Rama Devi vs The State Of Bihar

REPORTABLE 2024 INSC 755 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 2623-2631 OF 2014

RAMA DEVI ..... APPELLANT

VERSUS

THE STATE OF BIHAR AND OTHERS ..... RESPONDENTS

WITH

CRIMINAL APPEAL NOS. 2632-2640 OF 2014

JUDGMENT

SANJIV KHANNA, J.

This judgment decides two sets of appeals, one by the State of

Bihar, through the Central Bureau of Investigation1, and the other by

Rama Devi, wife of one of the deceased – Brij Bihari Prasad, a member

of the Bihar Legislative Assembly. The second deceased –

Lakshmeshwar Sahu – was the bodyguard of Brij Bihari Prasad and a

member of the Bihar police.

2. The impugned judgment of the High Court of Judicature at Patna dated

Signature Not Verified 24.07.2014 reverses the judgment of the trial court and acquits the nine Digitally signed by babita pandey Date: 2024.10.03 17:28:44 IST Reason:

1 For short, “CBI.”

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 1 of 40 accused2 of the charges punishable under Sections 302, 307, 333, 355

and 379, all read with Section 34 of the Indian Penal Code, 1860 3, and

Section 27 of the Arms Act, 1959.4

3. The incident in question took place on 13.06.1998 at around 08:15 p.m.

at the Indira Gandhi Institute of Medical Science, Patna.5 On the basis of

the fardbeyan (Exhibit 50) of Amarendra Kumar Sinha (PW-10) recorded

by S.S.P. Yadav, Inspector-cum-Officer-in-Charge, Shastri Nagar Police

Station6, on 13.06.1998 at 9:00 p.m., First Information Report 7 No.

336/1998, (Exhibit 51 and 51/1) was lodged under Sections 302, 307,

34, 120B, 379 of the IPC and Section 27 of the 1959 Act at 12:15 a.m.

on 14.06.1998.

The Prosecution Case

4. The prosecution case is as follows:

(i) On 13.06.1998 at around 6:30 p.m., Brij Bihari Prasad, who was

in judicial custody and admitted for treatment at IGIMS hospital,

was taking a walk outside the wardroom along with – Amarendra

Kumar Sinha (PW-10), Arbind Singh (PW-13), Ram Nandan Singh

(PW-12), Mahant Ashwani Das (PW-25), Paras Nath Chaudhury

(PW-1), Onkar Singh and 2-4 others.

2 Suraj Bhan Singh @ Suraj Singh @ Suraj, Mukesh Singh, Lallan Singh, Mantu Tiwari, Captain Sunil

Singh (since deceased), Ram Niranjan Chaudhary, Shashi Kumar Rai (since deceased), Vijay Kumar Shukla @ Munna Shukla, Rajan Tiwari.

3 For short, “IPC”.

4 For short, “1959 Act”.

5 For short, “IGIMS Hospital”.

6 S.S.P. Yadav subsequently expired and did not depose. 7 For short, “FIR”.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 2 of 40

(ii) Brij Bihari Prasad was also accompanied by his bodyguard –

Lakshmeshwar Sahu, who was armed with a carbine, and other

sepoys.

(iii) Two vehicles, a Sumo car, with registration number, BR-1P-1818,

followed by an Ambassador car, registration number of which

could not be ascertained, entered the IGIMS hospital from the

southern main gate, Bailey Road side and stopped near Brij Bihari

Prasad.

(iv) Occupants of the said cars, namely – Mantu Tiwari (A-4), Vijay

Kumar Shukla @ Munna Shukla (A-8), Rajan Tiwari (A-9), and

Shri Prakash Shukla @ Shiv Prakash Shukla (since deceased),

Satish Pandey (since deceased) and Bhupendra Nath Dubey

(since deceased) came out of the vehicles.

(v) Mantu Tiwari(A-4) was armed with a sten gun and all others were

armed with pistols. Bhupendra Nath Dubey (since deceased)

abusively exhorted others to shoot at Brij Bihari Prasad while he

himself also fired at Brij Bihari Prasad with his pistol.

(vi) Mantu Tiwari (A-4) and Shri Prakash Shukla @ Shiv Prakash

Shukla (since deceased) fired at Brij Bihari Prasad from their sten

gun and pistol respectively.

(vii) Satish Pandey, Vijay Kumar Shukla @ Munna Shukla (A-8) and

Rajan Tiwari (A-9) fired at Lakshmeshwar Sahu.

(viii) Both Brij Bihari Prasad and Lakshmeshwar Sahu collapsed and

died.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 3 of 40

(ix) Rabindra Bhagat (PW-14) suffered a gunshot wound in the cross-

fire.

5. The post-mortem reports dated 14.06.1998 (Exhibits 9 & 9/1), proved by

Dr. Arvind Kumar Singh (PW-7), establish the homicidal death of Brij

Bihari Prasad and Lakshmeshwar Sahu due to multiple gunshot injuries

resulting in haemorrhage and shock. The multiple gunshot wound entries

are consistent with successive firing from firearms/pistol. To this extent

the prosecution version is unchallenged.

6. As per the prosecution case, there were eleven eye-witnesses, namely,

Paras Nath Chaudhury (PW-1), Amarendra Kumar Sinha (PW-10),

Amod Kumar (PW-11), Ram Nandan Singh (PW-12), Arbind Singh (PW-

13), Rabindra Bhagat (PW-14), Kamakhya Narain Singh (PW-15), Bhola

Prasad Premi (PW-16), Mahanth Ashwani Das (PW-25), Shashi

Bhushan Singh (PW-42) and Binod Kumar Singh (PW-19). However,

Paras Nath Chaudhury (PW-1), Mahanth Ashwani Das (PW-25), Shashi

Bhushan Singh (PW-42), and to some extent, Amarendra Kumar Sinha

(PW-10) had supported the prosecution case. Others were hostile or

partly hostile as they did not support the prosecution case or did not

name/identify the perpetrators.

7. Primarily relying on the testimonies of Paras Nath Chaudhury (PW-1),

Mahant Ashwani Das (PW-25), Shashi Bhushan Singh (PW-42) and

Amarendra Kumar Sinha (PW-10), the trial court

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 4 of 40 convicted the respondents Suraj Bhan Singh (A-1), Mukesh Singh (A-2),

Lallan Singh (A-3), Mantu Tiwari (A-4), Captain Sunil Singh (A-5) (since

deceased)8, Ram Niranjan Chaudhary (A-6), Vijay Kumar Shukla @

Munna Shukla (A-8), Rajan Tiwari (A-9) and Shashi Kumar Rai (A-7)

(since deceased).9

Reasoning of the High Court

8. The judgment of the High Court refers to the evidence in detail, with the

acquittal of the respondents grounded in the following findings:

(i) FIR No. 336/1998, marked Exhibit 51, is ante-timed.

(ii) Shashi Bhushan Singh (PW-42) is not an eye-witness, but rather

a planted witness, as his name was not mentioned in the

fardbeyan (Exhibit 50). His antecedents are questionable.

