RAMA DEVIversusTHE STATE OF BIHAR AND OTHERS

                   [2024] 10 S.C.R. 1313 : 2024 INSC 755

                                 Rama Devi
                                      v.
                        The State of Bihar and Others
                   (Criminal Appeal No(s). 2623-2631 of 2014)
                                   03 October 2024
   [Sanjiv Khanna,* Sanjay Kumar and R. Mahadevan, JJ.]

                               Issue for Consideration
          Whether the High Court was justified in reversing the judgment
          of the trial court and acquitting the respondents of the charges
          punishable under Sections 302, 307, 333, 355 and 379, all read
          with Section 34 of the Penal Code, 1860, and Section 27 of the
          Arms Act, 1959.

                                      Headnotes†
          Penal Code, 1860 – ss.302, 307, read with s.34 – Murder of
          an MLA and his bodyguard – Respondents convicted by Trial
          Court – Conviction reversed by High Court – Challenge to:
          Held: In view of the evidence and materials on record, charges
          against A-4 and A-8 under Section 302 read with Section 34
          and Section 307 r/w Section 34 proved and established beyond
          reasonable doubt – Conviction and sentence awarded by the trial
          court affirmed and restored – However, benefit of doubt given
          to other accused persons as there is no direct ocular evidence
          implicating them and the charge of conspiracy is not substantiated,
          their acquittal upheld – Impugned judgment set aside. [Paras 42-45]
          FIR – Delay in forwarding the copy to magistrate – When not
          fatal:
          Held: The incident took place in the night of 13.06.1998 –
          14.06.1998 being a Sunday, the FIR was forwarded to the
          jurisdictional magistrate on 15.06.1998 – Thus, the delay in
          forwarding the copy of the FIR to the jurisdictional magistrate
          was explained – Mere delay by itself is not sufficient to discard
          and disbelieve the case of the prosecution unless the accused
          demonstrate how this delay has prejudiced their case – If the
          investigation starts in right earnest and there is sufficient material
          on record to show that the accused were named and pinpointed,

*Author
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    the prosecution case can be accepted when evidence implicates
    the accused – The requirement to dispatch and serve a copy
    of the FIR to the jurisdictional magistrate is an external check
    against ante dating or ante timing of the FIR to ensure that there
    is no manipulation or interpolation in the FIR – Further, if the
    court finds the witnesses to be truthful and credible, the lack
    of a cogent explanation for the delay may not be regarded as
    detrimental. [Para 30]
    Evidence – Non-recovery of vehicles and weapons used in
    the offence – Effect on credibility of eyewitnesses, if any:
    Held: The ocular version of the witnesses should not be
    disregarded solely because the weapon used in the crime and
    the vehicles allegedly used by the accused were not located or
    seized by the police – On facts, the failure of the police to recover
    the vehicles and the weapons is not sufficient to undermine
    the credibility of the eyewitness accounts or the corroborative
    evidence regarding the cause of the homicidal deaths of both
    the deceased. [Para 27]
    Evidence – Witness with criminal background – Courts to
    exercise caution but, evidence cannot be discarded merely
    on the ground of criminal background:
    Held: Criminal background of a witness necessitates that the
    courts approach their evidence with caution – The testimony of a
    witness with a chequered past cannot be dismissed as untruthful
    or uncreditworthy without considering the surrounding facts and
    circumstances of the case, including their presence at the scene
    of the offence – In cases involving conflicts between rival gangs or
    groups, the testimony of members from either side is admissible and
    relevant – If the court is convinced of the veracity and truthfulness
    of such testimony, it may be considered – Courts assess the
    broader context to determine if there is sufficient corroboration,
    as long as there are no valid reasons to discredit the evidence –
    The crucial test is whether the witness is truly an eyewitness and
    whether their testimony is credible – If their presence at the scene
    is established beyond doubt, their account of the incident can be
    relied upon – Such evidence cannot be discarded merely on the
    grounds of criminal background. [Para 20]
    Evidence – Presence of eyewitness (PW-1) at the place
    of occurrence (hospital) proven, however there was
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              Rama Devi v. The State of Bihar and Others


