Ranchi v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Acq. Appeal (DB) No. 29 of 2020 Anirudh Kumar Nayak aged about 37 years, son of late Budhwa Nayak, resident of village-Tumbagutu, Karamtoli, Near Church, P.O. and P.S.- Namkum, District-Ranchi. Versus …. ....... Appellant 1. The State of Jharkhand. 2. Bijay Nayak son of Bandhan Nayak, resident of village-Karamtoli, Tumbagutu, P.O. and P.S.-Namkum, District-Ranchi. 3. Dharma Nayak son of late Yadu @ Jadu Nayak, resident of village- Karamtoli, Tumbagutu, P.O. and P.S.-Namkum, District-Ranchi. 4. Ajay Nayak @ Gobar Singh @ Gabbar Singh Nayak @ Ajay son of late Jitendra Nayak, resident of village-Lohara Toli, Pundag, P.O.-Jagarnathpur, P.S.-Jagarnathpur (Pundag OP), District-Ranchi. 5. Sikandar Nayak son of Rameshwar @ Kameshwar Nayak, resident of village Chatakpur, P.O. & P.S.-Namkum, District-Ranchi. 6. Ram @ Vijay Nayak, son of Jitendra Nayak, resident of village Lohara Toli, Pundag, P.O.-Jaganathpur, P.S.-Jagarnathpur (Pundag OP), District- .......... …... Respondents Ranchi. With Cr. Appeal (DB) No. 125 of 2020 Binod Nayak aged about 37 years, son of late Kalo Nayak, R/o village- Karamtoli Tumbagutu, PO&PS- Namkum, District- Ranchi Versus The State of Jharkhand …. ....... Appellant .......... …... Respondent With Cr. Appeal (DB) No. 207 of 2020 1. Gurucharan Nayak, aged about 48 years, son of Ramkeshwar Nayak, Resident of Village Tundul, Post Office- Balalong, Police Station- Nagri, District-Ranchi. 2. Lalu @ Sanjay Nayak, aged about 27 years, son of Mantan Nayak, Resident of Village Lohara Toli, Pundag, Post Office- Pundag, Police Station- Jagarnathpur (Pundag O.P.), District- Ranchi …. ...... Appellants Versus The State of Jharkhand .......... …... Respondent CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY ------ For the Appellants : Mr. A. K. Kashyap, Senior Advocate : Mrs. Supriya Dayal, Advocate 2 Acq. Appeal (DB) No. 29 of 2020 & Ors. : Mr. Anurag Kashyap, Advocate [in Criminal Appeal (DB) No. 207 of 2020] : Mr. Sanjiv Kumar, Senior Advocate : Md. Shadab Ansari, Advocate : Mr. Sanjeet Nayak, Advocate [in Criminal Appeal (DB) No. 125 of 2020] : Mrs. Neeta Krishna, Amicus [in Criminal Appeal (DB) No. 125 of 2020] : Mr. D. K. Chakraverty, Advocate [in Acq. Appeal (DB) No. 29 of 2020] : Mr. Pankaj Kumar, PP [in Criminal Appeal (DB) No. 207 of 2020] : Ms. Nehala Sharmin, Spl. P.P. [in Acquittal Appeal (DB) No. 29 of 2020 & Criminal Appeal (DB) No. 125 of 2020] : Mr. Subodh Kumar Pandey, Advocate [in Acquittal Appeal (DB) No. 29 of 2020] : Mr. D. K. Chakraverty, Advocate : Mr. Gaurav Kumar, Advocate [in Criminal Appeal (DB) No. 125 of 2020] For the State For Resp. Nos. 2 to 6 For the Informant J U D G M E N T C.A.V on 21/08/2023 Pronounced on 11th September 2023 Per Shree Chandrashekhar, J. Acquittal Appeal (DB) No. 29 of 2020 has been filed by Anirudh Kumar Nayak who is the informant of Namkum PS Case No.198 of 2013. He has challenged the judgment of acquittal of Bijay Nayak, Dharma Nayak, Ajay Nayak, Sikandar Nayak, and Ram @ Vijay Nayak recorded in Sessions Trial Case Nos.49 of 2014 and 102 of 2014. 2. Binod Nayak, Gurucharan Nayak, and Lalu @ Sanjay Nayak who were also put on trial along with the above-named accused have challenged their conviction under section 302/34 of the Indian Penal Code and section 27(1) of the Arms Act and the sentence of life imprisonment with a fine of Rs.10,000/- each awarded to them for the offence under section 302/34 of the Indian Penal Code and RI for 4 years and a fine of Rs.5,000/- each under section 27(1) of the Arms Act, in the aforesaid sessions trial cases. 3. A written report dated 1st August 2013 was given to the officer- in-charge of Namkum PS and on that basis a First Information Report was lodged against 13 persons. Anirudh Kumar Nayak made a specific allegation in his written report that in the afternoon of 1st August 2013 Binod Nayak 3 Acq. Appeal (DB) No. 29 of 2020 & Ors. made phone calls to his brother Ajit Nayak asking him to meet Pramod Singh in connection to a land dispute. His brother left village Tumbaguttu to meet Binod Nayak and both were seen together sitting at Nikhil Tent House at Sirkhatoli within Namkum PS. The informant further stated that his younger brother Amit Kumar Nayak while returning home from the college was passing through Nikhil Tent House and on that day Ajit Nayak was seen sitting at Nikhil Tent House with Binod Nayak, Bijay Nayak, Shiva Nayak, Ravi Nayak, Sikandar Nayak, Ajay @ Gabbar Singh Nayak, Sheru Nayak, Lalu Nayak, and Ram Nayak. The informant was informed by the witnesses that his brother was seen gossiping with the accused near the Block health center where he was shot dead around 04.15 PM. On receiving telephonic information, he left for the Block health center and on the way saw Lalu Nayak near the Military Camp going towards Kochatoli on a speeding motorcycle. The informant expressed his apprehension that Binod Nayak who was repeatedly calling his brother for measurement of 1.78 acres of land in respect of which a dispute was going on with Pramod Singh killed his brother under a conspiracy hatched with Lalu Nayak, Ram Nayak, and Gurucharan Nayak. 4. Dr. Jyoti Asha Champi who conducted the postmortem on the dead body of Ajit Nayak found the following injuries :
Legal Reasoning