(iii) The testimony of Paras Nath Chaudhury (PW-1) implicating the

respondents-accused is unreliable because:

(a) he is Brij Bihari Prasad’s brother-in-law;

(b) he should have been the informant but was not, which raises

doubts about his presence at the IGIMS hospital;

(c) he contradicted the prosecution’s case by accepting that Rajan

Tiwari (A-9), whom he knew beforehand, was not present

during the incident. However, in his statement under Section

161 of the Code of Criminal Procedure, 197310, he claimed that

8 It is an accepted and admitted position that Captain Sunil Singh (A-5) has passed away. The appeal

qua him shall stand abated.

9 The appeal qua Shashi Kumari Rai (A-7) stood abated on account of his demise vide order dated

28.02.2020.

10 For short, “CrPC”.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 5 of 40 Rajan Tiwari (A-9) was one of the assailants of Lakshmeshwar

Sahu; and

(d) he deposed under the pressure of his sister, Rama Devi (PW-

24), who was present in the court during the recording of his

evidence on all (three) days.

(iv) The deposition of Mahanth Ashwani Das (PW-25) is unreliable on

the following grounds:

(a) he is a convict in a murder case registered in the year 1979;

(b) he did not surrender after the dismissal of his appeal by the

High Court and was accordingly declared an absconder;

(c) he was arrested on 04.05.2006 while deposing before the trial

court in the present case;

(d) he was under the patronage and protection of Brij Bihari Prasad

and his wife, Rama Devi (PW-24);

(e) there is a contradiction between the versions of Shashi

Bhushan Singh (PW-42) and Mahanth Ashwani Das (PW-25)

regarding their presence in the hospital room of Brij Bihari

Prasad at IGIMS hospital. While Shashi Bhushan Singh (PW-

42) claims that Mahanth Ashwani Das (PW-25) was in the

hospital room when he arrived there, Mahanth Ashwani Das

(PW-25) states that Shashi Bhushan Singh (PW-42) was

already present in the hospital room of Brij Bihari Prasad when

he (Mahanth Ashwani Das) reached the hospital.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 6 of 40

(f) there is a discrepancy as to when the police recorded the

statement of Mahanth Ashwani Das (PW-25) and his version of

events on 13.06.1998 and 14.06.1998. Mahanth Ashwani Das

(PW-25) claims that after the occurrence he and Rama Devi

(PW-24) had proceeded to the official residence of Brij Bihari

Prasad from IGIMS hospital at about 9:00-9:30 p.m. Mahanth

Ashwani Das (PW-25) had left for Muzzaffarpur Math in the

night at about 12:30 a.m. on 14.06.1998. Thus, the police could

not have recorded the statement of Mahanth Ashwani Das

(PW-25) in the IGIMS hospital at 12:30 a.m. on 14.06.1998.

Further, if Mahanth Ashwani Das (PW-25) was present at the

time of occurrence, as deposed by him, police should have

recorded his statement before he left the IGIMS hospital

campus around 9:30 p.m.

(v) Shashi Bhushan Singh (PW-42) was not an eye-witness, as his

presence is not mentioned in the fardbeyan (Exhibit 50) or the FIR

(Exhibits 51 and 51/1). His statement under Section 161 of the

CrPC was recorded belatedly, five days after the incident.

(vi) Rama Devi (PW-24) is not an eye-witness, as she had left the

place of occurrence prior to the incident. The police did not

produce Rama Devi’s statement under Section 161 of the CrPC

recorded on 13.06.1998 by the second investigating officer 11 –

Shashi Bhushan Sharma (PW-54), who had taken charge of the

11 For short, “IO”.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 7 of 40 investigation in compliance with the instructions of Senior

Superintendent of Police, Patna. The version of Rama Devi (PW-

24) that she learnt names and details of the assailants from the

visitors she had met earlier in the day in the hospital room is not

mentioned in the Section 161 CrPC statements dated 18.10.1999

and 28.03.2001 given by her to Rai Singh Khatri (PW-62), IO of

CBI. This is corroborated by the statement of Rai Singh Khatri

(PW-62), IO of CBI, who testified that Rama Devi (PW-24) did not

name the assailants. Since the initial statement of Rama Devi

(PW-24) under Section 161 CrPC recorded by Shashi Bhushan

Sharma (PW-54) was not on record and she later failed to disclose

the name of the assailants in her Section 161 CrPC statements to

Rai Singh Khatri (PW-62), IO of CBI, her deposition in court,

stating that Paras Nath Chaudhury (PW-1), Ram Niranjan

Chaudhary (A-6), Kamakhya Narain Singh (PW-15), Arbind Singh

(PW-13), Amarendra Kumar Sinha (Informant/PW-10), Onkar

Singh, Mahanth Ashwani Das (PW-25), Shashi Bhushan Singh

(PW-42) and others were present with the deceased, should not

be relied on.

(vii) The eye-witnesses did not testify about the retaliatory firing by the

security personnel of Brij Bihari Prasad who were present at the

scene of the occurrence. The recovery of empty cartridges and the

firearms examination report (Exhibit-17) indicate that shots were

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 8 of 40 fired from two of the four rifles which had been issued to the

security guards.

Court depositions and analysis of evidence

9. We will now examine in some detail the court depositions of Paras Nath

Chaudhury (PW-1), Mahanth Ashwani Das (PW-25), Amarendra Kumar

Singh (PW-10) and Rama Devi (PW-24), before scrutinising the reasons

given by the High Court to discredit their versions. Our discussion will

also address the arguments raised by both sides, with particular focus

on the contention of the respondents that the court depositions of Paras

Nath Chaudhury (PW-1), Mahanth Ashwani Das (PW-25), Amarendra

Kumar Singh (PW-10) and Rama Devi (PW-24) should not be accepted.

10. At the outset, we express our agreement with the reasoning given by the

High Court for disbelieving the presence of Shashi Bhushan Singh (PW-

42) at the spot, and consequently, his deposition as an eye-witness for

the following reasons:

(i) Shashi Bhushan Singh (PW-42) is not mentioned as one of the

persons present at the place of occurrence in the fardbeyan

(Exhibit-50), as also in the FIR (Exhibits 51 and 51/1). These

documents name the eyewitnesses. Therefore, the absence of the

name of Shashi Bhushan Singh (PW-42) is significant.

(ii) His statement under Section 161 CrPC was recorded on

18.06.1998, i.e., 5 days after the date of occurrence;

(iii) Shashi Bhushan Singh (PW-42) has deposed about taking the dead

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 9 of 40 body of Brij Bihari Prasad on 14.06.1998 from Patna to Behihari

village, the native place of Brij Bihari Prasad. Therefore, the delay

in his Section 161 CrPC statement impairs his assertion of being an

eyewitness, making it unworthy of acceptance;

(iv) Although Paras Nath Chaudhury (PW-1), Mahant Ashwani Das

(PW-25), and Rama Devi (PW-24) have testified to the presence of

Shashi Bhushan Singh (PW-42) as an eyewitness, this assertion

should not be accepted. The fardbeyan (Exhibit P-50), being the first

written account made immediately after the incident, is

unexceptionable. Furthermore, the unexplained delay of five days

in recording the statement of Shashi Bhushan Singh (PW-42) as an

eyewitness dents the credibility of his account.

(v) For the same reasons, the reliance of the prosecution on the court

testimony of Amarendra Kumar Sinha (PW-10), averring the

presence of Shashi Bhushan Singh (PW-42) at the place of

occurrence, contrary to his fardbeyan, is erratic and untrustworthy.