     non- compliance with hospital and prison protocols – Reliance
     on testimony of PW-1, if proper – MLA and his bodyguard were
     murdered in the hospital where the former was admitted for
     treatment while in judicial custody – PW-1 did not seek prior
     permission from the court or jail authorities nor did he make
     any entry in the hospital register while visiting the deceased
     MLA in the hospital:
     Held: Fardbeyan (Exhibit-50) and the ocular evidence of PW-24
     and PW25, establish the presence of PW-1 and other visitors
     in the hospital – Once the presence of a witness at the place
     of occurrence is proven, their testimony, if credible and truthful,
     should not be dismissed solely based on non-compliance with
     hospital and prison protocols – Further, the reasoning given by
     the High Court to disregard and doubt the eyewitness account of
     PW-1, on the premise that he ought to have been the informant
     because he is the brother-in-law of the deceased MLA and was
     present at the hospital at the time of occurrence, is conjectural and
     unfounded – Any person can be an informant of a case, and the
     police may also register a case on their own – The rationale of the
     High Court for dismissing the testimony of PW-1 is fundamentally
     flawed. [Para 15]
     Evidence – Testimony of hostile witness – Maxims – falsus
     in uno, falsus in omnibus – Inapplicability:
     Held: Maxim falsus in uno, falsus in omnibus is not a sound rule
     to apply in the conditions of this country – This maxim does not
     occupy the status of rule of law – It is merely a rule of caution
     which involves the question of the weight of evidence that a court
     may apply in the given set of circumstances – Evidence of a
     hostile witness is not to be completely rejected, so as to exclude
     versions that support the prosecution – Rather, the testimony of
     the hostile witness is to be subjected to close scrutiny, enabling
     the court to separate truth from falsehood, exaggerations and
     improvements – Only reliable evidence should be taken into
     consideration – The court is not denuded of its power to make
     an appropriate assessment – The entire testimony of a hostile
     witness is discarded only when the judge, as a matter of prudence,
     finds the witness wholly discredited, warranting the exclusion of
     the evidence in toto – The creditworthy portions of the testimony
     should be considered for the purpose of evidence in the case.
     [Paras 16, 22]
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                             Case Law Cited
    Deep Chand and Others v. State of Haryana (1969) 3 SCC 890;
    State of Rajasthan v. Daud Khan (2016) 2 SCC 607; Ponnam
    Chandraiah v. State of Andhra Pradesh [2008] 11 SCR 561 : (2008)
    11 SCC 640; State of U.P. v. Farid Khan and Others (2005) 9 SCC
    103; C. Muniappan and Others v. State of Tamil Nadu [2010] 10
    SCR 262 : (2010) 9 SCC 567; Yogesh Singh v. Mahabeer Singh
    and Others [2016] 7 SCR 713 : (2017) 11 SCC 195; State of
    Rajasthan v. Arjun Singh and Others [2011] 10 SCR 823 : (2011)
    9 SCC 115 – relied on.

                               List of Acts
    Penal Code, 1860; Code of Criminal Procedure, 1973; Arms Act,
    1959.

                            List of Keywords
    Murder; Member of the Legislative Assembly; MLA; Bodyguard;
    Political leader; Benefit of doubt; Acquittal; Conspiracy not
    proved/ substantiated; Motive; Charges proved beyond reasonable
    doubt; Hospital; Prison protocols; Hospital register; Visitors; Delay
    in forwarding FIR to magistrate; Not fatal; Ante dating; ante timing;
    Manipulation or interpolation in FIR; Superficial issues; Memory
    test; Witness with criminal background; Non-recovery of vehicles,
    weapons used in the offence; Ocular evidence; Informant; Hostile
    witness; Maxims; falsus in uno, falsus in omnibus; Fardbeyan;
    Eyewitness; Efflux of time.

                           Case Arising From
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
    2623-2631 of 2014
    From the Judgment and Order dated 24.07.2014 of the High Court
    of Patna in CRLAP No. 778, 898, 825, 859, 865, 899, 871, 874 and
    878 of 2009
    With
    Criminal Appeal Nos. 2632-2640 of 2014

                        Appearances for Parties
    Tushar Mehta, Solicitor General, K M Nataraj, A.S.G., Siddharth
    Aggarwal, Ms. Sonia Mathur, Mrs. Ruchi Kohli, Mrs. Archana
[2024] 10 S.C.R.                                                                            1317

