CRIMINAL APPEAL 38 of 1999 on 8 May 1999

ORAL JUDGMENT

Date : 04-04-2025

1. The criminal appeal No. 171 of 2004 ispreferred by the appellant/Arun Singh, who wasarrayed as accused No. 2, and Criminal Appeal No.296 of 2004 was preferred by appellant/Ajay Singh,who was arrayed as accused No. 1 in the FIR.However, in the judgment of the trial Court, ArunSingh was shown as accused No. 1 and Ajay Singhwas shown as accused No. 2. Arun Singh and AjaySingh are brothers. Both the Criminal Appeals i.e.171 of 2004 and 296 of 2004 are arising out of the common judgment in Sessions trial No. 170 of 2002on the file of Additional District and Sessions Judge,Fast-Track Court (FTC), IV Jamui dated 26.02.2004.Both the appellants were tried for the offencespunishable under Sections 302 read with 34 andunder Section 323 of the Indian Penal Code for themurder of Ram Bilash Singh @ Karoo Singh on05.05.1999, at about 12:00, noon at village Sabalpurand for causing hurt to Pawan Rekha Devi, wife ofthe deceased Ram Bilash Singh. It is relevant tomention that the father of the appellants, BrahmdeoSingh was arrayed as accused No. 3 in the FIR.

2. The case of the prosecution, as per thefardbeyan of the informant/Pawan Rekha Devi, is thatshe preferred the fardbeyan at 05:00 PM on08.05.1999, before the Officer In-charge of Laxmipur,Police Station contending that on 08.05.1999 atabout 08:00 A.M., Ram Bilash Singh @ Karoo Singhwas repairing the fence towards the west of his land,situated adjacent to his house. While digging hole forfixing the poles, the neighbours i.e. BrahmadeoSingh and Arun Singh obstructed him, inspite of the said protest, the husband of the informant i.e. RamBilash Singh @ Karoo Singh fixed the pegs. Onprompting, Brahmadeo Singh and Arun Singh abusedand threaten him, to teach a lesson and furtherstated that there will be bloodshed once, Ajay singhwill come to know about the incident.

3. Further, it is the case of the prosecutionthat on same day, i.e., 08.05.1999 at about 12:00Noon, Ajay Singh and Arun Singh, (the appellants)armed with iron rods and their family membersnamely, Brahmadeo Singh, (father of the appellants),Rubi Devi (wife of Arun Singh) and Sunita Devi (wifeof Ajay Singh), holding brick bats, came to thefencing site of the informant and they all startedremoving the pegs, for which the informant/ PawanRekha Devi obstructed. On that, all the accusedpersons started assaulting the informant/ PawanRekha Devi and dragged her towards their house.Thereafter, when the deceased/Ram Bilash Singh,tried to intervene and save the informant from thehands of the accused, both the appellants allegedlyassaulted the deceased/Ram Bilash Singh on tender parts of his body, with iron rods for which, he,sustained injuries on his temple and fell down anddied on the spot.

4. It is further alleged that Brahmdeo Singh, Rukmani Devi and Sunita Devi, caught hold of thedeceased and Sunita Devi snatched the wrist watchof Ram Bilash Singh. In the said incident, theinformant/Pawan Rekha Devi also sustained injurieson different parts of her body, including a cut belowher right elbow. The contents of the fardbeyanfurther disclose that several people of the localitywitnessed the occurrence. However, the names ofthe eye-witnesses were not mentioned in thefardbeyan.

5. Basing on the fardbeyan, a criminal casewas registered against the appellants and threeothers (Brahmdeo Singh, Rubi Devi and Sunita Devivide Case No. 38 of 1999 for the offences punishableunder Sections 302, 323, 379 r/w 34 of Indian PenalCode on 08.05.1999 at 5:00 P.M. on the file ofLaxmipur Police Station. Later, the Officer In-chargeof the Police Station investigated the case and submitted a charge-sheet on 12.12.1999/13.12.1999only against Ajay singh and further investigationcontinued against the other accused. On15/20.12.1999, asupplementary charge-sheet wasfiled against Arun Singh.

6. The Learned Chief Judicial Magistrate tookcognizance for the offence on 13.12.1999 andcommitted the case to the Sessions Court on11.03.2002. Subsequently, the case was transferredto the Additional District and Sessions Judge, FastTrack Court No. IV, Jamui on 19.12.2003. On22.05.2003, charges were framed against theappellants for the offences punishable under Section302 r/w 34 and Section 323 of IPC, read over andexplained to the appellants, in Hindi for which, theypleaded not guilty and claimed to be tried.

7. On behalf of the prosecution, P.Ws. 1 to 18

were examined and Exhibits 1 to 9 were got marked.

Sl. No. Name of prosecutionProsecution DetailswitnessP.W. 1Shashi KumarDoctorChaudharyP.W. 2Chandra Shekhar SinghHostileP.W. 3Rajendra SinghNot declared hostile butstated that he knows nothingP.W. 4Nuneshwar YadavNot declared hostile butstated that he knowsnothingP.W. 5Basuki Rameye-witnessP.W. 6Upendra Singheye-witnessP.W. 7Jai Prakash RamHostileP.W. 8Ram Awtar SinghEye-witness/ witness tofardbeyan and inquestreportP.W. 9Surendra Kr Singh @Eye-witnessBabloo SinghP.W.10Phuchhan SinghNot declared hostile butstated that he knowsnothingP.W.11Somar ManjhiNot declared hostile butstated that he knowsnothingP.W.12Raj Kumar ManjhiNot declared hostile butstated that he knowsnothingP.W.13Lalan Kumar SinghMinor son ofdeceased/eye-witnessP.W.14Pawan Rekha DeviWife of deceased/eye-witness/informant/injuredP.W.15Dr. Suresh Kr. MandalDoctor who examinedP.W. 14P.W.16Shankar Dayal SinghInvestigating Officer-who recordedfardbeyanP.W. 17Devendra NarayanAn advocate clerkSinghP.W. 18Braj Nandan SinghDeclared hostileSl.No. List of ExhibitsExhibit Details1Exhibit-1Postmortem Report of Ram Bilash Singh2Exhibit-2Fardbeyan 3Exhibit-3Signature of P.W. 8/Ramavatar Singh on Inquest Report4Exhibit-3/1Signature of witness Vishwanath Singh on Inquest Report5Exhibit-4Signature of the informant on Fardbeyan6Exhibit-5Injury Report7Exhibit-6Carbon copy of the Inquest Report8Exhibit-7Injury Slip of informant9Exhibit-8Formal FIR 10Exhibit-9Protest-cum-complaint petitionfiled by the informant11Exhibit-9/1Signatures of informant/P.W. 14 and her advocate on Protest-cum-complaint petition12Exhibit-9/2Signature of informant/P.W. 14 and her advocate on Protest-cum-complaint petition

8. On considering the entire material onrecord, the trial Court has acquitted the appellantsfor the offence punishable under Section 323 of IPC.But convicted them for the offence punishable underSection 304 part-I of IPC and they were sentenced toundergo rigorous imprisonment for a period of tenyears. Being aggrieved by the judgment of the trialCourt, the appellants filed Criminal Appeal in theyear 2004.

9. It is relevant to mention that the allegedincident occurred on 08.05.1999 and after full-fledged trial, the judgment was delivered by the trialCourt on 26.02.2004. In spite of preferring theappeals in the year 2004, the criminal appeals wereultimately heard and being disposed of by a commonorder in the year 2025 which means it took five longyears for conducting the trial and 21 years fordisposing of the appeals.

10. As none appeared for the appellants

since 2018, therefore, this Court was constrained toappoint Ms. Surya Nilambari as Amicus Curiae toassist the Court in these appeals.

11. Ms. Surya Nilambari, fairly reported to the Court that she had no contact with theappellants and therefore, this Court has called for thereport from the Superintendent of Police, Jamui,regarding the status of the appellants. Accordingly,this Court received the report from theSuperintendent of Police, Jamui, confirming that boththe appellants are alive.

12. Heard Ms. Surya Nilambari, the LearnedAmicus Curiae as well as Ms. Anita Kumari Singh, theLearned Additional Public Prosecutor for the State.

13. It is argued by the Learned AmicusCuriae that the genesis of the occurrence has notbeen established by the prosecution. She furthersubmitted that the case of the prosecution is that theincident occurred on 08.05.1999, at 8:00 AM whenthe deceased and the informant were digging theholes for making fence in the land which wasobstructed by Arun singh one of the appellant andBrahamdeo Singh, the father of the appellant anddespite of the protest, the informant and thedeceased continued to fence the land but there is noevidence on record to prove that there was a quarrelbetween the appellants and the deceased at 8:00 AMon 08.05.1999.

14. In order to support her contention, sherelied on the citations of the Hon’ble Apex Court incase of Arshad Hussain Vs. State of Rajasthanreported in (2013) 14 SCC 104 and RizanandAnother Vs. State of Chhattishgarh reported in

(2003) 2 SCC 661. The same shall be discussed atthe relevant point.She further contended that thecase of the prosecution is that initially, theappellants and others had attacked the informant at12:00 noon, but no sufficient evidence to prove thealleged dragging of the informant as to establish itthe same shall be discussed at the relevant point.

15. Secondly, the Learned Amicus Curiaesubmitted that the alleged incident, as per thefardbeyan is said to have occurred at 12:00 noon,the evidence of the Investigating Officer disclose thathe received the information about the murder of thedeceased at 03:30 PM for which, he made a Sanha.However, his evidence does not disclose that fromwhom, he received the information and as to why,there was a delay in recording the fardbeyan of theinformant. To support her contention, she relied onthe judgment of the Hon’ble Apex Court in case ofMahesh Trivedi Vs. State of Bihar reported in2024 SCC OnLine Patna 4698.

16. Thirdly, the Learned Amicus Curiaecontended that the place of the occurrence itself is

doubtful. As per the evidence of the prosecutionwitnesses, the alleged incident occurred at the landadjacent to the house of the deceased wherepoles/pegs were inserted in the holes, which werealleged to have been dug by the deceased. However,the police found the dead body of the deceased, inthe Verandah of the house of the deceased. Further,the Investigating Officer as well as the evidence ofthe informant clearly disclose that the fardbeyan wasrecorded by the SHO in the Verandah of thedeceased. She further contended that there is nomaterial before the Court to prove the place ofoccurrence and the prosecution has miserably failedto establish the place of occurrence which itselffalsifies the story of the prosecution. She alsocontended that there is no material on record toexplain how the dead body was moved from theplace of occurrence to the Verandah. In support toher contention, she relied on the judgment of theHon’ble Apex Court in the case of Syed Ibrahim Vs.State of Andra Pradesh reported in (2006) 10SCC 601.