Amarendra Kumar Sinha (PW-10), did not entirely support the

prosecution case, yet being conscious of the fact that he was the

informant of the fardbeyan, he could not completely resile. His dock

version about the presence of Shashi Bhushan Singh (PW-42) has

been rightly disbelieved.

Testimony of Paras Nath Chaudhury (PW-1)

11. Paras Nath Chaudhury (PW-1) is categoric about his presence in the

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 10 of 40 hospital at about 6:40–7:00 p.m. on 13.06.1998 to visit Brij Bihari Prasad.

He named the persons who were present with him in the hospital room,

which includes Mahanth Ashwani Das (PW-25). The testimony captures

the following:

(i) Brij Bihari Prasad went for a walk along with the people of his

constituency and supporters who had come to see him. The police

personnel assigned for his protection also accompanied him.

(ii) After some time, two vehicles – a white Sumo car (Registration No.

BR-1P-1818) and a white Ambassador car – came into the hospital

and stopped at a distance of about 20 steps in front of Brij Bihari

Prasad.

(iii) Bhupendra Nath Dubey (since deceased) alighted from the Sumo

car, which was also carrying 2-3 more persons. 2-3 other people

also alighted from the Ambassador car.

(iv) Bhupendra Nath Dubey (since deceased) pointed towards Brij

Bihari Prasad and ordered that he be killed, while he himself also

started firing shots. Others joined him in the firing.

(v) Paras Nath Chaudhury (PW-1) specifically identified Satish Pandey

(since deceased) as an occupant of the Ambassador car.

(vi) Vijay Kumar Shukla @ Munna Shukla (A-8), who was a legislator

from Lal Ganj, got down from the Ambassador car, while Mantu

Tiwari (A-4), along with 1-2 more people, alighted from the Sumo.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 11 of 40

(vii) Paras Nath Chaudhury (PW-1) saw Mantu Tiwari (A-4) but did not

know his name. He came to know about the name subsequently

from Amarendra Kumar Sinha (PW-10) and Shashi Bhushan Singh

(PW-42).

(viii) Mantu Tiwari (A-4) was carrying a big firearm while Bhupendra Nath

Dubey (since deceased) was carrying a small firearm. The other

assailants were carrying either a revolver or a small firearm.

(ix) Bodyguard Lakshmeshwar Sahu who was carrying a carbine, was

also fired upon.

(x) As a result of the firing, both Lakshmeshwar Sahu and Brij Bihari

Prasad collapsed.

(xi) While leaving, Bhupendra Nath Dubey (since deceased) took the

carbine that belonged to Lakshmeshwar Sahu and raised the slogan

“Jai Bajrang Bali”.

(xii) After the assailants left, Paras Nath Chaudhury (PW-1) and other

visitors went near the dead bodies of Brij Bihari Prasad and

Lakshmeshwar Sahu.

(xiii) Paras Nath Chaudhury (PW-1) identified both Mantu Tiwari (A-4)

and Vijay Kumar Shukla @ Munna Shukla (A-8) in the court.

(xiv) While Paras Nath Chaudhury (PW-1) identified Rajan Tiwari (A-9)

in the court, he testified that Rajan Tiwari (A-9) was not present at

the place of occurrence. Paras Nath Chaudhury (PW-1) had not

seen Suraj Bhan Singh (A-1) and Shashi Kumar Rai (A-7) at the

place of occurrence.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 12 of 40

(xv) Paras Nath Chaudhary (PW-1) establishes the presence of

Amarendra Kumar Sinha (PW-10), Arbind Singh (PW-13), Shashi

Bhushan Singh (PW-42), Ram Nandan Singh (PW-12), Mahanth

Ashwani Das (PW-25), Rabindra Bhagat (PW-14), one Kanti,

resident of Jamui, Kamakhya Narain Singh (PW-15), Ram Niranjan

Chaudhary (A-6), Vijay Jha (PW-51) and 2-3 other persons at the

IGIMS hospital.

12. The cross-examination of Paras Nath Chaudhury (PW-1) brings the

following aspects to light:

(i) He accepted that Rama Devi (PW-24) was his sister and that she

was present in the court on the day of the hearing but left while his

evidence was being recorded.

(ii) He affirmed that Brij Bihari Prasad was admitted to the hospital 10-

12 days before the occurrence.

(iii) Before the date of occurrence, he met Brij Bihari Prasad in the

hospital on 4-5 occasions.

(iv) Brij Bihari Prasad, being in judicial custody, was admitted to IGIMS

hospital by the jail administration.

(v) He accepted that his sister, Rama Devi (PW-24), had contested

Lok Sabha elections in the past. Rama Devi (PW-24) contested

Vidhan Sabha elections after the death of Brij Bihari Prasad.

(vi) He states that he had also taken part in the election campaign of

Rama Devi (PW-24).

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 13 of 40

(vii) He denied knowing the fact that Devendra Nath Dubey, one of the

candidates of Motihari constituency, was the main rival of Rama

Devi (PW-24).

(viii) He further denied that Brij Bihari Prasad along with his brother,

Shyam Bihari Prasad, murdered Devendra Nath Dubey.

(ix) He affirmed his presence at the place of occurrence and denied

the claim that he did not witness the incident.

(x) He refuted the suggestion that being the brother-in-law of Brij

Bihari Prasad, he is giving false evidence.

(xi) He also denied the claim that he was deposing at the behest of his

sister Rama Devi (PW-24).

(xii) He reiterates that Mahanth Ashwani Das (PW-25) and others were

present at the hospital.

(xiii) Two guards, which included Lakshmeshwar Sahu, were walking

beside Brij Bihari Prasad.

(xiv) After the firing, the hospital staff and other people present started

running in different directions.

(xv) Rama Devi (PW-24) came to the hospital after the incident. He

testifies to seeing her cry beside the dead body of Brij Bihari

Prasad.

(xvi) Police officers examined the dead body of Brij Bihari Prasad and

prepared an Inquest Report. He denies signing the Inquest Report

or any other document.

(xvii) He had gone to the hospital the next morning on 14.06.1998.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 14 of 40 (xviii) He mentioned that his police statement was recorded about 10-12

hours12 after the incident but could not recall the exact date since

it was taken seven years ago.

13. Though it was pointed out that Paras Nath Chaudhury (PW-1), in his

testimony, could not remember the number of the hospital room or

whether it was south-facing or not, this aspect would not, in our opinion,

dent his core testimony. It is apposite to note that Paras Nath Chaudhury

(PW-1) was aware that the hospital room was on the ground floor and

there was a verandah after crossing 4-5 rooms on the west side. He

further stated that there was a cycle stand, a vacant place for sitting, and

a road which joins Bailey Road on the west side.

14. Paras Nath Chaudhury13 (PW-1) accepts that he did not seek prior

permission from the court or the jail authorities to visit Brij Bihari Prasad

in the hospital, nor did he make any entry into the hospital register. This

is also true for other visitors, a position accepted by the prosecution. The

absence of a register entry or prior permission, a factor to be taken into

consideration, is not sufficient reason to discard bounteous and credible

evidence and material establishing that Brij Bihari Prasad, a political

leader with influence, had numerous visitors and supporters meeting him

at the hospital. The fardbeyan (Exhibit-50) and the ocular

12 See Trial Court Record, Vol. II, p.58.

13 See para 11(xv).

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 15 of 40 evidence of Rama Devi14 (PW-24) and Mahanth Ashwani Das15 (PW-

25), establish the presence of Paras Nath Chaudhury (PW-1) and other

visitors. Further, the following witness accounts establish the presence

of visitors and eyewitnesses:

➢ Amarendra Kumar Sinha (PW-10) has deposed and accepted the

presence of Arbind Singh (PW-13), Shashi Bhushan Singh (PW-

42), Ram Niranjan Chaudhary (A-6) and 7-8 other persons.