“External- Abrasion- (i) 6 cm x 4 cm over left fore head (ii) 3 cm x ½ cm over bridge of nose (iii) 4 cm x 2 cm front of left knee Fire-arm injury- (i) Wound of entrance 1 cm x ½ cm on right temporal region of head surrounded by tattooing 15 cm x 10 cm area on right side of face and right arm lateral side. The projectile passes through soft tissues, grazing the right temporal bone and makes an exit wound 2cm x lcm on right temporal region interior part. (ii) Wound of entrance 3 cm x 1 cm on fronto lateral left chest middle part 8 cm below the nipple and 15 cm left to mid line surrounded by tattoing 9cm x 4cm area. The projectile passes through soft-tissues and breaks the left fifth ribs, perforated he pericardium, heart, right lung, then breaks the right fifth ribs lateral side. A bullet has been found lodged in soft tissue of back of right chest upper part. The margin of entrance wound was abraded and inserted. The track of wound was abraded and contused and there is presence of blood and blood-clot in pericardial and right chest cavity. Opinion- (i) The above noted injuries were ante-mortem. (ii) Abrasions were caused by hard and blunt substance and fire arm- injuries were caused by fire-arm. (iii) Death was due to hemorrhagic shock as a result of above noted fire- arm injury no. 2. 4 Acq. Appeal (DB) No. 29 of 2020 & Ors. (iv) Time since death was 6 hours to 24 hours from the time of P.M. Examination. (v) The recovered bullet was sent in a sealed envelope along with P.M. report. (vi). The above noted fire-arm injuries were sufficient to cause death in the ordinary course of nature.” 5. After the investigation, seven accused were sent up for trial through Chargesheet No.304 of 2013 dated 25th October 2013 and Sessions Trial No.49 of 2014 was registered against them. Later on, Sessions Trial No.102 of 2014 was registered against Lalu Nayak pursuant to the filing of Chargesheet No.335 of 2013 dated 24th December 2013. By an order dated 6th February 2014, both the sessions trials were amalgamated. Eighteen witnesses were examined by the prosecution to support the charge against Binod Nayak, Bijay Nayak, Dharma Nayak, Ajay Nayak @ Gobar Singh @ Gabbar Singh Nayak, Gurucharan Nayak, Sikandar Nayak, Ram @ Vijay Nayak and Lalu @ Sanjay Nayak framed for the offence under sections 302/34 and 302/120-B of the Indian Penal Code and section 27(1) of the Arms Act. 6. Besides the oral evidence, the prosecution relied on the following documentary evidence to support the charge against the accused: Exhibit 1- signature of Panna Lakra on the written report of occurrence. Exhibit 2-signature of Panna Lakra on his statement u/s 164 Cr. PC. Exhibit 2/1- signature of Amit Kumar Nayak on his statement u/s 164 Exhibit 2/2 and 2/3- signature of Shankar Nayak & Tarun Kumar Nayak on the inquest report, prepared on 01.08.2013, at around 4.30 pm. Exhibit 2/4 and 2/5- signature of Shankar Nayak & Tarun Kumar Nayak on the seizure list dated 01.08.2013 for seizure of blood stain soil and two mobiles from place of occurrence. Exhibit 2/6 and 2/7- signature of Shankar Nayak & Tarun Nayak on the written report about the occurrence. Exhibit 2/8 and 2/9- signature of Shankar Nayak & Tarun Kumar Nayak on the seizure list dated 02.08.2013, for seizure of two mobiles from tent house. Exhibit 3-postmortem report Exhibit 4-S.F.S.L Report of seized blood stain soil. Exhibit 4/1-SFSL report regarding blood group. Exhibit 5-forwarding letter for SFSL report. Exhibit 6-statement u/s 164 Cr. PC. of Vijay Kumar Exhibit 6/1-statement u/s 164 Cr. PC. of Amit Kumar Nayak Exhibit 6/2- statement u/s 164 Cr. PC. of Panna Lakra Exhibit 7- inquest report, prepared on 01.08.2013, at around 4.30 pm. Exhibit 8- seizure list dated 01.08.2013, for seizure of pellet from place of occurrence. 5 Acq. Appeal (DB) No. 29 of 2020 & Ors. Exhibit 8/1- seizure list dated 01.08.2013 in the handwriting and signature of Md. Sohaib Khan, for seizure of blood stain soil and two mobiles from place of occurrence. Exhibit 8/2-seizure list dated 02.08.2013, for seizure of two mobiles from tent house. Exhibit 8/3- seizure list dated 28.08.2013, for seizure of white coloured Apachi Motorcycle from Pahalwana Dhaba, NH 33, Sidroll, Namkum Exhibit 9- Endorsement on the FIR by the Officer in-charge Binod Kumar for registration of the case. Marks for Identification X-X/6- CDR of mobiles. 7. The trial Judge held that the eyewitnesses were present near the place of occurrence and had seen Binod Nayak, Gurucharan Nayak, and Lalu Nayak talking to Ajit Nayak near the Block office. The learned Judge held that PW1 and PW3 clearly deposed in the Court that Binod Nayak shot at Ajit Nayak and thereafter all three fled away together. However, the prosecution story that the murder of Ajit Nayak was committed in the furtherance of a criminal conspiracy was found not established and, accordingly, the charge under section 120-B of the Indian penal Code failed. The learned Judge further held that Ajit Nayak was shot dead in furtherance of the common intention and the charges under section 302/34 of the Indian Penal Code and section 27(1) of the Arms Act were proved against Binod Nayak, Gurucharan Nayak, and Lalu Nayak. At the same time, finding no evidence against Bijay Nayak, Dharma Nayak, Ajay Nayak @ Gabbar Singh, Sikandar Nayak, and Ram @ Vijay Nayak the learned Judge held that the prosecution was not able to bring home the charge against them and, accordingly, they were acquitted of the charge under sections 302/34 and 302/120-B of the Indian Penal Code and section 27(1) of the Arms Act. 8. The learned Additional Judicial Commissioner-XX, Ranchi has held as under: “30. ……………………………………………………………………….. In the instant case, I find that the prosecution has not adduced any circumstantial evidence for showing and establishing that there was a meeting of mind of accused persons to do an illegal act i.e. commission of crime of murder of the deceased. Mere circumstances that there was a land dispute in between the deceased and accused Binod Nayak, all accused persons were sitting at the tent shop of the accused Binod Nayak, and, statement of I.O. that on the relevant day of occurrence, accused persons had made call to each other, do not establish the offence of conspiracy. 31. Now, I find that the PW7 (doctor) has opined that deceased died because of fire arm injuries. During the postmortem, a bullet was recovered from the body of the deceased. A pellet was recovered and seized by the I.O. from the place of occurrence (Ext.8). The medical evidence in this regard is fully corroborated by the statement of eye- 6 Acq. Appeal (DB) No. 29 of 2020 & Ors. witnesses PW1, PW3, &, PW4, as they have deposed to the effect that two shots were made on the body of the deceased. So, it is clear that the accused persons had used arms in contravention of section 5 of the Arms Act for committing murder of the deceased Ajit Nayak. 