17. Fourthly, it is contended by the Learned Amicus Curiaethat the testimony of theinformant/injured cannot be relied upon to convictthe appellants, as the medical evidence of theinformant contradicts her oral evidence. She furthercontended that the presence of the informant at theplace of occurrence itself is doubtful, as the evidenceof P.W. 14 is inconsistent particularly at Para No. 21of her evidence. The contents of para No. 21 revealsthat the informant waited waiting for Daroga ji, ather house for giving the fardbeyan. But on the otherhand, she claims to be unconscious, till the Policearrived at the place of occurrence. It is urged thatthe prosecution has miserably failed to prove thepresence of the informant at the time of the incident.

18. The Learned Amicus Curiae furthercontended that the trial Court miserably failed to askthe preliminary questions to the child witness i.e. theeye witness P.W. 13/Lalan Kumar Singh, to assess hiscompetency for deposing the evidence for which, sherelied on the judgment of Hon’ble Apex Court in the case of Pradeep Vs. State of Haryana reported in2023 SCC OnLine SC 777.

19. Lastly, it is contended by the LearnedAmicus Curiae that the appellants never claimed anyright to private defence, however, in absence of anysuch material, the trial Court considered thearguments of the defence counsel and convicted theappellants for the offence punishable under Section304 part-I of IPC contending that the appellantsfailed to establish the right to private defence whichis erroneous. It is also contended that theprosecution has miserably failed to prove anyintention on the part of the appellants to commitmurder. Hence, the appellants are entitled to thebenefit of doubt. In view of the submissions andcontentions, the Leaned Amicus Curiae prayed to setaside the judgment of the trial Court prayed to andacquit the appellants for the offence punishableunder Section 304 part-I of IPC.

20. On the other hand, the LearnedAdditional Public Prosecutor contended that theevidences of the eye witnesses i.e. P.Ws. 5, 6, 8 and

9 corroborate with the evidence of P.Ws. 13 and 14as to the manner of the incident. Further, theevidence of the official witnesses i.e. the Doctor andthe Investigating Officer also corroborate theevidence of the eye witnesses and, furthercontended that there is no error or irregularity in thejudgment passed by the trial Court and, therefore,prayed to upheld the judgment of trial Court.

21. The cardinal principles of the criminaljurisprudence are as follows:-

(i) The prosecution must prove the guilt ofthe accused beyond reasonable doubt.

(ii) The accused shall be presumed to beinnocent till the guilt is proven.

(iii) . It is the duty of the prosecution toestablish a nexus between the accused and thecommission of the offence.

22. It is not necessary to re-appreciate the entire evidence on record. The oral and documentaryevidence shall be re-appreciated only to the extentnecessary for determining the points of the appeal.The points of determination in the appeal are :-

(i) Whether the prosecution is able to provethe guilt of the appellants for the offence punishableunder Section 304 part-I of IPC ?

(ii) Whether the trial Court has rightlyconvicted the appellants for the offence punishableunder Section 304 Part-I of IPC ?

23. The initial charge-sheet was filed on12.12.1999 against Ajay Singh, while theinvestigation against other accused was pending.The supplementary charge-sheet was filed againstArun Singh on 05.12.2001, almost after two years.However, the supplementary charge-sheet disclosethat due to lack of evidence no charge-sheet was laidagainst Brahamdeo Singh, Ruby Devi and SunitaDevi. The Investigating Officer has not obtained anypermission from his superior authorities for omittingthe names of these accused from the charge-sheet.The record also reveals that Ajay Singh surrenderedbefore the Court on 16.09.1999. It is also relevant tomention that the names of the eye-witnesses to thealleged incident were not mentioned in thefardbeyan of P.W. 14. The contents of the fardbeyan disclose that all the accused assaulted the informantand dragged her towards their house, for which thedeceased Ram Bilash Singh @ Karoo Singh tried torescue her in that process Ajay Singh and ArunSingh/ the appellants assaulted the deceased withiron rods on his sensitive parts of the body i.e. thetemple and ribs, for which he fell down andsuccumbed to injuries on the spot.

24. It is the further case of the prosecutionthat Brahmadeo Singh, Ruby Devi and wife of AjaySingh allegedly caught hold of the deceased (who felldown) rendering him helpless and the wife of AjaySingh snatched his wrist watch.

25. The contents of the fardbeyan also

contradicts the alleged manner of the incident. Afterthe death of the deceased, the question of deceasedbeing helpless does not arise. Furthermore, thecontents of the fardbeyan disclose that the informantsustained multiple injuries on different parts of herbody including cut injury below her right elbow.

26. The evidence of P.W. 14 is crucial and ithas to be appreciated first. The evidence of P.W.

14/Pawan Rekha Devi disclose that on 08.05.1999 ataround 08:00 A.M. she and her husband (deceased)were fixing pegs and poles, beside their house forwhich Brahmadeo Singh and the appellant ArunSingh objected, abused them and threatenedto havebloodshed once Ajay Singh arrives. SubsequentlyAjay Singh, Arun Singh, Brahmadeo Singh, Ruby Deviand wife of Ajay Singh arrived to the place ofoccurrence where Ajay singh and Arun Singh werearmed with iron rods while rest of them were holdingbrickbats and started removing the pegs.

27. P.W. 14 further testified that when shetried to intervene, all the accused dragged hertowards their house, and when her husband resistedthem for their acts, Ajay Singh assaulted thedeceased on his temple with an iron rod and ArunSingh hit his ribs. On that, Ram Bilash Singh(deceased) fell down, and the other accused beatP.W. 14 with brickbats and the wife of Ajay Singhsnatched the wrist watch from the deceased.

28. The evidence of P.W. 14 further disclosethat several people gathered at the scene including P.W.5/Basuki Ram, P.W. 6/Upendra Singh, P.W. 8/RamAvatar Singh, P.W.9/Surendra Singh @ BablooSingh(not examined) and P.W. 13/Lalan Singh.Subsequently, she became unconscious and thePolice came around 04:00 P.M., observed the deadbody of the deceased and recorded her fardbeyan.Her signature on the fardbeyan is Exhibit-4

29. During the course of trial, for the firsttime, P.W. 14 has mentioned the names of allegedeye-witnesses i.e. P.Ws. 5, 6, 8, 9 and 13 which werenot found in the fardbeyan.

30. In cross-examination at Para No 19, it istestified by P.W. 14 that the village watchman wentto Police station, but she cannot say who informedthe watchman about the occurrence and that sheeither did not send any message to the Police Stationthrough any witness or went to the Police Station toinform about the incident.

31. In Para No. 21 of the cross-examination,it is testified by P.W. 14 that she waited for the policeofficial near Khatiyan, was unconscious and unableto identify the people gathered and that she re- gained conscious when the police officials arrivedand did not explain about the incident to thevillagers. She further testified that the accusedobjected for fixing the pegs in the morning andremoved the pegs at around 12:00 noon for whichshe objected. She also testified that she raised alarmfor which the people of the village gathered and inthe meantime, the accused persons assaulted herhusband and that she did not notice whether bloodoozed out or not.

32. Further, P.W. 14 stated that blood oozedout from the nostril of her husband and he fell downon earth. She also stated that the InvestigatingOfficer collected the blood-stained soil and remainedat the place of occurrence till 02:00 A.M.. After tendays, the Investigating officer again recorded herstatement along with statement of other witnesses.She also testified that she stated to the police aboutthe specific overt-act of Ajay Singh and Arun Singh.However, Exhibit-2 does not contain the specificdetails.

33. P.W. 15 is the doctor, who examined P.W.14. It is relevant to mention that the trial Court hasacquitted the appellants for the charge framed underSection 323 of IPC. The evidence of P.W. 15 disclosethat on 09.05.1999, he examined Pawan RekhaDevi/P.W. 14 and found the following injuries:-

(i) Lacerated wound 2 inches x ½ inch x ¼inch over posterior aspect of upper 3[rd] of rightforearm. Age of the injury within 24 hours.

(ii) Swelling with pain over occipital region.

34. The doctor opined that above injuries aresimple in nature and could have been caused byhard and blunt object.

35. His evidence further disclose that he examined the injured on the requisition of police on09.05.1999, and issued Injury Report on 10.05.1999.The Injury Report of Pawan Rekha Devi is marked asExhibit-5.

36. In cross-examination, it is testified byP.W. 15 that pain in body is not considered as aninjury and that he did not mention the color of theinjuries in the Injury Report. Further he stated that such injuries may also be caused due to a fall. Hedenied the suggestion that the Injury Report wasfabricated.

37. As per the evidence of P.W.14/informant,Brahmadeo Singh, Ruby Devi and Sunita Deviassaulted her on the elbow of her hand withbrickbats. However, the evidence of P.W. 14 disclosethat she sustained injuries on the different parts ofher body and there was a was cut injury below theelbow of the right hand. However, the documentaryevidence i.e. the Injury Report/ Exhibit-5 and the oralevidence of P.W. 15 contradicts, the nature andlocation of injury sustained by P.W. 14.

38. As per the evidence of P.W. 15, P.W. 14sustained a lacerated wound measuring 2 inches ×1/2 inches × 1/4 over the posterior aspect of upperthird of right forearm. But the oral evidence of P.W.14 disclose that she sustained a cut injury on theright elbow. If at all, it is a cut injury, there should bean incised wound over the right elbow. As per theevidence of P.W. 15 and Injury Report of P.W. 14,contradicts the evidence of P.W. 14. As stated supra, the trial Court did not find the appellants guilty forthe offence punishable under Section 323 of IPC andthe appellants were acquitted for the said offence. Ifat all, the trial Court disbelieved, the evidence of P.W.14 as it is contending the evidence of P.W. 14 and isinconsistent with the Injury Report of P.W. 14 inconnection with the same incident, the trial Courtought to have discarded the evidence of P.W. 14 in itsentirety. But, the trial Court partially relied theevidence of P.W. 14 and convicted the appellants forthe offence punishable under Section 304 Part-I ofIPC.

39. It is specific defence of the appellantbefore the trial Court that they did not commit themurder of the deceased and they were falselyimplicated in the case.

40. The trial Court record also reveals thatthe petitions were filed on behalf of the appellantunder Section 294 of Cr.P.C. for marking certaindocuments. However the said petitions were keptpending by the trial Court and without passing anyorders, the judgment was reordered. Those documents on record clearly reflect that there weredisputes between the deceased family and that ofthe appellants. The said documents were filed by thedefence to substantiate that there was enmitybetween the parties and they were falsely implicatedin this case.