➢ Arbind Singh (PW-13), who was declared hostile, accepted that

Amarendra Kumar Sinha (PW-10), Shashi Bhushan Singh (PW-

42) and 5-7 other persons had come to the hospital.

➢ Rabindra Bhagat (PW-14), the injured witness who also turned

hostile, deposed to the presence of two other persons

accompanying Brij Bihari Prasad.

Once the presence of a witness at the place of occurrence is

proven, their testimony, if credible and truthful, should not be dismissed

solely based on non-compliance with hospital and prison protocols.

15. The reasoning given by the High Court to disregard and doubt the

eyewitness account of Paras Nath Chaudhury (PW-1), on the premise

that he ought to have been the informant because he is the brother-in-

law of Brij Bihari Prasad and was present at the hospital at the time of

occurrence, is conjectural and unfounded. This fact cannot ipso facto

14 See para 23.

15 See para 17(ii).

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 16 of 40 lead to the disavowal of his testimony. Such a presumption imposes a

rigid formula for determining who should be an informant, which the law

does not envision. It is an accepted and admitted position that the name

of Paras Nath Chaudhury (PW-1) has been mentioned in the fardbeyan

and in the FIR as one of the persons present at the hospital. Any person

can be an informant of a case, and the police may also register a case

on their own. The rationale of the High Court for dismissing the testimony

of Paras Nath Chaudhury (PW-1) is fundamentally flawed.

16. Yet another reason for rejecting his testimony stems from contradictions

about the presence of Rajan Tiwari (A-9) as an assailant at the hospital.

In his police statement, Paras Nath Chaudhury (PW-1) identified Rajan

Tiwari (A-9) as being at the hospital, but in his court testimony, he stated

that Rajan Tiwari (A-9) was not present. In our considered view, this

contradiction does not weaken Paras Nath Chaudhury’s (PW-1) account

of witnessing Mantu Tiwari (A-4) and Vijay Kumar Shukla @ Munna

Shukla (A-8) commit the offence. Indian law does not recognise the

doctrine – falsus in uno, falsus in omnibus. In Deep Chand and Others

v. State of Haryana16, this Court had observed that the maxim falsus in

uno, falsus in omnibus is not a sound rule to apply in the conditions of

this country. This maxim does not occupy the status of rule of law. It is

merely a rule of caution which involves the question of the weight of

evidence that a court may apply in the given set of circumstances.17 In

16 (1969) 3 SCC 890.

17 Ponnam Chandraiah v. State of Andhra Pradesh, (2008) 11 SCC 640.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 17 of 40 cases where a witness is found to have given unreliable evidence, it is

the duty of the court to carefully scrutinise the rest of the evidence, sifting

the grain from the chaff. The reliable evidence can be relied upon

especially when the substratum of the prosecution case remains intact.

The court must be diligent in separating truth from falsehood. Only in

exceptional circumstances, when truth and falsehood are so inextricably

connected as to make it indistinguishable, should the entire body of

evidence be discarded.

Testimony of Mahanth Ashwani Das (PW-25)

17. The deposition of Mahanth Ashwani Das (PW-25) equally supports the

prosecution case. His testimony captures the following:

(i) On 13.06.1998, he reached IGIMS hospital at about 7:00 p.m. to

meet Brij Bihari Prasad.

(ii) He confirmed the presence of Paras Nath Chaudhury (PW-1).

Amarendra Kumar Sinha (PW-10), Arbind Singh (PW-13), Shashi

Bhushan Singh (PW-42), Ram Niranjan Chaudhary (A-6), Ram

Nandan Singh (PW-12), Onkar Singh and some other people at the

hospital.

(iii) After a passing remark by Ram Niranjan Chaudhary (A-6) that it

was hot in the hospital room, Brij Bihari Prasad stepped outside for

a stroll. Brij Bihari Prasad was accompanied by Ram Niranjan

Chaudhary (A-6), Lakshmeshwar Sahu and other security

personnel.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 18 of 40

(iv) In the meanwhile, a Sumo car and an Ambassador car came inside

the hospital campus. About 10-12 persons alighted from the said

vehicles and moved toward Brij Bihari Prasad.

(v) Mantu Tiwari (A-4) was carrying a carbine and others were carrying

pistols.

(vi) He specifically identified Bhupendra Nath Dubey (since deceased),

Shri Prakash Shukla @ Shiv Prakash Shukla (since deceased),

Rajan Tiwari (A-9), Vijay Kumar Shukla @ Munna Shukla (A-8) and

Satish Pandey as the persons who alighted from the

aforementioned vehicles.

(vii) Mantu Tiwari (A-4), Bhupendra Nath Dubey (since deceased) and

Shri Prakash Shukla @ Shiv Prakash Shukla (since deceased)

fired at Brij Bihari Prasad. Others were also firing indiscriminately

in different directions.

(viii) Vijay Kumar Shukla @ Munna Shukla (A-8), Satish Pandey and

Rajan Tiwari (A-9) shot at Lakshmeshwar Sahu.

(ix) On being shot, Brij Bihari Prasad and Lakshmeshwar Sahu

collapsed.

(x) Bhupendra Nath Dubey (since deceased) took the carbine

belonging to Lakshmeshwar Sahu and thereafter exclaimed that

the work had been done. He raised the slogan “Jai Bajrang Bali”.

(xi) His signed statement (Exhibit-29) was also recorded by a judicial

magistrate.

(xii) The occurrence took place at about 8:30 p.m.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 19 of 40

(xiii) The police and CBI had interrogated him in this regard.

18. We have carefully scrutinized the cross-examination of Mahanth Ashwini

Das (PW-25). His cross-examination states:

(i) Mahanth Ashwani Das (PW-25) was introduced to Brij Bihari

Prasad in 1996. This was around the same time Mahanth Ashwani

Das (PW-25) became a disciple under Sanatan Dharma.

(ii) He had also known Rama Devi (PW-24), wife of Brij Bihari Prasad,

since 1996.

(iii) Rama Devi (PW-24) was present in the court while his testimony

was being recorded. However, Mahanth Ashwani Das (PW-25)

denies speaking to her.

(iv) Mahanth Ashwini Das (PW-25) states that while there was no

particular reason to meet Brij Bihari Prasad on 13.06.1998, he

would generally meet Brij Bihari Prasad whilst in Patna.

(v) Earlier also he had visited Brij Bihari Prasad in the hospital on

another occasion, but he could not remember the date and time of

this meeting.

(vi) He met Brij Bihari Prasad approximately 8-10 days prior to the date

of incident.

(vii) He did not know the specific treatment for which Brij Bihari Prasad

was admitted to the hospital. He states that the treatment had been

going on for about one and a half months.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 20 of 40

(viii) He denies having knowledge of any case(s) pending against Brij

Bihari Prasad.

