Where Witness Version Forms Basis Of FIR, Prosecution Case Can Be Tested Against It As Relevant Fact U/S 11 Evidence Act: Patna High Court

The Patna High Court has held that where the version of a witness forms the basis of the FIR, the entire prosecution case can be tested with reference to the FIR, which then assumes relevance under Section 11 of the Evidence Act.A Division Bench of Justice Bibek Chaudhuri and Justice Ansul was hearing two connected criminal appeals [Criminal Appeal (DB) No. 1311 of 2019 and Criminal Appeal (DB) No. 1122 of 2019] arising out of Barauni P.S. Case No. 47 of 2012, challenging the judgment of conviction and order of sentence dated 23.08.2019 and 29.08.2019 passed by the Additional Sessions Judge-XIV, Begusarai. The appellants had been convicted under Sections 364/34 and 302/34 IPC and sentenced to life imprisonment, along with conviction under Section 120B IPC.According to the prosecution, the FIR was lodged on the basis of the fardbeyan of the informant (PW-3), who stated that on 17.02.2012 at about 8:30 PM, while he and his brother were at their shop, certain co-villagers along with others came and asked his brother to accompany them. On insistence, his brother went with them. When the informant followed, he allegedly saw the accused persons assaulting his brother near a well and thereafter forcibly taking him away on a motorcycle. Despite attempts to contact the police and searches conducted during the night, the deceased could not be traced. The prosecution case was that the accused persons killed the deceased over a monetary dispute of ₹5 lakh.Upon trial, the court convicted the appellants. Before the High Court, the case involved issues of last seen, circumstantial evidence, contradictions in witness testimony, and the evidentiary value of the FIR. The Court reiterated that an FIR is ordinarily not a substantive piece of evidence and is used only for corroboration or contradiction. However, referring to the decision in Ram Kumar Pandey v. State of M.P., it noted an exception, and held:It is true that the FIR is not a substantive piece of evidence and can be used only to corroborate and contradict the maker of it but there is one exception to this situation in terms of judgment rendered in Ram Kumar Pandey vs. State of M.P reported as (1975) 3 SCC 815. The same shows that if the version of a witness has gone into making of the FIR then the entire prosecution case can be tested with reference to the FIR as the FIR then becomes a relevant fact under Section 11 of the Evidence Act.Applying this principle, the Court examined the FIR in light of the evidence on record. It found that the prosecution witnesses did not support each other regarding their presence at the place of occurrence, and their depositions were contradictory. The Court observed that the witnesses did not attest to each other's presence, giving rise to a bona fide doubt regarding whether any of them were present at the place of occurrence.The Court further noted that although it was claimed that the police authorities were informed during the night and searches were conducted, no contemporaneous records such as station diary entries or call detail records were produced during investigation.Significantly, the Court found inconsistencies relating to the FIR. It noted that although the informant claimed to have knowledge of the accused persons and the occurrence, there was no reference to the names of the accused in the inquest report, despite the same witnesses being present.The Court also noted discrepancies regarding the timing of the FIR, observing that while the informant claimed it was handed over at a particular time, the records suggested otherwise. It held:“…there must have been an initial version… but that version seems to have been given a go by and a fresh FIR seems to have been lodged after much afterthought.”In view of these inconsistencies, the Court held that the prosecution had failed to establish the “last seen” circumstance and had not proved a complete chain of circumstances pointing unerringly towards the guilt of the accused.Accordingly, holding that the prosecution failed to prove its case beyond reasonable doubt, the High Court set aside the conviction and sentence and allowed the appeals.Case Title: Rajeev Singh @ Rajeev Kumar v. State of Bihar.Case No.: Criminal Appeal (DB) No. 1311 of 2019 (with connected appeal).Appearance: Senior Advocate Mr. Ramakant Sharma, assisted by Mr. Rahul Singh, Mr. Adarsh Parashar, Mr. Ajay Kumar Thakur, Mr. Ritwik Thakur, and Mrs. Vaishnavi Singh appeared for the Appellants. Mr. Sujit Kumar Singh appeared for the State.Click Here To Read/Download Order

Where Witness Version Forms Basis Of FIR, Prosecution Case Can Be Tested Against It As Relevant Fact U/S 11 Evidence Act: Patna High Court

Rushil Batra

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