41. On perusal of the judgment, it can beunderstood that the trial Court, while considering thesubmissions and arguments made by the defencecounsel wrongly shifted the burden of proof upon theappellants, to establish that they acted in exercise ofright to private defence. However, it is not the caseof the appellants that they committed this act underthe general exceptions of IPC i.e. right to privatedefence.

42. P.W. 16 is the Investigating Officer whorecorded the fardbeyan of P.W. 14. His evidencedisclose that he received rumours about the murderof the deceased, at about 03:30 P.M. on 08.05.1999and on the basis of information, he registered SanhaNo. 141 dated 08.05.1999 and left Sabalpur as perthe orders of the Station House Officer (SHO). He

recorded the fardbeyan of Pawan Rekha Devi wife ofthe deceased Ram Bilash Singh, obtained hersignature on the fardbeyan (Exhibit-2) andforwarded the same to SHO, Laxmipur Police Stationfor registering the FIR. His evidence disclose that heprepared the Inquest Report, in the presence of RamAvatar Singh/P.W. 8 and one Vishwanath Singh andthe carbon copy of the Inquest Report is Exhibit-6.He also obtained the signatures of P.W 8 andVishwanath Singh on the Inquest Report and laterforwarded the dead body for post-mortemexamination through a constable/Mudrika singh andthe watchman Brahmadeo Paswan. He alsoinspected the place of occurrence. As per theinformation given by P.W. 14 the place of occurrencewas located at a distance of 10 to 15 gaj west andadjacent to the house of the deceased. There was anold fencing made of wild bushes and two or threehole were dug to fix the pegs. He also found two tothree wooden poles lying at the place of occurrenceand the fencing was old and pegs and poles werefixed to strengthen it. He observed that the house of accused person were located towards the west,which is a vacant space in front of the house of theaccused persons towards north and east. Further, thevacant space towards east extends to the fencing ofthe deceased’s house. As per the evidence ofInvestigating Officer, the place of occurrence is avacant area adjacent to the house of the deceased.

43. P.W. 16 also testified that he noticed theInjury Report of the informant, Pawan Rekha Deviand referred her to hospital at Laxmipur fortreatment. The injury slip is Exhibit-7.

44. During the course of investigation, hereceived the Injury Report of Pawan Rekha Devi andthe post-mortem report of the deceased Ram BilashSingh. While investigating the case, he got retiredand handed over the case to the SHO, Laxmipur. Theformal FIR in the writing of SHO, Ram Vachan Singhis Exhibit- 8, marked through P.W. 16.

45. In cross-examination, it is admitted byP.W. 16 that he received the death information ofRam Bilash Singh @ Karoo Singh at the police stationbut the name of the said person was not mentioned in the Sanha and the said information was receivedby him at 03:30 P.M. After that he proceeded toSambalpur, but could not call the watchman ofSambalpur, because the post was kept vacant. Eventhe In-charge watchman was also not called for.

46. On the one hand, the evidence of P.W. 16disclose that the dead body was forwarded tohospital through one constable and watchman. Onthe other hand, It is admitted by P.W. 16 that thewatchman post was kept vacant and the In-chargewatchman was not called for. He also admitted thathe did not verify any documents to establish aboutthe ownership of the land at the place of occurrence.He further admitted that he did not prepare any mapof the place of occurrence. He also admitted that asper the statement of one Rajendra Singh, Ajay Singhwas first assaulted and it was the deceased who hadassaulted Ajay Singh, and as per the statement ofRajendra Singh, both Rajendra and Ram Bilash Singhhad carried weapon from house and the assaultoccurred from both the sides.

47. He also testified that he has notcollected any bloodstained clothes and he had notseen anything at the place of occurrence.

48. On scrutiny of the evidence of P.W. 14and 16, it can be understood that the police receivedthe information at 03:30 P.M.on 08.05.1999 throughthird parties and none of the prosecution witnessesapproached the police station and it was the policewho come to the village and received the informationthrough P.W. 14 for which a fardbeyan was recorded.

49. The alleged incident took place at 12noon, but there is no explanation from theprosecution, as to why the prosecution witnesses didnot prefer any report to the police up to 05:00 P.M..On one hand, P.W. 14 testified that she wasunconscious up to 05:00 P.M. on the other hand, shestated that she waited for the police to arrive at theplace of occurrence.

50. The conduct of any reasonable person incase of a cognizable offence, would be first prefer areport to the Police Station. If at all, P.W. 14 hadwitnessed the occurrence and saw the death of her husband, her failure to report the matter to police till5 P.M. is not at all explained by the prosecution.

51. Column No. 8 of the FIR deals with thecause for the delay in giving information by theinformant, but the formal FIR/Exhibit- 8 is silent as noreasons were assigned in the FIR for the delay inpreferring the information.

52. As per the evidence of P.Ws. 14 and 16, the dead body of the deceased was first seen by theInvestigating Officer on the Varandah of thedeceased’s house and the information from P.W. 14was also recorded there. There is no evidence ormaterial on record as to who has shifted the deadbody from the place of occurrence to the Verandah ofthe deceased house.

53. P.Ws. 2, 3, 7 and 18 were declaredhostile and, therefore, there is no necessity todiscuss.

54. The evidence of P.Ws. 4, 10, 11 and 12 isnowhere helpful for the prosecution to prove thecase against the appellants, as they all in one tonestated that they knew nothing about the occurrence.

55. P.W. 1 is the doctor who conducted thepost-mortem examination of the dead body of thedeceased/Ram Bilash Singh @ Karoo Singh. Hisevidence disclose that on 09.05.1999, the dead bodyof Ram Bilash Singh was brought to the hospital andhe commenced the post-mortem examination at10:30 A.M. and found the following external injuries:

(i) Two parallel bruises 8 inches x ½ inch x1½ inch, blackish in color, with depressed floorextending from right axilla to the right side of thechest up to upper part of right side of abdominal walland obliquely placed.

(ii) Lacerated wound 3½ inch x 3¼ inch xdeep to bond over the right temporal region of scalpwith hematoma in the floor of wound and bleedingfrom mouth and nostril.

(iii) . Bruise 2 inch x 2 inch over the back ofneck.

56. On dissection of the dead body of thedeceased, there was fracture of right temporal boneand adjoining part right parietal bone with lacerationof membrane of the brain and brain materials with

hematoma between the cranial bone and membraneof brain and hemorrhage in the anterior and middlecranial for ecchymosis underneath the skin or theside bruise, on right side of the chest with fracture offorth and fifth ribs, anteriorly and laceration ofparietal pleura, hemorrhage in pleura cavity, ruptureof right low of liver anta-superiorly with hemorrhageinto peri cavity.

57. It is opined by P.W. 1 that all the aboveinjuries are ante-mortem and caused by a hard andblunt object such as iron rod. Time between theinjury and death was instantaneous. It is also opinedby the P.W. 1 that the death of the deceased wasinstantaneous, due to injury to the brain and thepostmortem examination was conducted between 8to 24 hours after the death. The Postmortem Reportof the deceased/Ram Bilash Singh is Exhibit-1.

58. In the cross-examination, it is testified byP.W. 1 that the dead body was identified by oneconstable No. 20 Mukindra Singh and ChaukidarBrahamdeo Paswan. Injuries 1, 2 and 3 are notpossible due to fall from a motorcycle accident.

However, fractures of the temporal bone may becaused by a motor cycle accident and bruise mayalso result from the same. Parallel bruise may occurif a heavy material falls on the body. As per theevidence of P.W. 1, the death of the deceased is notnatural, however, his evidence do not clarify whetherthe death was homicidal or the accidental.

59. On the one hand, the evidence of P.W. 1disclose that the injuries sustained by the deceasedmay be caused due to hard and blunt objects and onthe other hand, he admits in cross-examination thatthose injuries may also be possible, if a personsustains injuries in a motor cycle accident. It is forthe prosecution to prove, whether the death washomicidal or not ?

60. In order to prove that the death of thedeceased was homicidal, the prosecution has reliedon the evidences of the alleged eyewitness i.e. P.Ws.5, 6, 9, 13 and 14. This Court has already discussedthe evidence of P.W. 14 who is the informant/injuredwitness as well as the wife of the deceased.

61. The evidence of P.W. 13 who is the minorson of the deceased disclose that the incident tookplace on 08.05.1999 at 08:00 A.M. His evidencefurther disclose that he witnessed the entire incidenti.e. the first occurrence at 08:00 A.M. and thesubsequent occurrence at 12:00 noon. His evidenceis also in the same manner as that of P.W. 14.

62. It is specifically stated by P.W. 13 thatthe appellants and the other accused dragged P.W.14 towards their house, for which the deceasedobjected and he was assaulted by Ajay Singh andArun Singh with iron rods resulting in injuries on theright temple and left ribs. Later, Brahmadeo Singh,and Ruby Devi assaulted P.W. 14 with brickbats onher elbow and wife of Ajay Singh snatched the wristwatch from the body of his father. The presence ofP.W. 13 at the place of incident was not mentioned inthe fardbeyan i.e. Exhibit-2 and for the first time,P.W. 14 speaks about the presence of her son in herevidence.

63. On perusal of the deposition of P.W. 13, itcould be understood that the age of the witness wasmentioned as 13 years.

64. Section 118 of Indian Evidence Act,envisages Who may testify- which reads as follows:-All person shall be competent to testify unless theCourt considers that they are prevented from theunderstanding the questions put to them, or fromgiving rational answers to those questions, by tenderyears, extreme old age, disease, whether of body ormind, or any other cause of same kind.

65. Evidence of a child witness must findadequate corroboration before it can be relied upon,it is more a “rule of prudence than law” A childwitness can be a competent witness. The testimonyof a child witness can be taken into account, but onlyafter careful scrutiny of the evidence. Ascorroboration is a rule of prudence, a minor who iscapable of give rational answers can be presented inthe Court as a witness and if he/she does not pass“voir dire test”, (competency test) he/she cannot betreated as a reliable witness. If child of tender age has the intellectual capacity to understand thequestions and give rational answers thereto, he/shecan be allowed to testify and can be a competentwitness.

66. Generally the Courts cannot discard theevidence said by a child witness on the ground that itwas made by a child. However, the Courts mustevaluate the child evidence very carefully, as a childcan be swayed easily by others guidance. A childwitness is competent to depose unless the Courtconsiders that he is prevented from understandingthe questions put to him, or from giving rationalanswers by reasons of his tender age. Admittedly,the witness is aged 13 years as on the date of hisdeposition i.e. 02.05.2003, and the incident tookplace on 08.05.1999, by that time the witness wasaged about nine years.