(ix) He states that he is unaware of any case pending against him.

However, he accepts that way back in 1979, a murder case was

registered against him, for which he had remained in jail for 3-4

months.

(x) He states that he was sentenced to life imprisonment and filed an

appeal in 1987; however, he was uncertain whether the appeal

was still pending or had been dismissed, and he could not recall

the grounds for the appeal.

(xi) He did not have any documentary proof of visiting the hospital on

13.06.1998.

(xii) He had not made any signatures on the death summary report and

the seizure memo.

(xiii) He did not know if the wife of Onkar Singh (since deceased) had

given a police statement that her husband was murdered by Brij

Bihari Prasad due to a contract dispute.

(xiv) Mahanth Ashwani Das (PW-25) had deposed about remaining at

the place of occurrence after the firing. He saw the police coming

and lifting the dead bodies of Brij Bihari Prasad and

Lakshmeshwar Sahu. He left the hospital for the residence of Brij

Bihari Prasad at 9:30 p.m., where several people, including

Kamakhya Narain Singh (PW-15), Shiv Ji Prasad, Ram Nandan

Singh (PW-12), Onkar Singh, and Raj Bala Verma (Collector,

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 21 of 40 Patna), had already gathered. Later that night, on 14.06.1998,

around 12:30 a.m., he departed for Muzzaffarpur Math.

(xv) He was arrested on 04.05.2006 in Patna. Thereafter, he was given

protection by the Bihar Government to give evidence in the present

trial. Armed security guards, who were generally not present with

him, used to accompany him whilst going to the court.

(xvi) He states that he used to reach Smriti Bhawan of Brij Bihari Prasad

at about 5:00 a.m. Rama Devi (PW-24), her driver and security

guards reside at the Smriti Bhawan.

(xvii) During the firing he had hidden about 30-40 steps away from the

hospital room.

(xviii)He denies the suggestion of giving false evidence due to his close

relationship with Brij Bihari Prasad.

19. As noted above, the High Court has rejected the testimony and

complicity of the accused by Mahant Ashwani Das (PW-25) on the

ground that he is himself an accused in a murder case and had

absconded despite being convicted in appeal, while he was being

examined as a witness in the present case. The High Court had also held

that Mahant Ashwani Das (PW-25) had the patronage of Rama Devi

(PW-24) and the deceased Brij Bihari Prasad.

20. The criminal background of a witness necessitates that the courts

approach their evidence with caution. The testimony of a witness with a

chequered past cannot be dismissed as untruthful or uncreditworthy

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 22 of 40 without considering the surrounding facts and circumstances of the case,

including their presence at the scene of the offence. In cases involving

conflicts between rival gangs or groups, the testimony of members from

either side is admissible and relevant. If the court is convinced of the

veracity and truthfulness of such testimony, it may be considered. Courts

typically assess the broader context to determine if there is sufficient

corroboration, as long as there are no valid reasons to discredit the

evidence. The crucial test is whether the witness is truly an eyewitness

and whether their testimony is credible. If their presence at the scene is

established beyond doubt, their account of the incident can be relied

upon. Such evidence cannot be discarded merely on the grounds of

criminal background.18

Testimony of Amarendra Kumar Sinha (PW-10)

21. No doubt, Amarendra Kumar Sinha (PW-10) turned hostile, but his core

deposition captures the following:

(i) He accepts having recorded the fardbeyan (Exhibit-50) on

13.06.1998 at about 9 p.m. It bears his signatures which are

marked Exhibits 12 and 12/1.

(ii) He had gone to the hospital at about 6:00 – 6:30 p.m. Some of the

people, including Arbind Singh (PW-13), Shashi Bhushan Singh

(PW-42) and 7-8 other persons, whom he did not remember,

accompanied him.

18 See State of U.P. v. Farid Khan and Others, (2005) 9 SCC 103. Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 23 of 40

(iii) He met Brij Bihari Prasad at about 6:30 p.m. in the ward. He states

that the incident took place at about 8:15 p.m., and he, along with

the others, stayed there till after the incident.

(iv) At the time of the incident, Amarendra Kumar Sinha (PW-10) along

with Arbind Singh (PW-13), Shashi Bhushan Singh (PW-42), Ram

Niranjan Chaudhary (A-6) and some others, had come out for a

stroll with Brij Bihari Prasad.

(v) Two vehicles, a Sumo and an Ambassador car, had come in. 5-6

persons alighted from the two vehicles and moved towards Brij

Bihari Prasad. Thereafter, one of the assailants pointed towards

Brij Bihari Prasad, identifying him as the Minister. The assailants

then started firing. Brij Bihari Prasad and Lakshmeshwar Sahu

were shot at, and they collapsed. Amarendra Kumar Sinha (PW-

10) and others ran towards the parking lot. One of the accused took

the carbine of Lakshmeshwar Sahu. While exiting the hospital,

slogans of “Jai Bajrang Bali” were raised by the assailants. They

exited in the same vehicles from the east gate.

(vi) He does not remember the registration number of the vehicles. He,

along with the other visitors present there, had informed the

hospital staff, who in turn, informed the police.

(vii) He identified Bhupendra Nath Dubey (since deceased) and Mantu

Tiwari (A-4). He could not identify the other accused. He claimed

that Bhupendra Nath Dubey (since deceased) and Mantu Tiwari

(A-4) were carrying pistols.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 24 of 40

(viii) Mantu Tiwari (A-4) was not present in the court when Amarendra

Kumar Sinha (PW-10) was being examined. However, he identified

Ram Niranjan Chaudhary (A-6) who was present in the court.

(ix) As he did not recognize the other accused, he was declared hostile

and was allowed to be cross-examined by the prosecution.

(x) In his cross-examination, he denied that Mantu Tiwari (A-4) fired

from his sten gun.

(xi) He also denied the presence of Paras Nath Chaudhury (PW-1),

claiming that he had not seen him in the hospital.

(xii) However, he accepts in the cross-examination that he had put his

signatures on the fardbeyan.

(xiii) He was not cross-examined at length by the defence.

22. We have already referred to judgments of this Court while examining the

doctrine of falsus in uno, falsus in omnibus. The same principles equally

apply when the court examines the statement of a witness who has been

declared hostile by the prosecution. In a catena of judgments, this Court

has observed that the evidence of a hostile witness is not to be

completely rejected, so as to exclude versions that support the

prosecution. Rather, the testimony of the hostile witness is to be

subjected to close scrutiny, thus enabling the court to separate truth from

falsehood, exaggerations and improvements. Only reliable evidence

should be taken into consideration. The court is not denuded of its power

to make an appropriate assessment. The entire testimony of a hostile

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 25 of 40 witness is discarded only when the judge, as a matter of prudence, finds

the witness wholly discredited, warranting the exclusion of the evidence

in toto.19 The creditworthy portions of the testimony should be considered

for the purpose of evidence in the case. It is in this context that we have

to examine the testimony of Amarendra Kumar Sinha (PW-10), the

complainant/informant, who gave the fardbeyan (Exhibit P-50) on which

basis the FIR (Exhibit P-50/51) was registered.