                     Rama Devi v. The State of Bihar and Others


       Pathak Dave, Surendra Singh, Sr. Advs., Arvind Kumar Sharma,
       Aditya Singia, Vishwajeet Bhati, Harsh Yadav, Ritwik Saha, Sharad
       Kumar Puri, Ms. Parul Sharma, Mrs. Pinki Aggarwal, Mrs. Priya
       Puri, Mukesh Kumar Maroria, Ms. Sairica S Raju, Rajesh Kumar
       Singh, Rajan Kumar Chourasia, P V Yogeswaran, Ms. Ronika Tater,
       Ms. Surbhi Bhardwaj, Ms. Dipanshu Krishnan, Ms. Madhumita
       Kesavan, Nikhil Chandra Jaiswal, Tripurari Ray, D. S. Parmar,
       Ms. Sujeeta Srivastava, Abhishek Priyadarshi, Ms. Mrinal Elker
       Mazumdar, Saurabh Singh, Anirudh Ray, Ashutosh Ghade, Sunil
       Kumar, Nimit Bhimjiyani, Rahul Raman, Ms. Sneha Balapure,
       Raj Kamal, Aseem Atwal, Kartavya Batra, Anurag Chandra, Ms.
       Nupur Kaushik, Ms. Stuti, Ms. Aprajita Tyagi, Ms. Muskan Sidana,
       Harneet Singh, Ms. Prerna Singh, Shantanu Sagar, Raj Kumar,
       Prabhat Ranjan Raj, Anil Kumar, Gunjesh Ranjan, Mrs. Divya
       Mishra, Shashank Kumar Saurav, Sanjay Jain, Manu Shanker
       Mishra, Laxmi Narayan Sharma, Vivekanand Singh, Nishant Kumar,
       Nithyananda Murthy P, Ms. Bhanu Prabha, Vaibha Kumar, Advs.
       for the appearing parties.

                         Judgment / Order of the Supreme Court
                                          Judgment
       Sanjiv Khanna, J.
       This judgment decides two sets of appeals, one by the State of
       Bihar, through the Central Bureau of Investigation,1 and the other
       by Rama Devi, wife of one of the deceased – Brij Bihari Prasad, a
       member of the Bihar Legislative Assembly. The second deceased –
       Lakshmeshwar Sahu – was the bodyguard of Brij Bihari Prasad and
       a member of the Bihar police.
2.     The impugned judgment of the High Court of Judicature at Patna
       dated 24.07.2014 reverses the judgment of the trial court and acquits
       the nine accused2 of the charges punishable under Sections 302,
       307, 333, 355 and 379, all read with Section 34 of the Indian Penal
       Code, 1860,3 and Section 27 of the Arms Act, 1959.4


1    For short, “CBI.”
2    Suraj Bhan Singh @ Suraj Singh @ Suraj, Mukesh Singh, Lallan Singh, Mantu Tiwari, Captain Sunil
     Singh (since deceased), Ram Niranjan Chaudhary, Shashi Kumar Rai (since deceased), Vijay Kumar
     Shukla @ Munna Shukla, Rajan Tiwari.
3    For short, “IPC”.
4    For short, “1959 Act”.
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3.     The incident in question took place on 13.06.1998 at around 08:15
       p.m. at the Indira Gandhi Institute of Medical Science, Patna.5 On
       the basis of the fardbeyan (Exhibit 50) of Amarendra Kumar Sinha
       (PW-10) recorded by S.S.P. Yadav, Inspector-cum-Officer-in-Charge,
       Shastri Nagar Police Station,6 on 13.06.1998 at 9:00 p.m., First
       Information Report7 No. 336/1998, (Exhibit 51 and 51/1) was lodged
       under Sections 302, 307, 34, 120B, 379 of the IPC and Section 27
       of the 1959 Act at 12:15 a.m. on 14.06.1998.
       The Prosecution Case
4.     The prosecution case is as follows:
       (i)     On 13.06.1998 at around 6:30 p.m., Brij Bihari Prasad, who
               was in judicial custody and admitted for treatment at IGIMS
               hospital, was taking a walk outside the wardroom along with –
               Amarendra Kumar Sinha (PW-10), Arbind Singh (PW-13), Ram
               Nandan Singh (PW-12), Mahant Ashwani Das (PW-25), Paras
               Nath Chaudhury (PW-1), Onkar Singh and 2-4 others.
       (ii)    Brij Bihari Prasad was also accompanied by his bodyguard –
               Lakshmeshwar Sahu, who was armed with a carbine, and
               other sepoys.
       (iii) Two vehicles, a Sumo car, with registration number, BR-1P-1818,
             followed by an Ambassador car, registration number of which
             could not be ascertained, entered the IGIMS hospital from the
             southern main gate, Bailey Road side and stopped near Brij
             Bihari Prasad.
       (iv) Occupants of the said cars, namely – Mantu Tiwari (A-4), Vijay
            Kumar Shukla @ Munna Shukla (A-8), Rajan Tiwari (A-9), and
            Shri Prakash Shukla @ Shiv Prakash Shukla (since deceased),
            Satish Pandey (since deceased) and Bhupendra Nath Dubey
            (since deceased) came out of the vehicles.
       (v)     Mantu Tiwari(A-4) was armed with a sten gun and all others were
               armed with pistols. Bhupendra Nath Dubey (since deceased)