32. From aforesaid discussion of prosecution's evidence, it is clearly proved that on the relevant day and time of occurrence, three accused persons Binod Nayak (A1), Gurucharan Nayak (A5), and Lalu @ Sanjay Nayak were present at the alleged place of occurrence of murder and with their common intention they fired gun shots resulting in death of deceased Ajit Nayak. Hence, I find and hold that the prosecution has succeeded to prove the charge of offences punishable u/s 302 r/w sec. 34 of IPC, and u/s 27(1) of the Arms Act against said three accused persons Binod Nayak (A1), Gurucharan Nayak (A5), and Lalu @ Sanjay Nayak. They are found guilty u/s 302 r/w sec. 34 of IPC, and u/s 27(1) of the Arms Act, accordingly, they are convicted for the same. The prosecution has failed to establish the charge of offence u/s 120B of IPC against the said three accused persons, accordingly, they are acquitted from the charge of offence u/s 120B of IPC. They are on bail, hence, their bail are cancelled, and, they are taken in custody. Let custody warrant be issued against them, and the record shall be put up on 17.12.2019 for hearing on the point of sentence. 33. At the same time, I find and hold that the prosecution has miserably failed to bring home the charge levelled against the remaining five accused persons Bijay Nayak (A2), Dharma Nayak (A3), Ajay @ Gobar Singh @ Gabbar Singh Nayak (A4), Sikandar Nayak (A6), and, Ram @ Vijay Nayak (A7), beyond the shadow of all reasonable doubts. As a result, the said five accused persons are not found guilty for committing any offence, hence, they are acquitted from the charge of Section 302/34, 302/120B of IPC, and section 27(1) of the Arms Act. Since they are on bail, they and their bailors are discharged from the liability of their bail bonds.” 9. The prosecution case began with the theory of criminal conspiracy hatched by Binod Nayak to murder Ajit Nayak. According to the prosecution, the motive behind the crime was a piece of land measuring about 1.78 acres which Binod Nayak wanted to grab and that is the reason he conceived a plan in which others also joined hands. As the prosecution story goes, Bijay Nayak, Dharma Nayak, Ajay Nayak, Sikandar Nayak, and Ram Nayak were also part of the criminal conspiracy and shared a common intention in furtherance of which Ajit Nayak was murdered and a common charge under sections 302/34 and 302/120-B of the Indian Penal Code and section 27(1) of the Arms Act was framed against them. Gurucharan Nayak and Lalu Nayak are said to have shared common intention with Binod Nayak who fired at Ajit Nayak near Namkum Block office and they have been convicted on the charge under section 302/34 of the Indian Penal Code and section 27(1) of the Arms Act. 10. As PW10, the informant tendered evidence in the Court that his brother Ajit Nayak left by his car to meet Binod Nayak who was repeatedly calling him on 1st August 2013. At that time, he was working with his 7 Acq. Appeal (DB) No. 29 of 2020 & Ors. brother at the Church and picked up one of the calls of Binod Nayak who asked him to send Ajit Nayak for a meeting. He received a phone call around 04.35 PM from a friend of his brother that Ajit Nayak was shot dead near Namkum health center. According to PW10, Mahavir Uraon, Suraj Mahali, Vijay Kumar Lal and Mahadeo Nayak were present when he reached Namkum health center. He reaffirmed in the Court that his younger brother saw the accused persons sitting with Ajit Nayak at Nikhil Tent House. He further said that his brother was killed due to the land dispute. 11. The prosecution examined four witnesses projecting them as eyewitnesses. They were not related to the deceased nor did they claim that they were close friends of the deceased. PW1, PW2, and PW3 have stated that they were working with Ajit Nayak and that was the reason of their acquaintance with Ajit Nayak. PW1 specifically denied in his cross- examination that he was related to or a friend of Ajit Nayak and PW4 was also not a close friend of Ajit Nayak, though a co-villager. PW1 was taking tea at a tea stall near Namkum Block office in the afternoon of 1st August 2013. He deposed in the Court that PW3 was with him at the tea stall. According to PW1, Ajit Nayak, Gurucharan Nayak, Lalu Nayak, and Binod Nayak were talking to each other near the Block office and Binod Nayak suddenly fired at Ajit Nayak who started running away towards the hospital and fell down near the gate of the hospital. In the ensuing commotion, people started fleeing away and Gurucharan Nayak, Binod Nayak, and Lalu Nayak left on a motorcycle brandishing pistols in their hands. According to PW1, he ran to Sadabahar Chowk and came again at the place of occurrence when saw the police arriving there. He gave a statement to the police narrating the incident and the police took his address and called him at the police station. He is a permanent resident of village Pandu where he returned after the incident and stayed there for about 2-2½ months. When he came back to his uncle’s place at village Barjhopari he was informed that the police were searching for him and then went to the police station. According to him, the police asked him to go to the house of Ajit Nayak where his statement was recorded by the police. 