67. As regards to the administration of oath of a child witness, Section 4 of Oaths Act, 1969 isrelevant which reads as follows:-

4. Oaths or affirmations to be made by

witnesses, interpreter and jurors.—(1) Oaths or affirmations shall be made by the following persons,namely:—

(a) all witnesses, that is to say, all personswho may lawfully be examined, or give, or berequired to give, evidence by or before any court orperson having by law or consent of parties authorityto examine such persons or to receive evidence; (b) interpreters of questions put to, andevidence given by, witnesses; and

(c) jurors:

Provided that where the witness is a childunder twelve years of age, and the court or personhaving authority to examine such witness is ofopinion that, though the witness understands theduty of speaking the truth, he does not understandthe nature of an oath or affirmation, the foregoingprovisions of this section and the provisions ofsection 5 shall not apply to such witness; but in anysuch case the absence of an oath or affirmation shallnot render inadmissible any evidence given by suchwitness nor affect the obligation of the witness tostate the truth.

68. However, in view of the requirementunder Section 118 of the Indian Evidence Act, thetrial Court Judge was under a duty to record hisopinion that the child is able to understand thequestions put to him and that he is able to giverational answers to the questions put to him. Thetrial Judge must record his opinion that the childwitness understands the duty of speaking the truthand state why he is of the opinion that the childwitness understands the duty of speaking the truth.It is a well settled principle that corroboration oftestimony of a child witness is not a rule but a matterof caution and prudence. A child witness of tenderage is easily susceptible to tutoring, however, thatalone is not a ground to reject the evidence of a childwitness. The Court must make careful scrutiny of theevidence of the child witness, the Court must applyits minds to the question, of whether there is apossibility of the child witness being tutored,therefore, scrutiny of the evidence of child witness isrequired to be made with care and caution.

69. Before recording the evidence of aminor, it is the duty of the Judicial Officer to askpreliminary questions with a view to ascertainwhether the minor can understand the questions putto him and is in a position to give rational answers.Therefore, the role of the Judge who records theevidence is crucial. It is advisable to record thepreliminary questions and answers so that theappellate Court can examine the correctness of theopinion of the trial Court.

70. The same proposition was also laid down by the Hon'ble Apex Court in the case of PradeepVs. State of Haryana reported in 2023 SCCOnLine SC 777. In the present case, the preliminaryquestions were not put to the witness. Admittedly,there is no age proof placed before the Court as onthe date of the examination of this witness i.e. P.W.13. It is testified by P.W. 13 that he was aged about13 years as on the date of his examination but thetrial Court did not conduct any proper examination todetermine the competency before recording hisevidence.

71. In my view, the Learned Sessions Judgehas failed to perform. Further, the fardbeyan alsodoes not contain the name of P.W. 13 as an eye-witness to the incident. Therefore, significantreliance cannot be placed upon the evidence of thiswitness.

72. The remaining witnesses in these caseare P.Ws. 5, 6, 8, 9 and 17. P.Ws. 5, 6, 8 and 9 arealso alleged to be the eye-witness to the incident aspreviously stated. Their names were mentioned inthe fardbeyan as an eye-witness by P.W. 14.

73. The evidence of P.W. 5/Basuki Ramdisclose that on 08.05.1999 at about 06:00 A.M., hereached the house of the deceased on hearing analtercation between the appellants and the deceasedregarding the fixing of pegs on the land of thedeceased. He specifically testified that BrahmdeoSingh, Arun Singh and their wives created thedispute and again at about 12:00 to 12:15 in thenoon again, there was an altercation between theparties and he witnessed both the appellantsBrahamdeo Singh and wife of one of appellants

assaulting the deceased with iron rod on his ribs andtemple resulting the deceased succumbed to injurieson the spot. He further witnessed the brickbats in thehands of Brahamdeo Singh, wives of Arun Singh andAjay Singh.

74. In cross-examination, it is admitted byP.W. 5 that he is the resident of Pemadih village andowns land at Sabalpur. He admitted that the firstincident occurred at 08:00 A.M.. However, in hischief-examination, he specifically deposed that thefirst occurrence regarding the fixing of the pegs andthe altercation took place at 06:00 A.M.. He alsoadmitted that he has not seen any pegs affixed,although, he saw the holes dug on the west side ofthe land. He also admitted that he has not seen anydocuments relating to the ownership of the land, asto whether it belong to the appellants or thedeceased. By the time, he reached the place ofoccurrence, Ram Bilash Singh was lying on theground and he did not saw any blood oozing from thebody of the deceased. He also testified thatdeceased was picked up and brought to his house and was laid on a charpoy, and that he noticed aninjury on the hand of Pawan Rekha Devi.

75. In chief-examination, this witness hastestified that he witnessed the incident, however, incross-examination, he admitted that by the time, hereached the place of occurrence, he saw the body ofthe deceased lying on the ground and later, it wasshifted to the house of the deceased. It is alsoadmitted by P.W. 5 that he is the non-resident of thisvillage and resides at Pemadih village. Therefore, thepresence of this witness at the place of occurrenceon the date of occurrence was not established by theprosecution. Therefore, this Court is of theconsiderable view, that he is not eye-witness to theincident and his evidence cannot be relied upon.

76. P.W. 6/Upendra Singh is also alleged tobe an eye-witness of the incident. His evidence alsodisclose that he witnessed both the occurrence at08:00 A.M. and 12:00 noon on 08.05.1999. Hisevidence is also in the same line as that of P.W. 5.

77. It is specifically testified by P.W. 6 thatthere was a boundary dispute and the land was an uncultivated land, which is situated between thehouse of the deceased and the appellants. He alsoadmitted that P.W. 13 was aged about 07 years atthe time of incident, and that village watchmancame to the scene of occurrence, found the deadbody of the deceased lying at the place ofoccurrence and he went to the police station toinform the authorities. Later, the Sub-Inspector ofPolice arrived and saw the dead body of thedeceased at the place of occurrence.

78. The evidence of P.Ws. 4, 5 and 6 arecontradicting with each other, as to whether thedead body of the deceased was lying at the place ofoccurrence or at the door step of the deceased. P.W.5 specifically testified that they have shifted thedeceased/Ram Bilash Singh from the place ofoccurrence to the door step of the deceased and laidhim on a charpoy(cot). However, the evidence of P.W.6 contradicts in that aspect and it is his evidencethat the body was at the place of occurrence till theSub-Inspector arrived to the place of occurrence. Theevidence of P.W. 15/Sub-Inspector also disclose that the dead body was lying in the Verandah of thehouse of the deceased. Therefore, the version givenby P.W. 6 cannot be believed and his presence at theplace of occurrence is also doubtful.

79. P.W. 8/Ram Avatar Singh is another eye-witness to the second incident which occurred at12:00 noon on 08.05.1999. His evidence disclosethat on hearing a loud noise he rushed towards thehouse of Ram Bilash Singh and witnessed a quarrelbetween the deceased and Brahmadeo Singhregarding twenty years old fencing which is underrepairing. His evidence is also in the same line asthat of P.Ws. 5 and 6. Further he testified that thewife of Ajay Singh snatched the watch of thedeceased after his death. The signatures of P.W. 8and Vishwanath Singh on the Inquest Report wereExhibit-3 and Exhibit-3/1 respectively. His evidencefurther disclose that Sub-Inspector collectedbloodstain soil in a plastic bag and the statement ofthe watchman was not recorded. The evidence ofthis witness cannot be relied upon as he hasintroduced a new story involving the role to the village watchman directing him, to further go to thePolice Station for giving a fardbeyan. However, theevidence of P.Ws. 14 and 15 do not disclose aboutthe watchman. Further, the evidence of otherwitnesses disclose that watchman post was keptvacant and even In-charge watchman was not calledfor on the date of the incident. This witness deniedthe suggestions that a homicide case was registeredagainst him at the instance of the accused.

80. P.W.9/Surendra Kumar Singh @ BablooSingh is also alleged to be witness of the secondincident, which occurred on 08.05.1999 at about12:00 noon. His evidence is also in the same line asthat of P.Ws. 5, 6 and 8. In the cross-examination, itis admitted by him that he was attending coachingclass at classical tutorial, Patna which works in twoshifts. At Para No. 10 of the cross-examination, hehas admitted that some person had gone to policestation to inform about the occurrence, and alsoadmitted that he had not gone to the police station.It is not the case of the prosecution that prior to05:00 P.M. on 08.05.1999, the people of the village had gone to the police station to report about theincident. He also testified that he saw bloodstainedsoil on the western part of the land but did notwitness the Investigating Officer collecting thebloodstained soil. The evidence of this witness is alsocontradicting with the evidence of the InvestigatingOfficer and P.W. 14 on many aspects. Therefore,much reliance cannot be given to the evidence ofthis witness.

81. It is specific contention of the LearnedAdditional Public Prosecutor, Mrs. Anita Kumari Singhthat the fardbeyan contains the signatures of P.Ws.5, 6 and 8, one Chandrika Ram, and therefore, thepresence of this witness cannot be ruled out.

82. However, the contention of the LearnedAdditional Public Prosecutor cannot be taken intoconsideration as the alleged second occurrence tookplace on 12:00 in the noon, however, fardbeyan wasrecorded at the door of the deceased at 05:00 P.M.by the Investigating Officer/P.W. 15 and the inquestproceedings were commenced prior to forwardingthe fardbeyan to police station, therefore, the presence of this witness at 12:00 noon cannot beestablished by the prosecution in any manner.

83. P.W.17/Devendra Narayan Singh is anAdvocate clerk. His evidence disclose that one VijayKishor Singh an advocate prepared a protest-cum-complaint petition at the instance of P.W.14 and thesame was typed by a private typist Narendra Tantiand that Pawan Rekha Devi/PW. 14 has put hersignature and Vijay Kishor Singh also signed on07.06.1999, The protest petition was marked asExhibit-9 and the signatures of P.W. 14 and VijayKishor Singh are marked as Exhibit-9/1 and 9/2respectively marked on 09.09.2000. P.W. 14 has nottestified about Exhibit- 9 in her evidence.

84. Admittedly, P.W. 17 is not the author ofExhibit-9 documents.

85. The Learned Amicus Curiae relied on thejudgment passed by this Bench in the case of NoorHassan Ansari & Ors. v. The State of Biharpassed in Cr. Appeal (SJ) No. 68 of 2004, thatdeals with the criteria for marking a document whichreads as follows:-

15. It is pertinent to mentionthat followings are criteria for markinga document:- In order to have a documentsmarked by the Court as an Exhibit, aparty must satisfy the Court that thereis sufficient material in order for theCourt to arrive at a prima facie viewthat:- “It is evident that in order tohave the documents marked by theCourt as Exhibits, a party must satisfythe Court that there is sufficientmaterial in order for the Court toarrive at a prima facie view that :

(a) The "contents" of thedocument are proved (i.e. thedocument exists).