Testimony of Rama Devi (PW-24)

23. Rama Devi (PW-24) confirmed the presence of the witnesses – Paras

Nath Chaudhury (PW-1), Mahanth Ashwani Das (PW-25), and

Amarendra Kumar Sinha (PW-10) at the IGIMS hospital. On 13.06.1998,

Rama Devi (PW-24) had taken food to the hospital at about 2:50 p.m.

and stayed there till about 7:00 p.m. From the hospital, she went to

Maurya Lok to purchase some items for her sons and remained there for

about one and a half hours. Whilst leaving Maurya Lok, she learnt about

the attack on her husband, Brij Bihari Prasad. She immediately reached

IGIMS hospital where she saw Brij Bihari Prasad and Lakshmeshwar

Sahu lying dead in a pool of blood. Several people had gathered there.

She established the presence of Paras Nath Chaudhury (PW-1),

Mahanth Ashwani Das (PW-25), and Amarendra Kumar Sinha (PW-10)

at the hospital.

19 See C. Muniappan and Others v. State of Tamil Nadu, (2010) 9 SCC 567. Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 26 of 40

24. We will exclude the testimony of Rama Devi (PW-24) regarding the

individuals who arrived in the two vehicles and the detailed version about

the occurrence which she heard from the people present there, including

Paras Nath Chaudhury (PW-1), Mahanth Ashwani Das (PW-25), and

Amarendra Kumar Sinha (PW-10), which is hearsay. However, her

testimony establishing the presence of Paras Nath Chaudhury (PW-1),

Mahanth Ashwani Das (PW-25), and Amarendra Kumar Sinha (PW-10)

is direct evidence and cannot be discarded. Rama Devi (PW-24) was at

the hospital for a considerable time before and after the incident. Her

version is factually accurate and fosters confidence. Thus, the testimony

of Rama Devi (PW-24) can be used to partly corroborate and affirm the

testimonies of Paras Nath Chaudhury (PW-1), Mahanth Ashwani Das

(PW-25), and Amarendra Kumar Sinha (PW-10).

25. The testimony of Rama Devi (PW-24) is also relevant from the point of

view of motive, a question which is not contentious, as is clear from the

questions posed to her in her cross-examination. She has affirmed

having contested the Lok Sabha elections against Devendra Nath

Dubey, who was murdered. Brij Bihari Prasad, her husband, was

implicated in the said case as an accused. Her husband was also

arrested in MEDHA scam by the CBI. He was subsequently lodged in

Beur Jail. Due to his ill health, he was taken to Patna Medical College

from where he was referred to IGIMS hospital.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 27 of 40

26. Mantu Tiwari (A-4) is the nephew of the late Bhupendra Nath Dubey

(since deceased), who was the brother of Devendra Nath Dubey, a

political rival of Rama Devi (PW-24). Devendra Nath Dubey was killed a

day before the re-poll for the Motihari Lok Sabha Constituency. Brij Bihari

Prasad was named as an accused in the case. The longstanding

animosity is further highlighted by the fact that Vijay Kumar Shukla @

Munna Shukla (A-8) is the brother of Chottan Shukla and Bhutkun

Shukla, who were allegedly killed by the henchmen of Brij Bihari Prasad.

Further, Rama Devi (PW-24) testified that in 1987, there was an

assassination attempt on her husband, Brij Bihari Prasad, statedly

orchestrated at the behest of Raghunath Pandey (chargesheeted in the

present case but since deceased), with Vijay Kumar Shukla @ Munna

Shukla (A-8), Chottan Shukla and Bhutkun Shukla involved in the attack.

Identification and non-recovery of vehicles and weapons

27. Paras Nath Chaudhury (PW-1) and Mahanth Ashwani Das (PW-25) have

identified the vehicles used by the accused on 13.06.1998. They have

specifically deposed about a Sumo bearing registration no. BR-1P-1818.

The Sumo and the Ambassador cars, which they have referred to in their

depositions, were not recovered. The weapons used in the offence,

including the carbine belonging to the deceased Lakshmeshwar Sahu,

also could not be recovered. However, given the facts and

circumstances of the case, the failure of the police to recover the vehicles

and the weapons is not sufficient to undermine the credibility of the

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 28 of 40 eyewitness accounts or the corroborative evidence regarding the cause

of the homicidal deaths of Brij Bihari Prasad and Lakshmeshwar Sahu.

The ocular version of the witnesses should not be disregarded solely

because the weapon used in the crime and the vehicles allegedly used

by the accused were not located or seized by the police.20

28. It is significant to note that the vehicle No. BR-1P-1818 (Sumo), as per

the deposition of the second IO, Shashi Bhushan Sharma (PW-54), had

been taken under a hire-purchase agreement by the late Devendra Nath

Dubey, brother of Bhupendra Nath Dubey (since deceased), from a

finance company – SBR Private Limited, Calcutta. The said assertion

had remained unchallenged in the cross-examination of Shashi Bhushan

Sharma (PW-54). The vehicle No. BR-1P-1818 is also mentioned in the

fardbeyan (Exhibit P-50) of Amarendra Kumar Sinha (PW-10).

Forwarding of the FIR

29. The impugned judgment has observed that the FIR (Exhibits 51 and

51/1) is ante-timed. The High Court, in its reasoning, highlights this as

one of the grounds for acquitting the accused. In the present case, the

first IO, SSP Yadav, passed away before he could depose. However,

registration of the FIR itself is not in doubt and debate and has been

deposed to by Amarendra Kumar Sinha (PW-10). We have evidence

with regard to the statement of eye-witnesses which were recorded

20 See Yogesh Singh v. Mahabeer Singh and Others, (2017) 11 SCC 195 which refers to several other

decisions. See also State of Rajasthan v. Arjun Singh and Others (2011) 9 SCC 115.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 29 of 40 under Section 161 CrPC on the night of occurrence, as is clear from the

depositions of Paras Nath Chaudhury (PW-1), Mahanth Ashwani Das

(PW-25), and Amarendra Kumar Sinha (PW-10). The inquest reports of

Brij Bihari Prasad and Lakshmeshwar Sahu (Exhibits 42/1 and 52) were

prepared on the same night and, thereafter, the post-mortem was

conducted by Dr. Arvind Kumar Singh (PW-7) at 12:30 a.m. and 1:30

a.m. respectively on 14.06.1998.

30. The occurrence having taken place at night on 13.06.1998, normally the

FIR should have been sent to the jurisdictional magistrate on

14.06.1998. However, 14.06.1998 being a Sunday was a holiday. The

FIR was forwarded to the jurisdictional magistrate on 15.06.1998. There

is, therefore, an explanation for the delay in forwarding a copy of the FIR

to the jurisdictional magistrate in terms of Section 157 of the CrPC. It is

trite law that a delay in forwarding the FIR to the jurisdictional magistrate

is not fatal to the prosecution case. This Court, in State of Rajasthan v.

Daud Khan21, has examined the case law on the subject and held that

when there is a delay in forwarding the FIR to the jurisdictional

magistrate and the accused raises a specific contention regarding the

same, they must demonstrate how this delay has prejudiced their case.

Mere delay by itself is not sufficient to discard and disbelieve the case of

the prosecution. If the investigation starts in right earnest and there is

sufficient material on record to show that the accused were named and

21 (2016) 2 SCC 607.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 30 of 40 pinpointed, the prosecution case can be accepted when evidence

implicates the accused. The requirement to dispatch and serve a copy

of the FIR to the jurisdictional magistrate is an external check against

ante dating or ante timing of the FIR to ensure that there is no

manipulation or interpolation in the FIR. If the court finds the witnesses

to be truthful and credible, the lack of a cogent explanation for the delay

may not be regarded as detrimental.