12. On 1st August 2013, PW2 was engaged as a laborer and working at Mission Costal Church with Ajit Nayak, Anirudh Nayak, and a 8 Acq. Appeal (DB) No. 29 of 2020 & Ors. few others. He is a witness about whom the informant has made a reference in his written report. He deposed in the Court that PW5 who is the younger brother of the deceased called him at Sadabahar Chowk and he saw the accused persons with the deceased sitting in the Nikhil Tent House. According to PW2, Binod Nayak asked Ajit Nayak to come to the Block office for a meeting in connection to the land dispute and left on a motorcycle. Ajit Nayak also left for the meeting and asked him to drop his brother at home and then come to Namkum Block. He saw Binod Nayak, Gurucharan Nayak, and Lalu Nayak talking to Ajit Nayak near the Block office. He further deposed in the Court that Binod Nayak fired at Ajit Nayak who ran towards the health center. He also fled away to Sadabahar Chowk and came back to the place of occurrence when the police arrived there. He narrated the entire story to the elder brother of Ajit Nayak who had reached there. PW2 also stated that he heard the sound of a second firing when he was fleeing away from the place of occurrence. He stated that he was so frightened that he fled away towards Sadabahar Chowk and could gather the courage to come back to the place of occurrence when he saw the police arriving there. In the cross-examination, PW2 stated that he was so afraid and frightened that he did not make any phone call nor did he inform any other person about the incident. In the cross-examination, this witness stood to his grounds that he had stated before the police that Ajit Nayak had asked him to take his younger brother home and then to come at Namkum Block and, that there was a land dispute between Ajit Nayak and the accused persons. 13. PW3 tendered evidence in the Court that around 04:15 PM- 04:30 PM on 1st August 2013 he was having tea near Namkum Block hospital. At that time, Ajit Nayak, Binod Nayak, Lalu Nayak and Gurucharan Nayak were talking to each other near the hospital gate and, in the meantime, Binod Nayak fired at Ajit Nayak and Gurucharan Nayak and Lalu Nayak chased Ajit Nayak who was running towards the hospital gate. After the firing, there was a commotion and he also ran away to Sadabahar Chowk. He further stated that the police made inquiries from him and noted his name and address after he again came back to the place of occurrence. According to PW3, he along with PW1 had gone to the police station but 9 Acq. Appeal (DB) No. 29 of 2020 & Ors. their statements were not recorded because the officer-in-charge was not there. While they were waiting outside the gate of the police station, two unknown persons came on a motorcycle and told them not to get involved in the matter because they also might be killed. In the cross-examination, PW3 admitted that he was staying in a rented house at Barjhopri which is about 3-4 km. away from Shalimar Bazaar and stated that Namkum Bazaar is further away from Barjhopri. 14. PW4 owned his statement recorded on 23rd August 2013 under section 164 of the Code of Criminal Procedure. In his deposition in the Court recorded on 23rd July 2014, PW4 said that Lalu Nayak, Gurucharan Nayak, Binod Nayak, and Ajit Nayak were talking near the Block gate. He saw an injured Ajit Nayak fleeing inside the gate and at that time Lalu Nayak, Gurucharan Nayak, and Binod Nayak had pistols in their hands. He admitted in the Court that Namkum Block is at a distance of about 2½ km from his house; on that day he had no work in the Block office and; there were several tea stalls on the way to Namkum Block. He further admitted that he is about 5 feet-5½ feet tall and the height of the boundary wall of the Block office was more than 6 feet. After a while when he came in the dock for further cross-examination, PW4 resiled from his previous statements made in the Court and stated that he had no personal knowledge about the occurrence and made tutored statements in the Court. PW4 went further ahead and said in the Court that he deposed falsely in the Court. 15. PW5 is the younger brother of Ajit Nayak. On 1st August 2013, he was returning from St. Xavier’s College and on the way home he reached Nikhil Tent House where his brother was sitting with Binod Nayak, Sikandar Nayak, Ram Nayak, Lalu Nayak, Gabbar Singh Nayak, Vijay Nayak, Ravi Nayak, Sheru Nayak and Shiva Nayak. He deposed in the Court that Binod Nayak asked his brother to come to the Block office for a meeting and he was asked to go home with Mahadev Nayak whom he had called to come there. The statement of PW5 was recorded under section 164 of the Code of Criminal Procedure with which he was confronted in the Court. He admitted that he did not make a statement before the Magistrate that when he arrived at the place of occurrence he was told that Binod Nayak, Lalu Nayak, Sikandar Nayak, Gabbar Singh Nayak, and Gurucharan 10 Acq. Appeal (DB) No. 29 of 2020 & Ors. Nayak had killed his brother in furtherance of a criminal conspiracy. However, he has in the same breath stated that he made such a statement before the police. 16. PW6 is the person who was a partner of Ajit Nayak and Binod Nayak in the purchase of land. His statement in the Court that there was no dispute between Ajit Nayak and Binod Nayak or with him has been
Legal Reasoning
highlighted by the learned counsels for the accused that the motive behind the murder of Ajit Nayak as projected by the prosecution was not established. PW8 and PW9 are maternal uncles of the deceased. They are the seizure witnesses who proved the seizure of mobile phones, pellets and blood-stained soil from the place of occurrence. PW8 affirmed in the Court that Samsung and Nokia mobile phones were seized from Binod Nayak on 2nd August 2013 when he was at Nikhil Tent House. PW8 has also seen the deceased sitting with Binod Nayak, Dharma Nayak, Lalu Nayak, Vijay Nayak, Sikandar Nayak, and others at Nikhil Tent House. PW9 affirmed that empty cartridges, blood-stained soil, and mobile sets were seized by the police in his presence. PW10 is the informant of this case. He was subjected to intense cross-examination but remained unfurled and stood to his ground that there was a land dispute between Binod Nayak and his brother. He expressed his suspicion before the police and reiterated in the Court that Binod Nayak who made several calls to Ajit Nayak and called him for a meeting was behind the murder of his brother. PW13 is another brother of the deceased who was on duty at the Army Unit. He made a statement in the Court that his brother Anirudh Nayak informed him on the phone that Binod Nayak had committed the murder of his brother in connivance with Gurucharan Nayak and Lalu Nayak. PW16 is the Magistrate who recorded the statement of the witnesses under section 164 of the Code of Criminal Procedure. 