5    For short, “IGIMS Hospital”.
6    S.S.P. Yadav subsequently expired and did not depose.
7    For short, “FIR”.
[2024] 10 S.C.R.                                                                                  1319

                    Rama Devi v. The State of Bihar and Others


              abusively exhorted others to shoot at Brij Bihari Prasad while
              he himself also fired at Brij Bihari Prasad with his pistol.
      (vi) Mantu Tiwari (A-4) and Shri Prakash Shukla @ Shiv Prakash
           Shukla (since deceased) fired at Brij Bihari Prasad from their
           sten gun and pistol respectively.
      (vii) Satish Pandey, Vijay Kumar Shukla @ Munna Shukla (A-8) and
            Rajan Tiwari (A-9) fired at Lakshmeshwar Sahu.
      (viii) Both Brij Bihari Prasad and Lakshmeshwar Sahu collapsed
             and died.
      (ix) Rabindra Bhagat (PW-14) suffered a gunshot wound in the
           cross-fire.
5.    The post-mortem reports dated 14.06.1998 (Exhibits 9 & 9/1), proved
      by Dr. Arvind Kumar Singh (PW-7), establish the homicidal death of
      Brij Bihari Prasad and Lakshmeshwar Sahu due to multiple gunshot
      injuries resulting in haemorrhage and shock. The multiple gunshot
      wound entries are consistent with successive firing from firearms/
      pistol. To this extent the prosecution version is unchallenged.
6.    As per the prosecution case, there were eleven eye-witnesses,
      namely, Paras Nath Chaudhury (PW-1), Amarendra Kumar Sinha
      (PW-10), Amod Kumar (PW-11), Ram Nandan Singh (PW-12), Arbind
      Singh (PW-13), Rabindra Bhagat (PW-14), Kamakhya Narain Singh
      (PW-15), Bhola Prasad Premi (PW-16), Mahanth Ashwani Das
      (PW-25), Shashi Bhushan Singh (PW-42) and Binod Kumar Singh
      (PW-19). However, Paras Nath Chaudhury (PW-1), Mahanth Ashwani
      Das (PW-25), Shashi Bhushan Singh (PW-42), and to some extent,
      Amarendra Kumar Sinha (PW-10) had supported the prosecution
      case. Others were hostile or partly hostile as they did not support
      the prosecution case or did not name/identify the perpetrators.
7.    Primarily relying on the testimonies of Paras Nath Chaudhury
      (PW-1), Mahant Ashwani Das (PW-25), Shashi Bhushan Singh
      (PW-42) and Amarendra Kumar Sinha (PW-10), the trial court
      convicted the respondents Suraj Bhan Singh (A-1), Mukesh Singh
      (A-2), Lallan Singh (A-3), Mantu Tiwari (A-4), Captain Sunil Singh
      (A-5) (since deceased),8 Ram Niranjan Chaudhary (A-6), Vijay Kumar


8    It is an accepted and admitted position that Captain Sunil Singh (A-5) has passed away. The appeal qua
     him shall stand abated.
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      Shukla @ Munna Shukla (A-8), Rajan Tiwari (A-9) and Shashi Kumar
      Rai (A-7) (since deceased).9
      Reasoning of the High Court
8.    The judgment of the High Court refers to the evidence in detail, with
      the acquittal of the respondents grounded in the following findings:
      (i)     FIR No. 336/1998, marked Exhibit 51, is ante-timed.
      (ii)    Shashi Bhushan Singh (PW-42) is not an eye-witness, but
              rather a planted witness, as his name was not mentioned in
              the fardbeyan (Exhibit 50). His antecedents are questionable.
      (iii) The testimony of Paras Nath Chaudhury (PW-1) implicating the
            respondents-accused is unreliable because:
              (a)     he is Brij Bihari Prasad’s brother-in-law;
              (b)     he should have been the informant but was not, which
                      raises doubts about his presence at the IGIMS hospital;
              (c)     he contradicted the prosecution’s case by accepting that
                      Rajan Tiwari (A-9), whom he knew beforehand, was not
                      present during the incident. However, in his statement
                      under Section 161 of the Code of Criminal Procedure,
                      1973,10 he claimed that Rajan Tiwari (A-9) was one of the
                      assailants of Lakshmeshwar Sahu; and
              (d)     he deposed under the pressure of his sister, Rama Devi
                      (PW-24), who was present in the court during the recording
                      of his evidence on all (three) days.
      (iv) The deposition of Mahanth Ashwani Das (PW-25) is unreliable
           on the following grounds:
              (a)     he is a convict in a murder case registered in the year 1979;
              (b)     he did not surrender after the dismissal of his appeal by the
                      High Court and was accordingly declared an absconder;
              (c)     he was arrested on 04.05.2006 while deposing before the
                      trial court in the present case;