(b) The signature orhandwriting on the document, if any,are proved (i.e. the document isgenuine).

(c) In some cases, the witnesswho seeks to tender the document inevidence has personal knowledge ofthe document (i.e. that the witness isin a position to prove the accuracy ortruth of the contents of thedocument); (d) The document is notinherently or ab initio inadmissible onsome other legal ground (e.g.irrelevance,privilege,non-registration) and (e) The document has beenappropriately stamped, if so requiredby law.

16. (i). In order to provecontents of a document, the witnessthrough whom the document is soughtto be tendered must produce thedocument in court. The Evidence Actprovides, in essence, that the"contents" of documents mustordinarily be proved by "primary"evidence.

(ii) . As the second step in

getting a document marked, thewitness who introduces the documentmust identify the signature orhandwriting on the document, if thereis any. 19 The mere production of adocument is not sufficient for thedocument to be marked as an exhibit.

(iii) . Thirdly, in order to lay afoundation for marking a document, ifthedocumentcontainsanystatement(s) of fact, and the party

propounding the document relies onthe truth or accuracy of thosestatements, then the witness. whotendersthedocumentmustdemonstrate personal knowledge andthe familiarity of the document.

(iv) . Fourthly, in some cases,irrespective of a party's ability tosatisfy the criteria set out above, alaw might prohibit some documentsfrom being considered admissible inevidence. Such documents cannot bemarked in evidence. Once a documentis marked, it becomes the part of therecord but has to be considered by theCourt about its admissibility andrelevancy of the such document.Marking of document alone will notgive any right to read the contents ofthe documents or about theadmissibility of the documents.”

17. Furthermore, Rule 58 ofthe Criminal Rules Of Practice andCircular Orders, 1990 envisages aboutmarking of exhibits which reads asfollows:- “58 Marking of exhibits:-(1) Exhibits admitted in evidenceshall be marked as follows:-

(i) if filed by the prosecutionwith the capital letter ‘P’ followedby a numeral, P1, P2,P3 and thelike;

(ii) if filed by defence withthe capital letter ‘D’ followed by anumeral, D1, D2, D3 and the like;

(iii) in case of Court exhibitswith the capital letter ‘C’ followedby a numeral C1, C2, C3 and thelike;

(2) All the exhibits filed by theseveral accused shall be markedconsecutively.

All material objects shall bemarked in Arabic numbers incontinuous series as M.O. 1, M.O.2and M.O.3 and the like, whetherexhibited by the prosecution orthe defence or the Court.”

18. This Court is unable tounderstand as to why the trial Courthas not followed the procedure, whilemarking the Exhibits as per Rule 58 ofCriminal Rules of Practice. Admittedly,the documents was said to be markedin ‘X’ Series through P.W.-4.

19. At this juncture, it isrelevant to rely on the judgments of Hon’ble Division Bench of this Court inthe case of Sukhi Yadav v. TheState of Bihar reported in 2014 SCCOnLine Pat 5721 wherein theirLordships have held as follows:- “9. We fail to appreciate asto which law permits such a thing andhow a Judge of standing of AdditionalSessions Judge could do such a thing.First thing we must notice that P.W.9is an Assistant to an Advocate Clerk,who has nothing to do with the case,yet the Court permits him to step inas a prosecution witness. Moreoverwe have coined such witness as“Sankat Mochan witness”. What morescandalized us is the trial court, whichpermits a person, who was nobody, topick up the entire case diary fromparagraphs 1 to 121 and prove it andmake it a part of evidence. The courtthen proceeds further to mark it asExt. 3 and then the court sits down toread entire case-diary in order toappreciate evidence. Nothing can bemore scandalous. No such step ispermissible in law. The trial courtforgot the true import of section172(2) of the Code of Criminal

Procedure (for short ‘Cr.P.C.’), whichclearly states that any criminal Courtmay use such diaries, not as evidencein the case, but to aid it in suchenquiry or trial. What the trial courthas done is using it as evidence,making it as evidence andappreciating it as evidence, which iswholly impermissible in law. The diarycan never be proved in a Court, for itcannot be used as evidence. No partof diary can be proved because if anyone is proving it for the purposes ofmaking it an evidence, such act isprohibited by law. The lawcontemplates a reference to the diaryonly for the purposes of refreshingmemoryorcontradictingthestatements of witnesses in the Courtwith the statements made during thecourse of investigation. Only when itis used for refreshing memory, theprocedure as envisaged under section145 of the Evidence Act is to applybut that does not mean that diary canbecome evidence. Law prohibits suchthing. We have found in cases aftercases that in the State of Bihar, theSessions Courts do not know or understand this distinction in law andin cases after cases the statements ofwitnesses recorded under section 161of the Cr.P.C. are proved as evidencesor other materials in the case-diaryare proved as evidence and markedas exhibits. This is a practice thatshould end, the sooner the better. Theother thing is that as to who ispermitted to prove a document. Itappears that in this State every Tom,Dick and Harry, the expression wehave formed now “Sankat MochanWitness”, could come and prove anyofficial document. In this case, anAssistant to Clerk of an Advocate, whohas nothing to do in the case, hasbeen permitted by the trial court toprove the entire case-diary and markit as exhibit. This practice isdeprecated and it must come to anend. A person, who is author of adocument or in absence of author,which absence has to be explained, aperson familiar with the handwritingof the author can only prove thedocument. The procedure adopted bythe trial court is unknown to law. No sooner this practice ends than betterit would be.”

20. The above citationsquarely applies to the facts of thepresent case. Their Lordships haveheld that a document may be provedeither by a person who is author ofthe document, or in absence of theauthor, (whose absence has to beexplained), a person familiar with thehand-writing of author can prove thedocuments. Their Lordships havefurther held that the proceduresadopted by the trial Court areunknown to law, and such practiceshave to be ended.

86. Admittedly, Exhibit-9 got markedthrough P.W. 17 who has no knowledge about theincident. On appreciation of the entire oral anddocumentary evidence on record, it can beconstrued that prosecution has miserably failed toestablish or prove the guilt of the appellants for theoffence punishable under Section 304 Part-I of IPC.

87. On perusal of the trial Court judgment, itis evident that trial Court was wrongly driven by the plea of right to private defence relied by thecounsels for the appellants. However, the recordreflects that the appellants never advanced any suchplea nor did they claimed to have committed theoffence in defence either of persons property orright.

88. The judgment of the trial Court onlydisclose that the plea of private defence was takenby the defence counsel in the absence of anysupporting evidence on record. The medicalevidence in the case also contradicts with the oralevidence. Further, the case of the prosecution is thatthree of the accused were holding brickbats and theyassaulted P.W. 14. However, the trial Courtdisbelieved the evidence of P.W. 14 in that aspectand has acquitted the appellants for the offencepunishable under Section 323 of IPC.

89. It is also pertinent to mention that thenames of Brahmdeo Singh, Ruby Devi, Sunita Deviwere deleted at the time of filing the charge-sheet.At the time of such deletion, the duty is casted uponthe trial Court to issue notice to the informant for filing their objections or a protest petition. Theprotest petition in this case is Exhibit-9 is alleged tohave been filed by P.W. 14, but it pertains to theinadequacy of investigation and not specifically tothe deletion of the named of Brahmdeo Singh, RubyDevi and Sunita Devi. Section 319 of Cr.P.C., givesample power to the Court to proceed against theother persons appearing to be guilty of the offence.In present case P.Ws. 5, 6, 8, 9, 13 and 14 in onetone stated about the roles played by each of theaccused including the role of Brahmadeo Singh, RubyDevi and Sunita Devi. However, the trial Court failedto exercise its power under Section 319 Cr.P.C. toproceed against them.

90. At this juncture, it is necessary to reiterate the provisions of Section 319 of Cr.P.C.which reads as follows:- “319 Power to proceed against otherpersons appearing to be guilty of offence,-

(1) Where, in the course of any inquiryinto, or trial of, an offence. it appears from theevidence that any person not being the accused has committed any offence for which such person couldbe tried together with the accused, the Court mayproceed against such person for the offence whichhe appears to have committed.

(2) Where such person is not attendingthe Court, he may be arrested or summoned, as thecircumstances of the case may require, for thepurpose aforesaid.

(3) Any person attending the Courtalthough not under arrest or upon a summons, maybe detained by such Court for the purpose of theinquiry into, or trial of, the offence which he appearsto have committed.

(4) Where the Court proceeds against any person under sub-section (1) then-”

(a) the proceedings in respect of such

person shall be commenced afresh, and thewitnesses re-heard; (b) subject to the provisions of clause (a),the case may proceed as if such person had been anaccused person when the Court took cognizance of the offence upon which the inquiry or trial wascommenced.

91. As per the above section, the Court whileexercising its powers, at any stage, during the courseof trial, can summon any person as accused to facethe trial, if it appears from the evidence that suchperson has committed any offence for which suchperson could be tried together with the appellants.

92. At this juncture, the Learned AmicusCuriae relied on the judgment of Boya Kajje PeddaAmbaraju and others versus Andhra Pradeshat Amaravati reported in 2020 SCC OnLine AP5077 whereinhis Lordships has held at Para-26which reads as follows:-

26. Therefore, since the Magistrate of thecommittal Court, after the charge-sheet isfiled in the said Court, has to only committhe case to the Court of Sessions for trialunder Section 209 of Cr.P.C. as per theratio laid down in the above judgment ofthe Supreme Court, the said Proceedingsrelating to committal of the case underSection 209 Cr.P.C. cannot be Construedas an inquiry for the purpose of Section319 Cr.P.C., Therefore, even if any order

accepting the deletion of names of theother accused mentioned in the FIR in thecharge-sheet albeit on the alleged memosaid to have been filed by the de factocomplainant, it does not preclude the trialCourt in any manner to consider whetherthe persons who are named in theevidence given before it during theCourse of trial also as assailants to beadded as accused along with the otheraccused to face the trial or not. The saidstage of considering whether to add anyother person as accused comes into playonly during the course of enquiry or thetrial of the case. Since the proceedings ofcommittal is not considered to be anenquiry for the purpose of Section 319 ofCr. P.C. in view of the ratio laid down inthe above judgment, the said memo orthe order if any passed on the said memoby the committal Court will not come inthe way of exercising the power underSection 319 of Cr.P.C. subsequently duringthe course of the trial by the trial Court onthe basis of the evidence adduced in thesaid case from which it appears that someother person or persons also committedthe offence. Considering the abovejudgment of the Apex Court in Kishore Prasad v. State of Bihar, the ConstitutionBench of the Apex Court in HardeepSingh's case (1 supra) also held that whileconsidering the language employed inSection 319 of Cr. P.C. "in the course ofany enquiry into, or trial of, an offence”and while considering the stage at whichthe power can be exercised under Section319 of Cr.P.C. in the light of the abovephrase used in the Section, theConstitution Bench of the Apex Court heldthat the power under Section 319 ofCr.P.C. can be exercised at any time aftercommencement of enquiry into anoffence by the Court and beforeconclusion of trial, except during stage ofSections 207 to 209 of Cr.P.C. which is nota judicial step in the true sense.

