyan (Exh. 1). The witness admitted that he
did not state this at the Mandar Police Station.
Furthermore, this fact also does not find mention in
both his statements recorded under Section 164
CrPC (Section 183 BNSS). Thus, the conclusion
drawn by the High Court casting a doubt on the
Fardbeyan (Exh. 1) and not treating it to be the actual
FIR of the incident is contrary to the evidence
available on record and cannot be accepted.
37. Another significant loophole in the prosecution
case is borne out from the two statements of the
informant, Rameshwar Sahu (PW-3), recorded under
Section 164 CrPC (Section 183 BNSS). In his first
th
statement recorded on 19 May, 1990, the informant
alleged that the incident took place after darkness
had set in. He was carrying a lantern. Suresh pushed
him down and broke the lantern. His son took the
name of Suresh and shouted that he should be
40
spared. Significantly, in this statement, the name of
the accused Aditya was not mentioned. It was only in
the second statement of the informant recorded
st
under Section 164 CrPC (Section 183 BNSS) on 21
May, 1990 wherein he introduced the name of
accused Aditya in addition to Suresh. We may take
note of the fact that the lantern was not mentioned
in the subsequent report (Exh.5).
38. On a perusal of the evidence of the Magistrate
(PW-4), who recorded both these statements recorded
under Section 164 CrPC (Section 183 BNSS), it is
st
evident that the second statement dated 21 May,
1990 was recorded on the basis of an application
stating that the entire facts could not be disclosed in
th
the first statement dated 19 May, 1990 because of
panic. This deliberate attempt by the informant (PW-
3) to improve and modulate the version step by step
by substituting the original FIR (Exh. 1) with the
41
subsequent report (Exh. 5) and recording multiple
statements to fill up the lacunae, completely
demolishes the credibility of the prosecution case.
This systematic attempt by the prosecution to
introduce the names of the accused-appellants in
subsequent documents and statements completely
undermines the evidentiary worth of the star
prosecution witness, i.e., the first informant-
Rameshwar Sahu (PW-3).
39. Even if the embellished version of the witness
(PW-3) were to be accepted, it is apparent that he
could not himself identify the accused-appellants
which is very strange and unbelievable considering
the fact that the accused-appellants were none other
than his own nephews and hence, the failure of the
informant to identify his own close relatives as being
the assailants of his son makes his evidence
doubtful.
42
th
40. Further, in the first statement dated 19 May,
1990 recorded under Section 164 CrPC (Section 183
BNSS), the informant (PW-3) manipulated his earlier
version by claiming that before being taken to the
hospital, his son was taken to their home. This
deviation appears to be a calculated design to
introduce the theory of an oral dying declaration by
Gajendra in the presence of his sisters Tapeshwari
Kumari (PW-1) and Saroj Kumari (PW-2). However,
when we go through the evidence of these two
witnesses, it is evident that their statements under
Section 161 CrPC (Section 180 BNSS) mentioning
about the oral dying declaration were recorded after
more than one and a half months of the incident.
Furthermore, in neither of the two reports lodged by
the informant Rameshwar Sahu (PW-3), i.e., Exh. 1
and Exh. 5, is there a whisper that Gajendra after
being assaulted was first taken to their home, where
43
he made an oral dying declaration and from there, he
was taken to the hospital. Thus, the projection of an
oral dying declaration, as sought to be introduced in
the testimony of the witnesses, Tapeshwari Kumari
(PW-1) & Saroj Kumari (PW-2) whose 161 CrPC
(Section 180 BNSS) statements were recorded after a
great delay is a sheer piece of concoction, and their
evidence on this aspect is unworthy of credence and
unacceptable.
D. Implausibility of the Oral Dying Declaration
41. The prosecution relies heavily on the disclosure
of the names of the accused-appellants in the oral
dying declaration of the deceased. However, having
gone through the evidence of the medical jurist, Dr.
Ajit Kumar Chaudhary (PW-5), we are unable to
subscribe to the theory that the deceased would have
been in a position to speak after receiving the injuries
described below: -
44
“Abrasions:
1) ½ x ½ cm, ½ x ½ cm over left elbow back.
2) ½ x ½ cm over left thumb.
Bruises:
1) 8 x 2 cm over front of abdomen upper part situated
transversely.
2) 5 x 2 cm over front of right side abdomen.
3) 4 x 2 cm over front of right thigh.
Lacerated wound (stitched):
1) 4 x 1 cm x scalp deep over the right parietal region of
head.
2) 4½ x 1 cm x scalp deep on the right occipital region
of head.
3) 4 x 1 cm x scalp deep over left parietal region of head.
Internal Injuries:
There was defused contusion of whole scalp and both
temporalis muscles. There was Crack Fracture of
right temopro-parieto-occipital bone and the
fracture line extends to left parietal bone and
another crack fracture measuring 7 cm long was
present on right parietal bone situated
anteroposterior. There was presence of subdural
blood and blood clot over both sides of right
temporal lobe of brain.”
(Emphasis supplied)
45
42. It is impossible to believe that, having received
such grave head/cranial injuries, the deceased would
have been in a position to speak what to talk of
making an oral dying declaration.