17. The testimony of PW1 and PW3 is attacked by Mr. A. K. Kashyap and Mr. Sanjiv Kumar, the learned senior counsels on the ground of (i) delay in recording of the police statement (ii) doubt on their presence at the time of occurrence and (iii) improvements made in the Court. These eyewitnesses are categorized by the defense as planted witnesses. Mr. Sanjiv Kumar, the learned senior counsel appearing for Binod Nayak 11 Acq. Appeal (DB) No. 29 of 2020 & Ors. submitted that PW1 and PW3 were available for their examination by the investigating officer inasmuch as these witnesses have admitted in the Court that they had disclosed their place of residence to the investigating officer but their statements under section 161 of the Code of Criminal Procedure have been recorded after a considerable delay and there is no explanation coming forth from the prosecution in this regard. The submissions made by Mr. Sanjiv Kumar, the learned senior counsel is two-fold viz. (i) PW1 and PW3 were planted by the prosecution at the latter stage of the investigation and (ii) on account of delay in recording their statements by the investigating officer their evidence in the Court became susceptible. Mrs. Neeta Krishna, the learned Amicus appearing for Binod Nayak would also submit that PW1 and PW3 were therefore no longer trustworthy witnesses on whom the Court can place implicit reliance. The learned senior counsels for the accused further submitted that no investigation was conducted regarding the land dispute, Birju Nayak and Amar Thakur were not examined by the investigating officer, and the material witnesses are associated with the deceased. 18. In a murder trial, the Court is required to examine the evidence of the witnesses very carefully where the murder is alleged to have been committed by the enemy of the victim. An inquiry as to whether the witness was a chance witness or really present on the scene of the offence necessarily goes to the cross-examination of the witness. The first step in this direction shall be to see whether there was a serious attempt by the defense to challenge the presence of the witness at the place of occurrence and mere speculative questions shall not serve any purpose. Therefore, a defense plea of delayed examination of a witness should be put to the investigating officer so as to enable him to explain and offer an explanation for the undue delay. This is necessary also for the reason that the question of delay in examining a witness may assume materiality only if there are other indications or suggestions of some unfair practice by the investigating officer to support the prosecution case. One significant feature of this case is that no question was put to the investigating officer for the delayed examination of Sarju Mahali (PW1) and Mahabir Oraon (PW3). In “Deep 12 Acq. Appeal (DB) No. 29 of 2020 & Ors. Chand & Ors.”1 the Hon’ble Supreme Court pointed out that the maxim falsus in uno falsus in omnibus is not a sound rule to apply in the conditions in this country. In cases where a witness is found to have given false evidence to certain particulars it becomes the duty of the Court to scrutinize the rest of his evidence with care and caution. If the witness is found trustworthy as to the main prosecution story and his remaining evidence supports the substratum of the prosecution case then the Court should uphold the prosecution case to the extent considered safe and trustworthy. 19. PW1 offered a reason for the delay in recording of his statements by the investigating officer. He stated that he had gone to the police station and was waiting at the gate of the police station. He was there for about 1½ -2 hours because the officer-in-charge was not there. In the meantime, two persons came on a motorcycle and inquired from him about his visit to the police station. These unknown persons who came on a motorcycle threatened him when he disclosed to them that he was waiting there to make a statement before the officer-in-charge. After this incident, he went back to his native village and appeared before the police to give his statement when again came back to the village Tumbaguttu. As reproduced hereinabove, PW3 also narrated a similar story for his delayed police statement. PW1 deposed in the Court that the Block office and the hospital were open on the day of the occurrence and the tea stall was at about 10 paces from the gate. He said in the cross-examination that PW3 was with him at the time of the occurrence at the tea stall. The conduct of PW1 has been criticized with reference to his statements in the cross-examination that (i) he did not disclose before the police that around 01.00 PM-01.30 PM on 1st August 2013 he had gone to the house of Ajit Nayak and met his mother (ii) he did not inform about the occurrence to any other person at Sadabahar Chowk (iii) he did not even inform his uncle and aunt about the incident at whose place he had spent the night and (iv) he did not reveal to any of his co-villagers about the occurrence. 20. In the first place, this is well settled as a legal proposition that conduct of a witness per se is not a ground to discard his evidence. The conduct of a witness needs to be examined in the context of facts and 1 Deep Chand & Ors. v. State of Haryana : (1969) 3 SCC 890 13 Acq. Appeal (DB) No. 29 of 2020 & Ors. circumstances of the case because it is almost impossible to read human mind and predict behavioral pattern of a person. Secondly, there is no set of natural reactions by a person and it cannot be said that in no circumstance a person would react in the manner as PW1 and PW3 have reacted. Without further elaboration, we say that the daylight murder of Ajit Nayak must have spread like a wild fire. Seen thus, the conduct of PW1 and PW3 was not unnatural. The omission in the police statement that he had gone to the house of Ajit Nayak in the afternoon is not a material contradiction in the evidence of PW1. He explained the reason for his visit to the house of Ajit Nayak that he had money due from Ajit Nayak for the construction of a boundary wall at Tumbaguttu. As the materials on record disclose, on 1st August 2013 the mother of Ajit Nayak had informed him that her son had gone towards Namkum. This is a pertinent issue that the aforesaid statements have been elicited by the defense in the cross-examination of PW1 wherein he offered a plausible explanation for going to Namkum market. During the trial, there was also an attempt by the defense to discredit PW2 with reference to his previous statements made before the police in which he had narrated a different story. PW2 made a statement before the police that Ajit Nayak had a love affair with the niece of Amar Thakur which was not liked by him and, for that reason, Amar Thakur and Birju Nayak were threatening to kill Ajit Nayak. 