93. It is also necessary to discuss about thecitations of the Hon’ble Apex Court relied upon bythe Amicus Curiae in the case of Arshad HussainVersus. State of Rajasthan reported in (2013) 14SCC, 104 wherein their Lordships have held at ParaNo. 11, 12, 14, 15, 16, 17, 18 and 21 which reads asfollows:-

11. If we carefully scrutinize the contentsof the FIR given by Nizam (PW 4), it isclear that the occurrence took place at10.30 p.m. on 18-12-2000 when Iqbal(since deceased), Nizam (PW 4), Jamil (PW6) and Moinuddin (PW 5) were returning toKhanji Peer on two scooters. When all thefour reached near the house of Ashfaq,Shahjad (A-3) and his brother Muzaffar (A-2) came towards their scooters andstopped them. On seeing this, Iqbal gotdown and asked about the matter, by thenShahjad and Mujaffar both shouted"Arshad fire". On hearing the same,Arshad (A-1), the appellant herein, whowas standing in the verandah of his housewith a gun opened fire upon them. It isfurther stated that the appellant, who washaving gun in his hand, fired three shotsand in order to escape, Nizam (PW 4) satdown and the bullet hit in the chest andthe shoulder of Iqbal as a result of whichhe fell down immediately. Afterwards, PWs5 and 6 ran away from the scene. It is alsostated that at that time, the streetlights aswell as the light of the verandah of thehouse of Ashfaq were on. It is also seenthat there was old enmity between Ashfaqand Iqbal. It is further clear that on seeing the deceased and the prosecution partyand also on the shoutings of A-3 and A-4,the appellant herein (A-1), who wasstanding in the verandah, fired three shotswhich hit the deceased due to which hesustained fatal injuries.

12. It is not in dispute that the High Court,after analyzing the evidence ofprosecution witnesses, particularly PWs 4,5, 6, 7 and 19 and the defence pleaded byA-2 and A-3, accepted the plea of alibi andcategorically concluded that both of themwere not present at the scene ofoccurrence. We have already stated thatthe State has not challenged the saidorder_of acquittal by filing appeal beforethis Court and it has become final. It isclear that with the acquittal of saidpersons viz. A-2 and A-3, the genesis ofthe prosecution case is completelyfalsified. Let us analyse this aspect indetail hereunder.

14. We have already noted the contentsof the FIR and the conclusion of the HighCourt ordering the acquittal of A-2 and A-3. The first witness relied on by theprosecution is Nizam (PW 4), thecomplainant. A perusal of the evidence ofPW 4 shows that the same is in conformity with the contents of the FIR. In otherwords, he reiterated what he has stated inthe FIR. The important statement made byhim as stated in the FIR is as under:

"Iqbal Bhai asked the accused as

to what is the matter, by then Arshadfired. Arshad, who was already standingwith gun inside the boundary wall of hishouse shot three fires on Iqbal. One shothit on the right shoulder and right armpit."

It is clear from the above that only onthe direction of Shahjad and Mujaffar,Arshad (the appellant herein) fired atIqbal.

15. The other witnesses examined on theside of the prosecution were PWs 5, 6 and7. All of them made similar statements asthat of PW 4. In other words, all the threewitnesses once again reiterated similarassertion made in the FIR including thepresence of Shahjad and Mujaffar,stopping of scooters and shouting Arshadto fire on Iqbal.

16. The High Court has found thatMujaffar and Shahjad were not present atthe place of incident. The basis for suchconclusion was that at the relevant timeMujaffar (A-2) was admitted in a hospitalat Bombay and Shahjad, his brother, was

attending him at the said place. In theabsence of challenge as to the same bythe State, it is clear that both the co-accused were not present at the place ofincident and, therefore, three importantaspects of the prosecution case have notbeen established, namely, (a) the party ofthe deceased was stopped by Shahjad andMuzaffar; (b) the deceased and hisassociates were stopped by Shahjad andMuzaffar near the gate of their house; and(c) Shahjad and Muzaffar had askedArshad to open fire upon the deceased.17. A perusal of the contents of the FIR,the statements of the above mentionedprosecution witnesses as well as thereasoning of the High Court clearly showthat the incident had not taken place asalleged by the prosecution. We aresatisfied that the prosecution hadsuppressed genesis and the manner inwhich the incident took place.

18. In other words, in such circumstances,in the absence of specific assertion byPWs 4, 5, 6 and 7, the role of the appellantand also in the light of the conclusion bythe High Court accepting the alibi pleadedby A-2 and A-3, the entire prosecutioncase could not be believed.

21. It is a well-settled principle of law thatwhen the genesis and the manner of theincident is doubtful, the accused cannotbe convicted for the offence punishableunder Section 302 IPC. Inasmuch as theprosecution failed to establish thecircumstances in which the appellant wasalleged to have fired at the deceased, theentire story has to be rejected.

94. As per the above citations, the genesisfor the occurrence of the incident has to beestablished by the prosecution. In the present case,the prosecution has alleged that around 12:00 noon,the appellants along with other three accused i.e.Brahmadeo Singh, Ruby Devi and Sunita Devi havedragged P.W. 14 from the place of occurrencetowards their house, while assaulting her. However,none of the prosecution witnesses i.e. PW. 5, 6, 8 and9 have testified about this fact, therefore, this Courtconstrues that the prosecution failed to establish thegenesis of the occurrence in any manner.

95. In the case of Mahesh Trivedi vs.State of Bihar reported in 2024 SCC OnLine Pat4698, the Division Bench of this Court held at Para Nos. 42 to 46 have dealt with the procedure to befollowed by Courts relating to child witness and delayin lodging the FIR:-

42. From perusal of the prosecution case,after hearing both the sides as alsoperusing the evidences of the witnesses, itis found that the date of occurrence is05.07.2013, fardbeyan of the Informantwas recorded 06.07.2013 at 8.30 AM inthe morning but, the F.I.R. was institutedat 11.00 AM and there is no plausibleexplanation for delay in instituting theF.I.R. which creates a grave doubt in theprosecution. case. It is well known thatwhen an FIR is delayed, in absence ofproper explanation, the courts must be onguard and test the evidence meticulouslyto rule out possibility of embellishments inthe prosecution story, inasmuch as, delaygives opportunity for deliberation andguess work.

43. From perusal of the records, It alsoappears that the the P.W.9/1.O. hasdeposed that a Sanha was lodged on06.07.2013 at about 1.00 O'clock in thenight in the Station Dairy bearing SanhaNo. 84/13 but, the same was suppressedby the prosecution and was not made base of the F.I.R. and is also not on record.Whether the name of the appellant wasthere is also not known. What theallegation made therein is also not knowntoanyone.Thus,underthiscircumstances. the Sanha was thevaluable piece of evidence and non-production of the same before the courthas made the prosecution story doubtfuland adverse inference can be drawnagainst the prosecution.

44. The Criminal Law (Amendment Act)2013, among its various sweepingchanges, inserted a new provision SA (a)into the Section 164 of the CrPC, making itmandatory that when an offence of rape iscommitted and the same is brought to theknowledge of the police officer he isbound to take the victim to the nearestJudicial Magistrate for recording of herstatement. Thus, the 1.0. has not followedthe mandatory provision contained underSection 164 (5A) of the Cr. P.C. whichcreates a grave lacuna in the prosecutioncase. For the convenience, Section164(5A)(a) of the Cr. P.C. is quoted hereinbelow:

"164 (5A) (a) In cases punishableunder section 354, section 354A, section 3548, section 354C, section 354D, sub-section (1) or sub-section (2) of section376, [section 376A, section 376AB, section3768, section 376C, section 376D, section376DA, section 376DB,] section 376E orsection 509 of the Penal Code, 1860 (45 of1860), the Judicial Magistrate shall recordthe statement of the person against whomsuch offence has been committed in themanner prescribed in sub-section (5), assoon as the commission of the offence isbrought to the notice of the police:

Provided that if the person making thestatement is temporarily or permanentlymentally or physically disabled, theMagistrate shall take the assistance of aninterpreter or a special educator inrecording the statement:

Provided further that if the personmaking the statement is temporarily orpermanently mentally or physicallydisabled, the statement made by theperson, with the assistance of aninterpreter or a special educator, shall bevideo graphed."

45. This Court also finds that although thestatement of victim girl under Section 161was recorded by the 1.0. but, she was notproducedbeforethecompetent

Magistrate to get her statement recordedunder Section 164 of the Cr. P.C. and shewas directly examined as witness beforethe Trial Court which also creates a greatdoubt in the prosecution case. This Courtalso finds that the victim girl, who is a fiveyears old girl at the time of occurrence,has not gone through the Voir dire test (apreliminary examination to determine thecompetency of witness or juror) beforetaking evidence. Under this, the court mayask questions to the child witness whichare not connected to the case to test thecompetency, such as questions aboutname, name of parents, residence,education etc. It is very desirable that atrial judge, who has a child witness beforehim, should preserve on record, apartfrom the child witnesses evidence in thecase, some other questions and answerswhich could help the higher courts orcourts of appeal to come to conclusionwhether the trial judge's decision ofcompetency was right or wrong. If thetestimony of the child witness is credibleand truthful and supported by otherevidence conviction can be based on it.Corroboration of evidence with testimonyof a child is also desirable in order to make conviction. Children are often themost dangerous witnesses, as they can beeasily tutored or taught and hence beplayed like puppets in the hands of elders.Hence the testimony should always berelied upon only after the judge hasrecorded that the child is fit enough totestify and there is corroborative evidencefor the same also, but not in all cases isthe corroborative evidence necessary.