Police Statements of Eye-witnesses

31. The High Court, in its reasoning, takes an exception on the minor

discrepancies regarding the place and time of recording the statement

under Section 161 CrPC of Mahanth Ashwani Das (PW-25). Similarly,

the impugned judgment has adversely commented on the versions given

by Shashi Bhushan Singh (PW-42) and Mahanth Ashwani Das (PW-25)

as to who had reached the hospital at an earlier point in time.

Considering the efflux of time of more than 4-6 years between the date

of occurrence and recording of court testimony, these issues are at best

superficial and peripheral and would not warrant disregarding the

prosecution case. The questions posed to the witnesses were more in

the nature of a memory test rather than questions posed to test the

truthfulness and credibility of their core testimony. Equally, the

observation of the High Court on the statement under Section 161 CrPC

of Rama Devi (PW-24) to Rai Singh Khatri (PW-62), IO of the CBI, is

inconsequential. Section 161 CrPC statement of Rama Devi, in which

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 31 of 40 she had given the names and details of the persons who were present

in the hospital, cannot be brushed aside solely on this ground.

Statements under Section 161 CrPC are per se not evidence in the court.

Rama Devi’s statement under Section 161 CrPC was recorded on

13.06.1998 and the same was filed along with the chargesheet. She was

not cross-examined regarding the said statement.

32. The assertion that Rama Devi’s (PW-24) Section 161 CrPC statement

dated 13.06.1998 to Shashi Bhushan Sharma, IO (PW-54), has not been

included in the record is solely predicated on her cross-examination

conducted on 21.02.2006. Rama Devi's (PW-24) acknowledgement

during her cross-examination reflects a clear lapse in memory, likely due

to the nearly eight-year gap and the length of her questioning. It is a well-

established fact that SSP Yadav was the IO on 13.06.1998, making it

impossible for Shashi Bhushan Sharma (PW-54) to have recorded her

Section 161 CrPC statement on that date. Moreover, Shashi Bhushan

Sharma (PW-54) was never questioned about whether he had recorded

Rama Devi’s (PW-24) Section 161 CrPC statement on 13.06.1998. In

fact, both the defence and prosecution agree that Shashi Bhushan

Sharma (PW-54) took over the investigation on 14.07.1998.

Attesting Witnesses and Retaliatory Firing

33. The contention that Paras Nath Chaudhury (PW-1) and Mahanth

Ashwani Das (PW-25) were not attesting witnesses to the inquest report,

fardbeyan, FIR, etc. is inconsequential and does not in any way weaken

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 32 of 40 their ocular evidence. Similarly, the contention that they were not injured

during the cross-fire is nugatory as it is clear from the evidence on record

that it was Brij Bihari Prasad who was the target of the attack. The armed

bodyguards who were attacked had retaliated. Although it is true that the

depositions of Paras Nath Chaudhury (PW-1) and Mahanth Ashwani Das

(PW-25) do not mention the retaliatory firing by the bodyguards, an

independently proven fact, this alone is not a sufficient ground to dismiss

their presence at the spot or their versions including the culpability of the

persons who had committed the offence.

Offence under Section 307 read with Section 34 of the IPC

34. Rabindra Bhagat (PW-14) had averred to his presence at IGIMS hospital

on 13.06.1998 in the evening at about 7-7:30 p.m. when he was shot at

and received a bullet injury in his left arm during the attack on Brij Bihari

Prasad. He called his brother, Sanjeev Kumar, who took him to Alok

Nursing Home for treatment. Rabindra Bhagat (PW-14), however, did

not identify the culprits. Dr. Tarkeshwar Prasad Singh (PW-8) examined

injured Rabindra Bhagat (PW-14) on 13.06.1998 at 9:30 P.M. and issued

the injury report dated 08.08.1998 (Exhibit-10). The deposition of Dr.

Tarkeshwar Prasad Singh (PW-8) refers to the entry and exit wounds on

the left arm of Rabindra Bhagat (PW-14) inflicted by a gunshot

approximately two hours before the medical examination. In any case, it

is proven that in spite of the number of people present, there was

extensive firing and the use of firearms with intent to kill. The charge

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 33 of 40 under Section 307 of the IPC is, therefore, established and proved.

The Charge of Criminal Conspiracy

35. The case was transferred to CBI by Notification dated 07.03.1999,

pursuant to which it conducted an investigation. The CBI filed two

supplementary chargesheets implicating Suraj Bhan Singh (A-1), Ram

Niranjan Chaudhary (A-6), Shashi Kumar Rai (A-7) and Raghunath

Pandey, who had since died, as conspirators who were responsible for

the incident. A supplementary chargesheet was filed against Shashi

Kumar Rai (A-7) on 08.11.2000, followed by a second supplementary

chargesheet dated 20.04.2001 against Raghunath Pandey.

36. The prosecution case makes a charge of conspiracy based on an alleged

meeting which took place in Beur Jail where Suraj Bhan Singh (A-1) was

incarcerated. Suraj Bhan Singh (A-1) is said to have reportedly met with

Vijay Kumar Shukla @ Munna Shukla (A-8), Lallan Singh (A-3) and Ram

Niranjan Chaudhary (A-6). However, the witnesses to this meeting, Sone

Lal (PW-32) and Lal Babu Chaudhury (PW-39), turned hostile and did

not support the prosecution version. This evidence is based on the

testimony of Shashi Bhushan Sharma (PW-54) that Sone Lal (PW-32)

and Lal Babu Chaudhury (PW-39) informed him about the said jail

meeting on 19.08.1998, nearly two months after the date of occurrence.

Shashi Bhushan Sharma (PW-52) failed to establish how he discovered

the purported version of Sone Lal (PW-32) and Lal Babu Chaudhury

(PW-39). He was also unable to establish that Sanjay Singh, the inmate

whom Sone Lal (PW-32) and Lal Babu Chaudhury (PW-39) had Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 34 of 40 allegedly visited, was present in Beur Jail 2-3 days before the incident.

There is no record of Sone Lal (PW-32) and Lal Babu Chaudhury (PW-

39) visiting Beur Jail.

37. Further, the claim of the prosecution regarding the dubious character of

Ram Niranjan Chaudhary (A-6) and that he encouraged Brij Bihari

Prasad to go outside his hospital room for a walk is not directly

implicatory. Rather, it is an assumption requiring substantial evidence to

be established. It only expresses doubt about Ram Niranjan Chaudhary

(A-6), an insider who could have given information.

38. To prove the charge of conspiracy, the prosecution further relied upon

the telephone records of Mokama landline number 32772, which was

supposedly subscribed to by Suraj Bhan Singh (A-1). The telephone

records indicate calls made from Mokama landline number 32772 to

Shashi Kumar Rai (A-7), Sunil Singh (A-5) (since deceased) and Munna

Shuka (A-8). The prosecution relied on the report dated 29.10.1999

(Exhibit-1) submitted by Shiya Sharan Ram (PW-2), Sub-Divisional

Engineer (Vigilance), Bharat Sanchar Nigam Limited, which stated that

the landline number was subscribed in the name of one Shrawan Kumar

Agrawal but was operational in the house of Suraj Bhan Singh (A-1) at

Mokama. However, the said report of Shiya Sharan Ram (PW-2) is

based on the physical verification of S.M.M. Rahman, Sub-Divisional

Engineer, Barh and Jitan Mehta, Junior Telecom Officer, Hatida, both of

whom, have not been examined. Further, Shrawan Kumar Agrawal has

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 35 of 40 also not been examined. The original report prepared by S.M.M.