21. The testimony of a witness has to be considered as a whole and a conclusion as to the existence of a fact cannot be drawn by picking up some isolated portion from the testimony of a witness. Every omission in the testimony of a witness in the Court cannot be stretched to lay a foundation for doubting the witness. There may be reasons for such omission(s) which the witness may clarify if his previous statement is shown to him to remind him what he had stated before the police. The explanation to section 162 of the Code of Criminal Procedure provides that an omission to state a fact or circumstance may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs. This is clear from the explanation to section 162 that every omission shall not amount to contradiction. This is unambiguously clear from the use of expression 14 Acq. Appeal (DB) No. 29 of 2020 & Ors. “may” therein and the legislative intent in this regard seems to be based on good reasons. Therefore, this is a matter in the realm of appreciation of evidence and whether or not an omission, variation, or discrepancy in the evidence of a witness shall amount to contradiction is a question of fact. 22. Section 172 of the Code of Criminal Procedure provides the manner in which a case diary is maintained by the police. Sub-section (2) provides that any criminal Court may make use of the entries made in a police diary in aid of the inquiry or trial but such entries cannot be used as evidence by the Court. Therefore, the prosecution or the defense cannot invite the attention of the Court to the police statement of a witness which was not proved in the manner provided under section 145 of the Evidence Act. Section 145 of the Evidence Act applies to the witness who according to the defense has made two contradictory statements. It provides that a witness may be cross-examined as to his previous statements made in writing or reduced into writing without such writing being shown to him, or being proved. However, if the defense intends to cross-examine a witness intending to contradict him by the writing his attention must be drawn to that part of the statement which is intended to be used for the purpose of contradicting him. If the witness admits to having made such a statement or statements before the police there is no need to prove his police statement and then that shall be read while appreciating his testimony in the Court. But when the witness denies having made a part of the police statement, it becomes necessary to elicit from the investigating officer that the witness had in fact made such a statement before him and then only the effect of denial by the witness having made such a statement or statements can be considered by the Court. Therefore, a witness can be contradicted with reference to his own statement and not by the statement of any other witness. 23. Mr. A. K. Kashyap and Mr. Sanjiv Kumar, the learned senior counsels adopted the familiar defense line to demonstrate that the witnesses have an interest in implicating the accused or at any rate to create uncertainty and doubt about their complicity in the crime. To allay any doubt when the defense tries to create such apprehensions, the Courts keep in mind the fundamental rules of evidence and the maxim that the accused 15 Acq. Appeal (DB) No. 29 of 2020 & Ors. should be given the benefit of doubt. Keeping these factors in mind, the Courts take the greatest possible care before convicting an accused who is presumed to be innocent till the contrary is established. Lord Goddard, C.J.2, summarized how a criminal trial should proceed with a simple illustration: When explaining to the Jury what the prosecution has to establish if a Judge begins to use the word “reasonable doubt” and tries to explain what is reasonable doubt and what is not, he is much more likely to confuse the Jury when if he tells them in plain language; “it is the duty of the prosecution to satisfy you of the prisoner’s guilt”. 24. PW1 stated before the police that he stopped at a tea stall at the Block office to have tea and snacks. He further stated that a firing took place around 4:30 PM near Namkum hospital and saw Binod Nayak and his friends fleeing away on a motorcycle after firing at Ajit Nayak. The presence of PW1 at a tea stall near the Block office at around 4:30 PM on 1st August 2013 has been challenged by the defense. However, his statement in the Court that he found Ajit Nayak talking to Gurucharan Nayak, Lalu Nayak and Binod Nayak near the hospital gate is not challenged in the cross-examination. Furthermore, his testimony in the Court is in sync with the following statements made before the police which are elicited from the investigating officer and thus are proven as fact: 15- xokg ,slk ugha cksyk fd ml fnu CykWd rFkk vLirky [kqyk gqvk Fkk rFkk yksxksa dk vkuk tkuk gks jgk FkkA ij xokg esjs le{k ,slk dgk Fkk fd djhc 4 cts CykWd ds lkeus pk; nqdku esa pk; ukLrk djus :ds Fks djhc 4-30 cts ds vklikl ukedkse vLirky ds ikl xksyh pyh rks nkSM+dj ogkW ns[ks fd djeVksyh VqECkkxqVq fouksn uk;d vkSj muds nksLr vthr uk;d dks xksyh ekjdj eksVj lkbZfdy ls Hkkx jgk FkkA fouksn uk;d tehu nyky gS rFkk budks ge cgqr fnuksa ls igpkurs gS vkxs cryk, fd fouksn uk;d] ykyq uk;d] xq:pj.k uk;d lc feydj bl "kM~;a= ds rgr vthr uk;d dh gR;k dj fn;kA English Translation: 15. The witness did not