46. At this stage, we would like to referthe decision passed by this Cour Court inthe case of Munna Sah (supra) whereinthis Court has observed in paragraph nos.24, 25, 26 and 27 which reads as follows:- "24. 18.1. In the case of Pradeep(supra), the Hon'ble Supreme Court hasobserved in Para-7 to 10 as under:- "7. We have carefully consideredthe submissions. The fate of the casedepends on the testimony of the minorwitness Ajay (PW -1). Under Section 118 ofthe Evidence Act, 1872(for short, "theEvidence Act"), a child witness iscompetent to depose unless the Courtconsiders that he is prevented fromunderstanding the questions put to him, orfrom giving rational answers by the reasonof his tender age. As regards the administration of oath to a child witness,Section 4 of the Oaths Act, 1969(for short"Oaths Act") is relevant. Section 4 readsthus:

"4. Oaths or affirmationsto bemade by witnesses, interpreters andjurors.-(1) Oaths or affirmations shall bemade by the following persons, namely:- (a) all witnesses, that is to say, allpersons who may lawfully be examined, orgive, or be required to give, evidence byor before any court or person having bylaw or consent of parties authority toexamine such persons or to receiveevidence; (b) interpreters of questions putto, and evidence given by. witnesses; and

(c) jurors:

Provided that where the witness isa child under twelve years of age, and thecourt or person having authority toexamine such witness is of opinion that,though the witness understands the dutyof speaking the truth, he does notunderstand the nature of an oath oraffirmation, the foregoing provisions ofthis section and the provisions of Section5 shall not apply to such witness; but inany such case the absence of an oath or affirmation shall not render Inadmissibleany evidence given by such witness noraffect the obligation of the witness tostate the truth.

(2) ………………..”

8. Under the proviso to sub-Section (1) of Section 4, it is laid downthat in case of a child witness under 12years of age, unless satisfaction asrequired by the said proviso is recorded,an oath cannot be administered to thechild witness. In this case, in thedeposition of PW-1 Ajay, it is mentionedthat his age was 12 years at the time ofthe recording of evidence. Therefore, theproviso to Section 4 of the Oaths Actwillnot apply in this case. However, in view ofthe requirement of Section 118of theEvidence Act,the learned Trial Judge wasunder a duty to record his opinion that thechild is able to understand the questionsput to him and that he is able to giverational answers to the questions put tohim. The Trial Judge must also record hisopinion that the child witness understandsthe duty of speaking the truth and statewhy he is of the opinion that the childunderstands the duty of speaking thetruth.

9. It is a well-settled principle thatcorroboration of the testimony of a childwitness is not a rule but a measure ofcaution and prudence. A child witness oftender age is easily susceptible totutoring. However, that by itself is noground to reject the evidence of a childwitness. The Court must make carefulscrutiny of the evidence of a child witness.The Court must apply its mind to thequestion whether there is a possibility ofthe child witness being tutored. Therefore,scrutiny of the evidence of a child witnessis required to be made by the Court withcare and caution.

10. Before recording evidence of aminor, it is the duty of a Judicial Officer toask preliminary questions to him with aview to ascertain whether the minor canunderstand the questions put to him andis in a position to give rational answers.The Judge must be satisfied that the minoris able to understand the questions andrespond to them and understands theimportance of speaking the truth.Therefore, the role of the Judge whorecords the evidence is very crucial. Hehas to make a proper preliminaryexamination of the minor by putting appropriate questions to ascertainwhether the minor is capable ofunderstanding the questions put to himand is able to give rational answers. It isadvisable to record the preliminaryquestions and answers so that theAppellate Court can go into thecorrectness of the opinion of the TrialCourt."

25. 18.2. In the case of P. Ramesh(supra), the Hon'ble Supreme Court hasobserved in Paragraphs-13 to 16 asunder:-"13. Section 118 [118. Who maytestify. All persons shall be competent totestify unless the Court considers thatthey are prevented from understandingthe questions put to them, or from givingrational answers to those questions, bytender years, extreme old age, disease,whether of body or mind, or any othercause of the same kind. Explanation. Alunatic is not Incompetent to testify,unless he is prevented by his lunacy fromunderstanding the questions put to himand giving rational answers to them."] ofthe Evidence Act, 1872 deals with thecompetence of a person to testify beforethe court. Section 4 ["4. Oaths oraffirmations to be made by witnesses, interpreter and jurors.-(1)

Oaths or affirmations shall be made by thefollowing persons, namely: (a) allwitnesses, that is to say, all persons whomay lawfully be examined, or give, or berequired to give, evidence by or beforeany court or person having by law orconsent of parties authority to examinesuch persons or to receive evidence; (b)interpreters of questions put to, andevidence given by, witnesses; and (c)jurors: Provided that where the witness isa child under twelve years of age, and thecourt or person having authority toexamine such witness is of opinion that,though the witness understands the dutyof speaking the truth, he does notunderstand the nature of an oath oraffirmation, the foregoing provisions ofthis section and the provisions of Section5 shall not apply to such witness; but inany such case the absence of an oath oraffirmation shall not render inadmissibleany evidence given by such witness noraffect the obligation of the witness tostate the truth. (2) Nothing in this sectionshall render it lawful to administer, in acriminal proceeding, an oath oraffirmation to the accused person, unless he is examined as a witness for thedefence, or necessary to administer to theofficial interpreter of any court, after hehas entered on the execution of the dutiesof his office, an oath or affirmation that hewill faithfully discharge those duties."] ofthe Oaths Act, 1969 requires all witnessesto take oath or affirmation, with anexception for child witnesses under theage of twelve years. Therefore, if the courtis satisfied that the child witness belowthe age of twelve years is a competentwitness, such a witness can be examinedwithout oath or affirmation. The rule wasstated in Dattu Ramrao Sakhare v. State ofMaharashtra [Dattu Ramrao Sakhare v.State of Maharashtra, (1997) 5 SCC 341:1997 SCC (Cri) 685], where this Court, inrelation to child witnesses, held thus: (SCCp. 343, para 5)

"5.... A child witness if foundcompetent to depose to the facts andreliable one such evidence could be thebasis of conviction. In other words even inthe absence of oath the evidence of achild witness can be considered underSection 118 of the Evidence Act providedthat such witness is able to understandthe questions and able to give rational answers thereof. The evidence of a childwitness and credibility thereof woulddepend upon the circumstances of eachcase. The only precaution which the courtshould bear in mind while assessing theevidence of a child witness is that thewitness must be a reliable one and his/herdemeanour must be like any othercompetent witness and there is nolikelihood of being tutored."

14. A child has to be a competentwitness first, only then is her/hisstatement admissible. The rule was laiddown in a decision of the US SupremeCourt in Wheeler v. United States [Wheelerv. United States, 1895 SCC OnLine US SC220: 40 L.Ed. 244: 159 US 523 (1895)],wherein it was held thus: (SCC OnLine USSC para 5)

"5. While no one would think ofcalling as a witness an infant only two orthree years old, there is no precise agewhich determines the question ofcompetency. This depends on the capacityand intelligence of the child, hisappreciation of the difference betweentruth and falsehood, as well as of his dutyto tell the former. The decision of thisquestion rests primarily with the trial Judge, who sees the proposed witness, notices his manner, his apparentpossession or lack of Intelligence, andmay resort to any examination which willtend to disclose his capacity andintelligence as well as his understandingof the obligations of an oath. As many ofthese matters cannot be photographedinto the record the decision of the trialJudge will not be disturbed on reviewunless from that which is preserved it isclear that it was erroneous."

15. In Ratansinh Dalsukhbhai Nayak v.State of Gujarat [Ratansinh DalsukhbhaiNayak v. State of Gujarat, (2004) 1 SCC64: 2004 SCC (Cri) 7. Subsequently, reliedupon in Nivrutti Pandurang Kokate v. Stateof Maharashtra, (2008) 12 SCC 565:(2009) 1 SCC (Cri) 454], this Court heldthus: (SCC pp. 67-68, para 7)

"7. The decision on the questionwhether the child witness has sufficientintelligence primarily rests with the trialJudge who notices his manners, hisapparent possession or lack ofintelligence, and the said Judge may resortto any examination which will tend todisclose his capacity and intelligence aswell as his understanding of the obligation of Patna High Court CR. APP (DB) No. 1039of 2015 dt. 01-11-2023 20/24 an oath. Thedecision of the trial court may, however,be disturbed by the higher court if fromwhat is preserved in the records, it is clearthat his conclusion was erroneous. Thisprecaution is necessary because childwitnesses are amenable to tutoring andoften live in a world of make believe.Though it is an established principle thatchild witnesses are dangerous witnessesas they are pliable and liable to beinfluenced easily, shaped and moulded,but it is also an accepted norm that if aftercareful scrutiny of their evidence the courtcomes to the conclusion that there is animpress of truth in it, there is no obstaclein the way of accepting the evidence of achild witness."

16. In order to determine the competencyof a child witness, the Judge has to formher or his opinion. The Judge is at libertyto test the capacity of a child witness andno precise rule can be laid down regardingthe degree of intelligence and knowledgewhich will render the child a competentwitness. The competency of a childwitness can be ascertained by questioningher/him to find out the capability to

understand the occurrence witnessed andto speak the truth before the court. Incriminal proceedings, a person of any ageis competent to give evidence if she/he isable to (i) understand questions put as awitness; and (ii) give such answers to thequestions that can be understood. A childof tender age can be allowed to testify ifshe/he has the intellectual capacity tounderstand questions and give rationalanswers thereto. [Ratansinh DalsukhbhaiNayak v. State of Gujarat, (2004) 1 SCC64: 2004 SCC (Cri) 7] A child becomesincompetent only in case the courtconsiders that the child was unable tounderstand the questions and answerthem in a coherent and comprehensiblemanner. [Sarkar, Law of Evidence, 19thEdn., Vol. 2, Lexis Nexis, p. 2678 citingDirector of Public Prosecutions v. M,[1998] Q.B. 913: [1998] 2 WLR 604:[1997] 2 All ER 749 (QBD)] If the childunderstands the questions put to her/himand gives rational answers to thosequestions, it can be taken that she/he is acompetent witness to be examined."26. From the aforesaid decisions renderedby the Hon'ble Supreme Court, it can besaid that before recording evidence of a minor, it is the duty of Judicial Officer toask preliminary question to him/her with aview to ascertain whether the minor canunderstand the questions put to him/herand is in a position to give rationalanswers. The Judge must be satisfied thatthe minor is able to understand thequestions and respond to them andunderstands the importance of speakingthe truth. The Judge has to make a properpreliminary examination of a minor byputting appropriate questions to ascertainwhether the minor is capable ofunderstanding the question put to him. Itcan be further said that in order todetermine the competency of the childwitness, the Judge has to form his/heropinion. The Judge is at liberty to test thecapacity of a child witness. Thecompetency of a child witness can beascertained by questioning him to find outthe capability to understand theoccurrence witnessed and to speak thetruth before the Court. In criminalproceedings, the person of any age, iscompetent to give evidence if he is able tounderstand questions put as a witness andgive such answers to the questions thatcan be understood. A child of tender age can be allowed to testify if he has theintellectual capacity to understand thequestions and give rational answersthereto. However, a child becomesincompetent in a case the Court considersthat the child was unable to understandthe questions and answer them in acoherent and comprehensible manner.