Rahman and Jitan Mehta is also not on record. The prosecution version

establishing the landline number as belonging to Suraj Bhan Singh (A-1)

hinges on the testimony of M.L. Meena (PW-60), Assistant IO, CBI.

However, M.L. Meena (PW-60) accepts in his testimony that he did not

enter the house to verify the existence of a telephone set. Rather, his

entire version is based on his interaction with the step-mother of Suraj

Bhan Singh (A-1). The telephone records indicating the exchange of

calls between 11.05.1998 and 11.06.1998, as deposed by Rai Singh

Khatri (PW-62), do not substantively prove and establish the conspiracy

charge in the absence of revelatory and weighty incriminating material.

39. The CBI also relied upon the post-incident celebration held in village

Khanjah Ghat on 15.06.1998 at the behest of Vijay Kumar Shukla @

Munna Shukla (A-8). Amod Kumar (PW-11), Sushil Kumar Singh (PW-

35) and Pooja (PW-37), who were statedly witnesses to the post-incident

celebration turned hostile. The statement of Avadhesh Kumar Singh

(PW-36), who did not turn hostile, was recorded one year and two

months after the date of occurrence. The prosecution has not placed any

material on record to showcase how M.L. Meena, IO, CBI (PW-60) had

traced Avadhesh Kumar Singh (PW-36), though Rai Singh Khatri, IO,

CBI (PW-62) had stated that M.L. Meena, IO, CBI (PW-60) had got in

touch with Avadhesh Kumar Singh (PW-36). The evidence of Avadhesh

Kumar Singh (PW-36) and Pooja (PW-37) establishing the presence of

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 36 of 40 Shashi Kumar Rai (A-7), since deceased, in the post-incident celebration

is not entirely credible. In any case, Shashi Kumar Rai (A-7) passed

away during the pendency of the present appeals.

40. To fortify the charge of conspiracy, the prosecution has further relied on

the fax message (Exhibit-6) regarding the threat to the life of Brij Bihari

Prasad. This fax message would not help the prosecution implicate the

accused persons – Suraj Bhan Singh (A-1), Mukesh Singh (A-2), Lallan

Singh (A-3) and Captain Sunil Singh (A-5) (since deceased) – on the

charge of criminal conspiracy.

Discrepancy regarding the presence of Rajan Tiwari (A-9)

41. As noticed above, Paras Nath Chaudhury (PW-1) in his deposition had

categorically stated that Rajan Tiwari (A-9) was not present with the

other accused who had murdered Brij Bihari Prasad and Lakshmeshwar

Sahu. Even though Mahanth Ashwani Das (PW-25) had referred to the

presence of Rajan Tiwari (A-9), given the discrepancy in the statement

of the two eye-witnesses, we feel that the benefit of doubt must be given

to Rajan Tiwari (A-9).

Conclusion

42. Even if we completely exclude the testimony of Shashi Bhushan Singh

(PW-42), the depositions of Paras Nath Chaudhury (PW-1), Mahanth

Ashwani Das (PW-25) and, to some extent of Rama Devi (PW-24) and

Amarendra Kumar Sinha (PW-10) with other evidence and material are

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 37 of 40 conclusive enough to prove the charge against Mantu Tiwari (A-4) and

Vijay Kumar Shukla @ Munna Shukla (A-8). Bhupendra Nath Dubey and

Captain Sunil Singh (A-5) are no more, and, therefore, we need not

consider the evidence against them. Similarly, we need not examine the

depositions implicating Shashi Kumar Rai (A-7), who died during the

pendency of the present appeals.

43. Regarding the question of conspiracy and the evidence against Suraj

Bhan Singh (A-1), Mukesh Singh (A-2), Lallan Singh (A-3) and Ram

Niranjan Chaudhary (A-6), there is no direct ocular evidence implicating

them through the testimonies of Paras Nath Chaudhury (PW-1) and

Mahanth Ashwani Das (PW-25). Since the charge of conspiracy is not

substantiated, we will not interfere with the judgment of the High Court

acquitting them, and they are entitled to the benefit of the doubt.

44. In light of the above discussion, we hold and direct as under:

a) The charge under Section 302 read with Section 34 of the IPC

against Mantu Tiwari (A-4) and Vijay Kumar Shukla @ Munna

Shukla (A-8) for the murders of Brij Bihari Prasad and

Lakshmeshwar Sahu is proven and established beyond reasonable

doubt.

b) The charge under Section 307 read with Section 34 of the IPC

against Mantu Tiwari (A-4) and Vijay Kumar Shukla @ Munna

Shukla (A-8) for attempting to murder, as held in paragraph 34

above, is proven and established beyond reasonable doubt.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 38 of 40

c) The conviction and sentence awarded to Mantu Tiwari (A-4) and

Vijay Kumar Shukla @ Munna Shukla (A-8) by the trial court under

Sections 302 and 307 read with Section 34 of the IPC are affirmed

and restored.

d) Consequently, Mantu Tiwari (A-4) and Vijay Kumar Shukla @

Munna Shukla (A-8) shall have to undergo imprisonment for life with

a fine of Rs. 20,000/- (Rupees Twenty Thousand Only) each under

Section 302 read with Section 34 of the IPC, and in addition to

undergo rigorous imprisonment for five years with a fine of Rs.

20,000/- (Rupees Twenty Thousand Only) each under Section 307

read with Section 34 of the IPC. Both the sentences shall run

concurrently. Section 428 of the CrPC shall apply. As default

punishment was not imposed by the trial court, we direct that in case

of non-payment of fine on each account, Mantu Tiwari (A-4) and

Vijay Kumar Shukla @ Munna Shukla (A-8) shall undergo rigorous

imprisonment for six months.

e) Mantu Tiwari (A-4) and Vijay Kumar Shukla @ Munna Shukla (A-8)

are directed to surrender within two weeks from today to the

concerned jail authorities/court to serve the remainder of their

respective sentences. In case of failure to surrender, the authorities

shall take appropriate measures to arrest and detain them in

accordance with law.

f) Insofar as Suraj Bhan Singh (A-1), Mukesh Singh (A-2), Lallan

Singh (A-3), Ram Niranjan Chaudhary (A-6) and Rajan Tiwari (A-9)

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 39 of 40 are concerned, we give them benefit of doubt and uphold their

acquittal.

45. The appeals are partially allowed and the impugned judgment is set

aside in terms and vide the directions issued in paragraph 44 above.

Pending applications, if any, shall also stand disposed of.

......................................J. (SANJIV KHANNA)

......................................J. (SANJAY KUMAR)

......................................J. (R. MAHADEVAN)

NEW DELHI;

OCTOBER 03, 2024.

Crl.A. Nos. 2623-2631 of 2014 & Ors. Page 40 of 40