state before me that the Block and hospital were open on that day and the people were moving across the place. However, the witness did state before me that he stopped by a tea stall in front of the Block around 4:00 PM for tea and snacks and, that, around 4:30 PM a firing took place around Namkum hospital whereupon he ran there and saw that Binod Nayak of Karamtoli-Tumbaguttu and his friend were fleeing away on a motorcycle after firing at Ajit Nayak. Binod Nayak is a land broker and he has known him for a long time. (The witness further stated) that Binod Nayak, Lalu Nayak, and Gurucharan Nayak committed murder of Ajit Nayak under a conspiracy by them. 25. There are minor omissions in the testimony of PW1 and PW2 which appear to be normal. On a scrutiny of the testimony of PW1 and PW2 and their statements made before the investigating officer which are proved 2 Rox v. Kritz : 1950 (1) KB 82 at 90 16 Acq. Appeal (DB) No. 29 of 2020 & Ors. in the Court, no such contradiction is demonstrable in their evidence that shakes the foundation of the prosecution case. As the police statement of PW1 reveals, his statement in the Court seems to be an elaboration of the facts stated by him before the police. There is nothing unnatural in the statement of PW1 that on hearing the sound of firing he ran towards the Block office. He clearly informed the police that Ajit Nayak was murdered by Binod Nayak in furtherance of a conspiracy with Lalu Nayak and Gurucharan Nayak who according to him was a land broker. There is no discrepancy in his statement before the police and his evidence in the Court that he saw Binod Nayak, Gurucharan Nayak, and Lalu Nayak fleeing away on a motorcycle. Now his presence at the tea stall near the Block office cannot be challenged on the ground that he made a statement before the police that he was going to fetch mutton from Namkum market and a mutton shop is at a distance of ¾ kilometer from the tea stall near the Block office. The delay in recording his statement by the investigating officer is also not material inasmuch as he did not narrate the incident in an exaggerated manner before him. Had he been untruthful, PW1 could have made an elaborate statements before the investigating officer incorporating false statements. 26. PW2 is also a truthful and trustworthy witness. His statement made before the police that Birju Nayak and Amar Thakur grabbed the land and Ajit Nayak had a love affair with the niece of Amar Thakur are used by the defense to contradict the prosecution story that the land dispute was between Ajay Nayak and Binod Nayak, and to put forth a defense story that Amar Thakur might have been involved in the occurrence as he had a grudge against Ajit Nayak. His presence at the Namkum Block is challenged on the ground that he had no reason to be there around 04:30 PM on 1st August 2013. In its effort to bring out the contradiction in the testimony of PW2, the defense elicited from the investigating officer that PW2 did not make a statement before him that Binod Nayak shot Ajit Bhaiya (Ajit Nayak) who ran towards the health center, and PW2 himself also ran away towards Sadabahar Chowk and heard another sound of firing. The investigating officer further deposed in the Court that PW2 did not make a statement before him that Ajit Nayak had called him at the Block office or, 17 Acq. Appeal (DB) No. 29 of 2020 & Ors. that after dropping PW5 at home he came to the Block office at Namkum and saw Ajit Nayak in the company of Binod Nayak, Gurucharan Nayak and Lalu Nayak. However, PW2 was not confronted in the Court with his previous statement that Binod Nayak made repeated calls to Ajit Nayak who left home in his Zen and this is in tune with his testimony in the Court. PW2 made a statement also before the police that Binod Nayak, Gurucharan Nayak, and Ram Nayak proceeded for the Block office on a motorcycle and this is also elicited from the investigating officer that he had expressed his doubt that the accused committed the murder of Ajit Nayak in furtherance of criminal conspiracy. 27. The relevant portions of the cross-examination of PW2 which was recorded on 07th July 2014 are extracted as under: ;kn ugha gS fd ?kVuk ds ckjs esa vfu:) dks crk;k Fkk vFkok ughaA iqfyl c;ku esa dgk Fkk fd ?kVuk ds le; esa ?kVukLFky ds ikl igq¡p x;k FkkA iqfyl c;ku esa crk;k Fkk fd vfHk;qDrksa dk vthr ds lkFk tehu dk fookn iwoZ 16- ,sl dguk xyr gS fd mDr ckr iqfyl c;ku esa ugha dgk FkkA 17- 18- tc nqckjk ?kVukLFky ij x;k rks ogk¡ dkQh ifCyd FkhA /;ku ugh fn;k fd ogk¡ gekjs xk¡o dk dkSu dkSu FkkA ;kn ugha gS fd ml le; vfu:) ls ckr gqbZ vFkok ughaA …Lor% dgk‰ ml le; esjk fnekx dke ugha dj jgk FkkA 19- iqfyl dks c;ku esa dgk Fkk fd VsUV gkml esa vthr us eq>ls dgk Fkk fd eSa vfer dks ?kj NksM+dj okil ukedqe Cykd ij vkus dks dgk FkkA ;kn ugha gS fd iqfyl dks ;g crk;k Fkk vFkok ugha fd vthr us eq>s ehfVax esa cqyk;k FkkA 20- vthr ds dkjksckj ls eq>s dksbZ eryc ugha Fkk djhc 10&15 feuV esa iqfyl ?kVukLFky ij igq¡phA lnkcgkj pkSd fLFkr nqdku ij gh ns[kk fd iqfyl tk jgh gS rks eSa Hkh ihNs ls igq¡p x;kA iqfyl m/kj ls gh vkbZA 21- tc eSa nqckjk ?kVukLFky ij igq¡pk rks vthr dh yk’k ogha iM+h FkhA LokLF; dsUnz ds xsV ds ikl iM+h FkhA Cykd ds LokLF; dsUnz xsV ds lkeus pk;&idkSM+h dh nqdku gSA 22- ls py jgk FkkA ;kn ugh gS fd iqfyl c;ku esa dgk Fkk vFkok ugha & (cid:222)vthr uk;d dh tehu 23- tcjtLrh fcjtw uk;d] vej Bkdqj iwjk iSlk fn, fcuk fuca/ku djok fy, gS rFkk tehu esa fookn [kM+k djds tehu esa viuk dCtk Hkh dj fy, gSA(cid:223) 24- ;kn ugha gS fd iqfyl c;ku esa dgk Fkk & (cid:222)vej Bkdqj dh Hkrhth ls vthr uk;d dk izse izlax py jgk Fkk ftldks vej Bkdqj ns[kuk ugha pkgrs Fks vkSj cjkcj vej Bkdqj ,oa fcjtw uk;d] vthr uk;d dks tku ls ekjus ,oa ns[k ysus dh /kedh nsrs FksA(cid:223) 25- ,oa feL=h] ftldk uke ugha tkurk gw¡] ogk¡ dke dj jgs FksA iUuk ydM+k dks eSa tkurk gw¡a 26- 27- ?kVuk ds ckn] tc iqfyl iqu% esjk c;ku yh ml le; eSa ekufld :Ik ls iw.kZ LoLFk FkkA ;kn ugha gS fd iqfyl ml ntZ c;ku ij esjk nLr[kr djkbZ Fkh vFkok ugha \ English Translation: I made a statement before the police that at the time of the incident 16. I had reached the place of occurrence. This is not correct to say that I did not make the aforementioned statement before the police. 