27. Keeping in view the aforesaiddecisions, if the facts of the present caseare examined, it transpires that theconcerned Trial Judge has not carried outthe aforesaid exercise by putting questionto the child witness with a view toascertain whether the PW-8 (child witness)is capable to understand the question putto her. Thus, we are of the view that thereliance placed by the learned Trial Courtonly on the deposition given by PW-8 whois the child witness, aged about 10 yrs.and was aged about 7.5 yrs. at the time ofoccurrence, is misplaced. Therefore, theTrial Court has wrongly placed the relianceupon the said deposition of the childwitness.”

96. In the case of Rizan and Another

Versus State of Chhattisgarh reported in

(2003) 2 SCC 661, wherein there Lordships haveheld at Para No. 12 which reads as follows:-

12. Stress was laid by theaccused-appellants on the non-acceptanceof evidence tendered by PW 1 to a largeextent to contend about the desirability tothrow out the entire prosecution case. Inessence the prayer is to apply theprinciple of "falsus in uno falsus inomnibus" (false in one thing, false ineverything). This plea is clearly untenable.Even if major portion of evidence is foundto be deficient, in case residue is sufficientto prove guilt of an accused, his convictioncan be maintained. It is the duty of thecourt to separate grain from chaff. Wherechaff can be separated from grain, itwould be open to the court to convict anaccused notwithstanding the fact thatevidence has been found to be deficient,or to be not wholly credible. Falsity ofmaterial particular would not ruin it fromthe beginning to end. The maxim "falsusin uno falsus in omnibus" has noapplication in India and the witness orwitnesses cannot be branded as liar(s).The maxim "falsus in uno falsus inomnibus" has not received generalacceptance nor has this maxim come to occupy the status of the rule of law. It ismerely a rule of caution. All that itamounts to, is that in such casestestimony may be disregarded, and notthat it must be disregarded. The doctrinemerely involves the question of weight ofevidence which a court may apply in agiven set of circumstances, but it is notwhat may be called a mandatory rule ofevidence. (See Nisar Ali v. State of U.P.) Ina given case, it is always open to a courtto differentiate the accused who had beenacquitted from those who were convictedwhere there are a number of accusedpersons. (See Gurcharan Singh v. State ofPunjab.) The doctrine is a dangerous onespecially in India for if a whole body of thetestimony were to be rejected, becausethe witness was evidently speaking anuntruth in some aspect, it is to be fearedthat administration of criminal justicewould come to a dead stop. Witnesses justcannot help in giving embroidery to astory, however, true in the main.Therefore, it has to be appraised in eachcase as to what extent the evidence isworthy of acceptance, and merelybecause in some respects the courtconsiders the same to be insufficient for placing reliance on the testimony of awitness, it does not necessarily follow as amatter of law that it must be disregardedin all respect as well. The evidence has tobe sifted with care. The aforesaid dictumis not a sound rule for the reason that onehardly comes across a witness whoseevidence does not contain a grain ofuntruth or at any rate exaggeration,embroideries or embellishment. (SeeSohrab v. State of and Ugar Ahir v. State ofBihar.) An attempt has to be made to, asnoted above, in terms of felicitousmetaphor, separate grain from the chaff,truth from falsehood. Where it is notfeasible to separate truth from falsehood,because grain and chaff are inextricablymixed up, and in the process of separationan absolutely new case has to bereconstructed by divorcing essentialdetails presented by the prosecutioncompletely from the context and thebackground against which they are made,the only available course to be made is todiscard the evidence in toto. (SeeZwinglee Ariel v. State of M.P. and BalakaSingh v. State of Punjab.) As observed bythis Court in State of Rajasthan v. Kalkinormal discrepancies in evidence are

those which are due to normal errors ofobservation, normal errors of memory dueto lapse of time, due to mental dispositionsuch as shock and horror at the time ofoccurrence and those are always there,however honest and truthful a witnessmay be. Material discrepancies are thosewhich are not normal, and not expected ofa normal person. The courts have to labelthe category intoto which a discrepancy may be categorized. While normaldiscrepancies do not corrode thecredibility of a party's case, materialdiscrepancies do so. These aspects werehighlighted in Krishna Mochi v. State ofBihar and and Gangadhr Behera V. Stateof Orissa acquisition have been clearlyestablishedagainsttheaccusedappellants in the case at hand. The courtbelow have categorically indicated thedistinguishing features in evidence so faras the acquitted and convicted accusedare concerned.

97. It is relevant to note that the aforesaidprinciples have also been reiterated by the Hon’bleSupreme Court in the case of Syed Ibrahim Vs.State of A.P. reported in (2006) 10 SCC 601 at Para No. 10, further the following principles were laiddown at Para No. 11 which reads as follows:-

11. In the background of principles setout above it is to be seen how far theevidence of PW 1 is cogent and credible.Merely because he was the solitarywitness who claimed to have seen theoccurrence, that cannot be a ground todiscard his evidence, in the background ofwhat has been stated in Section 134 ofthe Evidence Act, 1872 (in short "theEvidence Act"). No particular number ofwitnesses are required for the proof of anyfact; material evidence and not number ofwitnesses has to be taken note of by thecourts to ascertain the truth of theallegations made. Therefore, if theevidence of PW 1 is accepted as cogentand credible, then the prosecution is tosucceed. It is to be noted that PW 1, fatherof the appellant, claimed to have set lawinto motion. The testimony of PW 1 was tothe effect that after witnessing a part ofthe occurrence he had run to the policestation and had come back within aboutfive minutes. The evidence on recorddisproves veracity of this part of hisevidence. The occurrence is alleged tohave taken place at about 10 p.m. The FIR

was lodged at the police station at about11.30 p.m. PW 1 and the investigatingofficer accepted that it will take nearly onehour for somebody on foot to reach thepolice station considering the distance ofthe alleged place of occurrence and thepolice station. There is another interestingfactor: PW 1 accepted in the cross-examination that the report (Ext. P-1) waswritten in the police station in thepresence of Sub-Inspector and aconstable. But in his examination-in-chief,he had stated that he had got written thereport by somebody at a hotel and theperson normally writes petitions. Noparticulars of this person who allegedlyscribed the report, not even his name, wasstated by PW 1. His evidence is further tothe effect that he alone had come to thepolice station where the report was lodgedand that is how he admitted that thereport was written at the police station.This may not appear to be that importanta factor considering the illiteracy of PW 1.But there is another significant factorwhich completely destroys the prosecutionversion and the credibility of PW 1 as awitness. He has indicated four differentplaces to be the place of occurrence. In his

examination-in-chief he stated that theoccurrence took place in his house. In thecross-examination he stated that theincident took place at the house of hiswife, the deceased's mother. This is a veryimportantfactorconsideringtheundisputed position and in fact theadmission of PW 1 that he and his wifewere separated nearly two decades ago,and that he was not on visiting terms withhis wife. Then the question wouldautomatically arise as to how in spite ofstrained relationship he could have seenthe occurrence as alleged in the house ofhis wife. That is not the end of the matter.In his cross-examination he further statedthat the incident happened in the smalllane in front of the house of his wife. Thisis at clear variance with the statementthat the occurrence took place inside thehouse where allegedly he, the deceased,his son, PW 2 and daughters, PWs 3 and 6were present. That is not the final say ofthe witness. He accepted that in the FIR(Ext. P-1) he had stated the place ofoccurrence to be the house of thedeceased though the FIR is not asubstantive evidence yet, the same canbe used to test the veracity of the witness.

P.W. 1 accepted that what was stated inthe FIR was correct. When the place ofoccurrence itself has not been establishedit would not be proper to accept theprosecution version.

98. As per the above said citations it can beunderstood that Sanha is a valuable piece ofevidence and failure to produce the same before theCourt renders the prosecutioncase doubtful andadverse interference can also be drawn against theprosecution. The above cited judgment also dealswith the competency of the witness. In the presentcase also, the trial Court erred in not putting anypreliminary questions to P.W. 13 who is alleged to bea minor witness, therefore, the above citationssquarely apply to this case.

99. It is also the contention of the LearnedAmicus Curiae that the place of occurrence isdoubtful as per the case of the prosecution witness.According to the prosecution, the place of occurrenceis a land adjacent to the house of the deceased,however, the evidence of Investigating Officer/P.W.15 disclose that the body was found on the Verandah and he received information regarding the incidentfrom the varandah from the P.W. 14.

100. As per the above citations, it is duty ofthe trial Court Court to separate the grain from thechaff and where chaff can be separated from thegrain it is open to the Court to exercise its discretionin either convicting or acquitting the accused.Admittedly, in the present case also as per theevidence of P.W. 14 and other eye-witnesses, theincident occurred on the vacant land but there is nota single iota of evidence before the trial Court as towho shifted the dead body from the place ofoccurrence to the house of the deceased and at whattime the dead body was shifted and further whogave information to the police about the death of thedeceased. The main and crucial witness in this caseis P.W. 14, the testimony of P.W. 14, however, is alsodoubtful as her oral evidence contradicts with themedical testimony. She herself is said to be injured inthe case. On the one hand, P.W. 14 deposed that shewas unconscious from the time of second occurrencei.e. 12:00 noon to 05:00 P.M. On the other hand, she testified that she was waiting for the police to arrivein order to give her report, therefore, this Courtcannot rely upon on the evidence of P.W. 14 soconvict the appellants.

101. The trial Court has erroneously shiftedthe burden on the accused to prove that they are notguilty of the offence considering the submissionsmade by the counsel for the defence on the contextof right to private defence.

102. On perusal of the evidence on record, itis evident that the appellants have never taken theplea of right to private defence, and their defence isa complete denial of the case of the prosecution.

103. On appreciation of the evidence, it canbe construed that the prosecution has miserablyfailed to bring home the guilt of the appellants eitherfor the offence punishable under Section 302 of IPCor under Section 304 part-A of IPC, therefore, thejudgment of the trial Court is liable to be set aside.

104. In result both the criminal appeals arehereby allowed. The judgment and conviction of thetrial Court in Sessions Case No. 170 of 2002, on the file of Additional District and Sessions Judge, Fast-Track Court (FTC), IV Jamui vide order dated26.02.2004 is hereby set aside.

105. The record reveals that both the

appellants were enlarged on bail by the Court videorder dated 06.07.2004. Hence, the bail bonds of theappellants shall stand cancelled.

(G. Anupama Chakravarthy, J)

Manish/-

AFR/NAFRNAFRCAV DATEN/AUploading Date16.05.2025Transmission Date16.05.2025