9    The appeal qua Shashi Kumari Rai (A-7) stood abated on account of his demise vide order dated
     28.02.2020.
10   For short, “CrPC”.
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                        Rama Devi v. The State of Bihar and Others


               (d)       he was under the patronage and protection of Brij Bihari
                         Prasad and his wife, Rama Devi (PW-24);
               (e)       there is a contradiction between the versions of Shashi
                         Bhushan Singh (PW-42) and Mahanth Ashwani Das
                         (PW-25) regarding their presence in the hospital room of
                         Brij Bihari Prasad at IGIMS hospital. While Shashi Bhushan
                         Singh (PW-42) claims that Mahanth Ashwani Das (PW-25)
                         was in the hospital room when he arrived there, Mahanth
                         Ashwani Das (PW-25) states that Shashi Bhushan Singh
                         (PW-42) was already present in the hospital room of Brij
                         Bihari Prasad when he (Mahanth Ashwani Das) reached
                         the hospital.
               (f)       there is a discrepancy as to when the police recorded
                         the statement of Mahanth Ashwani Das (PW-25) and his
                         version of events on 13.06.1998 and 14.06.1998. Mahanth
                         Ashwani Das (PW-25) claims that after the occurrence
                         he and Rama Devi (PW-24) had proceeded to the official
                         residence of Brij Bihari Prasad from IGIMS hospital at
                         about 9:00-9:30 p.m. Mahanth Ashwani Das (PW-25) had
                         left for Muzzaffarpur Math in the night at about 12:30 a.m.
                         on 14.06.1998. Thus, the police could not have recorded
                         the statement of Mahanth Ashwani Das (PW-25) in the
                         IGIMS hospital at 12:30 a.m. on 14.06.1998. Further, if
                         Mahanth Ashwani Das (PW-25) was present at the time
                         of occurrence, as deposed by him, police should have
                         recorded his statement before he left the IGIMS hospital
                         campus around 9:30 p.m.
       (v)     Shashi Bhushan Singh (PW-42) was not an eye-witness, as his
               presence is not mentioned in the fardbeyan (Exhibit 50) or the
               FIR (Exhibits 51 and 51/1). His statement under Section 161 of
               the CrPC was recorded belatedly, five days after the incident.
       (vi) Rama Devi (PW-24) is not an eye-witness, as she had left the
            place of occurrence prior to the incident. The police did not
            produce Rama Devi’s statement under Section 161 of the CrPC
            recorded on 13.06.1998 by the second investigating officer11 –


11   For short, “IO”.
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          Shashi Bhushan Sharma (PW-54), who had taken charge of
          the investigation in compliance with the instructions of Senior
          Superintendent of Police, Patna. The version of Rama Devi
          (PW-24) that she learnt names and details of the assailants from
          the visitors she had met earlier in the day in the hospital room
          is not mentioned in the Section 161 CrPC statements dated
          18.10.1999 and 28.03.2001 given by her to Rai Singh Khatri
          (PW-62), IO of CBI. This is corroborated by the statement of Rai
          Singh Khatri (PW-62), IO of CBI, who testified that Rama Devi
          (PW-24) did not name the assailants. Since the initial statement
          of Rama Devi (PW-24) under Section 161 CrPC recorded by
          Shashi Bhushan Sharma (PW-54) was not on record and she
          later failed to disclose the name of the assailants in her Section
          161 CrPC statements to Rai Singh Khatri (PW-62), IO of CBI,
          her deposition in court, stating that Paras Nath Chaudhury
          (PW-1), Ram Niranjan Chaudhary (A-6), Kamakhya Narain
          Singh (PW-15), Arbind Singh (PW-13), Amarendra Kumar
          Sinha (Informant/PW-10), Onkar Singh, Mahanth Ashwani Das
          (PW-25), Shashi Bhushan Singh (PW-42) and others were
          present with the deceased, should not be relied on.
     (vii) The eye-witnesses did not testify about the retaliatory firing by
           the security personnel of Brij Bihari Prasad who were present at
           the scene of the occurrence. The recovery of empty cartridges
           and the firearms examination report (Exhibit-17) indicate that
           shots were fired from two of the four rifles which had been
           issued to the security guards.
     Court depositions and analysis of evidence
9.   We will now examine in some detail the court depositions of Paras
     Nath Chaudhury (PW-1), Mahanth Ashwani Das (PW-25), Amarendra
     Kumar Singh (PW-10) and Rama Devi (PW-24), before scrutinising
     the reasons given by the High Court to discredit their versions. Our
     discussion will also address the arguments raised by both sides, with
     particular focus on the contention of the respondents that the court
     depositions of Paras Nath Chaudhury (PW-1), Mahanth Ashwani
     Das (PW-25), Amarendra Kumar Singh (PW-10) and Rama Devi
     (PW-24) should not be accepted.
10. At the outset, we express our agreement with the reasoning given
    by the High Court for disbelieving the presence of Shashi Bhushan
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               Rama Devi v. The State of Bihar and Others


