Suresh Sahu vs The State Of Bihar (Now Jharkhand)

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)

JUDGMENT

Mehta, J.

1. Heard.

2. The appellants1 herein faced trial before the 3rd

Additional Judicial Commissioner, Ranchi2 in

Sessions Trial No. 128 of 1991. Vide judgment dated

30th August, 1994, the learned trial Court convicted

the accused-appellants for the offences punishable Signature Not Verified Digitally signed by NEETU KHAJURIA Date: 2025.12.04 1 Hereinafter, referred to as the “accused-appellants”. 17:08:49 IST Reason: 2 Hereinafter, referred to as the “trial Court”.

1 under Section 120B, Section 302 and Section

302/149 of the Indian Penal Code, 18603. 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

Jharkhand at Ranchi4. 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

10th 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.

4. The accused-appellants surrendered on 1st 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

son, Gajendra Prasad Gupta5, had left his home on

11th 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,

on 12th 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

Bariatu Police Station on 12th May 1990 at R.M.C.H.,

Ranchi. On the basis of the said Fardbeyan (Exh. 1),

5 FIR No. 1858 dated 12th 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

Station on 13th 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

R.M.C.H., Ranchi, where he died on 12th 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

being Case No. 43/1990 dated 13th 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,

19736 (Section 351 of Bharatiya Nagarik Suraksha

Sanhita7) 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 Prasad 3rd Judicial Magistrate on 16th 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 Prasad 3rd Judicial Magistrate, on 16th 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

the subsequent written report (Exh. 5) dated 13th

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.,

Ranchi on 12th 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 Pradesh8, 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

Prasad Jaiswal v. State of Bihar9, 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

two FIRs, held that the Fardbeyan (Exh. 1) dated 12th

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

held that the written information (Exh. 5) dated 13th

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.

State of Himachal Pradesh10 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

30. In the first report dated 12th 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

13th 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

the incident i.e. (Exh. 1) dated 12th May, 1990 and

replacing it by subsequent report (Exh. 5) dated 13th

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

statement recorded on 19th 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

under Section 164 CrPC (Section 183 BNSS) on 21st

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

evident that the second statement dated 21st May,

1990 was recorded on the basis of an application

stating that the entire facts could not be disclosed in

the first statement dated 19th 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

40. Further, in the first statement dated 19th 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

assigned above11.

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

BNSS) dated 19th May, 1990 and 21st May, 1990,

which we have highlighted above.12

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.

Babu Ram13 observed as follows:-

“23. Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses.” (Emphasis supplied)

49. Similarly, in Munshi Prasad v. State of Bihar14,

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.

51 Conclusion: -

52. Hence, the impugned judgment dated 10th

February, 2023 rendered by the High Court affirming

the judgment dated 30th August, 1994 and order of

sentence dated 31st 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.

52