17. occurrence. 18. When I went to the place of occurrence the second time there I found a large number of public. At that time, I did not focused attention to see who among them were my co-villagers. I do not recollect whether I had spoken to Anirudh at that time. (The witness states on his own) that, at that time my mind was not working. 19. I made a statement before the police that Ajit had asked me at the tent house to take Amit home and then come to Namkum Block. I do not recollect whether or not I said to the police that Ajit had called me in the ?kVuk okys fnu ppZ esa eSa] vthr uk;d] vfu:) uk;d] fonsfl;k ueldkj] ’kadj I cannot recollect whether or not I had informed Anirudh about the 18 Acq. Appeal (DB) No. 29 of 2020 & Ors. I made a statement before the police that the accused persons had a meeting. 20. I have no connection with the business of Ajit. The police arrived at the place of occurrence within 10-15 minutes. From a shop at Sadabahar chowk when I saw the police going to the place of occurrence I had also gone there. The police party was passing through the said place. 21. When I came back again to the place of occurrence I found the dead body of Ajit which was lying near the gate of health center. There is a tea and snacks shop in front of the gate of the health center of the Block. 22. continuing land dispute with Ajit since before. 23. I do not recollect whether or not I made a statement before the police that: “Birju Nayak and Amar Nayak got the land belonging to Ajit Nayak forcibly registered without paying the full consideration and they had captured the land after creating a land dispute”. 24. I do not recollect whether or not I made a statement before the police that: “Ajit Nayak had a love affair with the niece of Amar Thakur and that was not liked by Amar Thakur and, that, Amar Thakur and Vijay Nayak were threatening Ajit Nayak and to kill him”. 25. I was at the Church on the day of the occurrence. There was Ajit Nayak, Anirudh Nayak, Videsia Namaskar, Shankar and Mistry who were working along with me and whose name I know. 26. 27. After the occurrence when the police took my statement again at that time I was fully mentally healthy. I do not recollect whether police took my signature over my statement. I know Panna Lakra. 28. The defense has undoubtedly proved through the investigating officer that a part of the deposition of PW1 and PW2 does not form part of their police statements. However, it is well remembered that when the witnesses are contradicted by their previous statements in the manner provided under section 145 of the Evidence Act then their previous statements which were put to them shall be considered along with the evidence in the Court to assess the worth of their evidence and to determine their veracity.3 The so-called improvements made by PW2 when he deposed in the Court shall not be the grounds to discard his evidence in toto. The defense plea that PW1 and PW2 are not reliable witnesses because they have made substantial improvements in the Court runs contrary to the plea set up on the ground of delay in recording their statement by the police. Had these witnesses intended to make improvements in the prosecution case they would have made such elaborations before the police. Whereas, the police statements of PW1 and PW2 do not contain any exaggeration. On the contrary, the defense seeks to build a defense story on the basis of the statements made by PW2 before the police that Ajit Nayak was being 3 Major Som Nath v. Union of India : (1971) 2 SCC 387 19 Acq. Appeal (DB) No. 29 of 2020 & Ors. threatened by Amar Thakur and Birju Nayak. From the evidence of PW2, this is proved that there was a land dispute between Binod Nayak and Ajit Nayak and, as it is clear, that the initial doubt about the involvement of Amar Thakur was not found correct. 29. Sometimes it may seem that the witnesses are lying or they are not certain but a scientific or mathematical exactitude in the testimony of the witnesses is also not possible. The prosecution witnesses who are not closely related to the deceased cannot be labeled as interested witnesses. They are independent witnesses who had no motive to implicate the accused or depose falsely in the Court. The very fact that PW1 is a mason and PW2, PW3 and PW4 are laborers who were working together with the deceased sometime back in the past is far from being a reason for doubting their testimony. They are unsophisticated witnesses who are unrelated to the deceased and cannot be labeled as untruthful on account of the delay in their examination by the investigating officer. As held by the Hon’ble Supreme Court4 the same standard of examination as of a sophisticated urban witness is not applied while examining a rural witness. 30. A set of four witnesses i.e., PW12, PW14, PW15 and PW17 who are the co-villagers did not support the case of the prosecution and have been declared hostile. This is really not uncommon in criminal trials in India where on account of pressure from relatives or neighbors or for some other reason a witness comes to the Court and resiles from his previous statement made before the police. PW4 also seems to be prey to extraneous forces. This situation has been recently taken note of by the Hon’ble Supreme Court in “Jayantilal Verma”5 wherein the Hon’ble Supreme Court has observed as under: “20. It is no doubt true that a large number of witnesses turned hostile and the trial court was also not happy with the manner of prosecution conducted in this case. But that is not an unusual event in the long drawn out trials in our country and in the absence of any witness protection regime of substance, one has to examine whatever is the evidence which is capable of being considered, and then come to a finding whether it would suffice to convict the accused.” 31. This is quite a significant fact that PW4 made a statement before the Magistrate that Binod Nayak, Gurucharan Nayak, and Lalu