43. That apart, admittedly, the deceased was taken
to the hospital at Mandar, at the first instance, from
where he was referred to R.M.C.H., Ranchi. The
treatment documents of the deceased from the
Mandar Hospital could have provided vital
information regarding his condition at the time of
arrival at the hospital. However, the prosecution did
not bring any such document on record, which
further weakens the case of prosecution on the theory
of oral dying declaration.
44. The evidence of Tapeshwari Kumari (PW-1) and
Saroj Kumari (PW-2), being the sisters of the
deceased, on the aspect of oral dying declaration is
46
unworthy of credence for the reasons which we have
11
assigned above .
45. The evidence of the informant, Rameshwar
Sahu (PW-3), suffers from inherent inconsistencies
and contradictions and suspicious circumstances
which convinces us that he was, as a matter of fact,
not present at the crime scene and has been
subsequently introduced to be an eyewitness of the
incident. The deliberate and calculated attempt by
the informant to introduce and add the names of the
accused-appellants stage by stage is manifested from
the inherent contradictions between his Fardbeyan
(Exh.1), written report (Exh. 5) and the two
statements under Section 164 CrPC (Section 183
th st
BNSS) dated 19 May, 1990 and 21 May, 1990,
12
which we have highlighted above.
11
Paras 42 and 43.
12
Paras 37 and 38.
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46. Once the testimonies of Rameshwar Sahu (PW-
3), Tapeshwari Kumari (PW-1) and Saroj Kumari (PW-
2) are discarded, there remains no evidence
whatsoever to connect the accused-appellants with
the crime.
E. Evidentiary value of Defence Witness
47. Jatan Sahu and Khakhandu Sahu were named
as eye-witnesses in the subsequent report (Exh. 5) as
being the companions of the first informant and the
deceased. The prosecution offered no explanation
whatsoever for not examining these witnesses in
evidence. The defence examined them as DW-1 and
DW-2. The witnesses categorically stated that some
unknown assailants had assaulted Gajendra and
that the appellants were not present at the time of the
incident. Neither the trial Court nor the High Court
assigned any plausible reason for discarding the
evidence of these two witnesses.
48
48. It is well settled that the testimony of a defence
witness carries the same evidentiary value as that of
a prosecution witness. This Court in State of U.P. v.
13
Babu Ram
observed as follows:-
| (Emphasis supplied) |
|---|
this Court has clarified that evidence of a witness
cannot be discarded merely on the ground that the
witnesses were examined by the defence. It was
observed as follows:-
“3. Without attributing any motive and taking the
evidence on its face value, therefore, it appears that
the place of occurrence was at 400-500 yards from
13
(2000) 4 SCC 515
14
(2002) 1 SCC 351
49
the place of Panchayat and it is on this piece of
evidence, the learned advocate for the State heavily
relied upon and contended that the distance was
far too short so as to be an impossibility for the
accused to be at the place of occurrence — we
cannot but lend concurrence to such a submission:
a distance of 400-500 yards cannot possibly be said
to be “presence elsewhere” — it is not an
impossibility to be at the place of occurrence and
also at the Panchayat meet, the distance being as
noticed above: the evidence on record itself negates
the plea and we are thus unable to record our
concurrence as regards acceptance of the plea of
alibi as raised in the appeal. Before drawing the
curtain on this score, however, we wish to clarify
that the evidence tendered by the defence
witnesses cannot always be termed to be a
tainted one by reason of the factum of the
witnesses being examined by the defence. The
defence witnesses are entitled to equal respect
and treatment as that of the prosecution. The
issue of credibility and trustworthiness ought
also to be attributed to the defence witnesses
on a par with that of the prosecution — a lapse
on the part of the defence witnesses cannot be
differentiated and be treated differently than that of
the prosecutors' witnesses.”
(Emphasis supplied)
50. The failure of the prosecution to examine these
material eye-witnesses (DW-1 and DW-2) named in
the report (Exh. 5), coupled with the fact that the
Courts below disregarded their testimony on oath,
50
severely dents the credibility of the prosecution
version and strengthens the case of the defence. Their
evidence creates a clear doubt regarding the identity
of the assailants. In such a situation, the defence
version appears more probable, and the benefit of
doubt must go to the accused-appellants.
51. As a consequence of the above discussion, we
have no hesitation in holding that the prosecution
has miserably failed to fasten the guilt upon the
accused-appellants as there is total lack of credible
evidence to indict them for the charges. The
conviction of the accused-appellants, as recorded by
the trial Court and affirmed by the High Court is
based on misreading and erroneous appreciation of
evidence on record and, hence, the same is
unsustainable in facts as well as in law.
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Conclusion: -
th
52. Hence, the impugned judgment dated 10
February, 2023 rendered by the High Court affirming
th
the judgment dated 30 August, 1994 and order of
st
sentence dated 31 August, 1994 passed by the trial
Court is set aside. The appellants are acquitted of the
charges. They are in custody and shall be released
forthwith, if not wanted in any other case.
53. The appeal is allowed accordingly.
54. Pending application(s), if any, shall stand
disposed of.
….……………………J.
(VIKRAM NATH)
...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
NOVEMBER 27, 2025.
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