     Singh (PW-42) at the spot, and consequently, his deposition as an
     eye-witness for the following reasons:
     (i)    Shashi Bhushan Singh (PW-42) is not mentioned as one of the
            persons present at the place of occurrence in the fardbeyan
            (Exhibit-50), as also in the FIR (Exhibits 51 and 51/1). These
            documents name the eyewitnesses. Therefore, the absence
            of the name of Shashi Bhushan Singh (PW-42) is significant.
     (ii)   His statement under Section 161 CrPC was recorded on
            18.06.1998, i.e., 5 days after the date of occurrence;
     (iii) Shashi Bhushan Singh (PW-42) has deposed about taking the
           dead body of Brij Bihari Prasad on 14.06.1998 from Patna to
           Behihari village, the native place of Brij Bihari Prasad. Therefore,
           the delay in his Section 161 CrPC statement impairs his assertion
           of being an eyewitness, making it unworthy of acceptance;
     (iv) Although Paras Nath Chaudhury (PW-1), Mahant Ashwani
          Das (PW-25), and Rama Devi (PW-24) have testified to the
          presence of Shashi Bhushan Singh (PW-42) as an eyewitness,
          this assertion should not be accepted. The fardbeyan (Exhibit
          P-50), being the first written account made immediately after
          the incident, is unexceptionable. Furthermore, the unexplained
          delay of five days in recording the statement of Shashi Bhushan
          Singh (PW-42) as an eyewitness dents the credibility of his
          account.
     (v)    For the same reasons, the reliance of the prosecution on
            the court testimony of Amarendra Kumar Sinha (PW-10),
            averring the presence of Shashi Bhushan Singh (PW-42) at
            the place of occurrence, contrary to his fardbeyan, is erratic
            and untrustworthy. Amarendra Kumar Sinha (PW-10), did not
            entirely support the prosecution case, yet being conscious of
            the fact that he was the informant of the fardbeyan, he could
            not completely resile. His dock version about the presence of
            Shashi Bhushan Singh (PW-42) has been rightly disbelieved.
     Testimony of Paras Nath Chaudhury (PW-1)
11. Paras Nath Chaudhury (PW-1) is categoric about his presence in
    the hospital at about 6:40–7:00 p.m. on 13.06.1998 to visit Brij Bihari
    Prasad. He named the persons who were present with him in the
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    hospital room, which includes Mahanth Ashwani Das (PW-25). The
    testimony captures the following:
    (i)    Brij Bihari Prasad went for a walk along with the people of his
           constituency and supporters who had come to see him. The
           police personnel assigned for his protection also accompanied
           him.
    (ii)   After some time, two vehicles – a white Sumo car (Registration
           No. BR-1P-1818) and a white Ambassador car – came into the
           hospital and stopped at a distance of about 20 steps in front
           of Brij Bihari Prasad.
    (iii) Bhupendra Nath Dubey (since deceased) alighted from the
          Sumo car, which was also carrying 2-3 more persons. 2-3 other
          people also alighted from the Ambassador car.
    (iv) Bhupendra Nath Dubey (since deceased) pointed towards Brij
         Bihari Prasad and ordered that he be killed, while he himself
         also started firing shots. Others joined him in the firing.
    (v)    Paras Nath Chaudhury (PW-1) specifically identified Satish
           Pandey (since deceased) as an occupant of the Ambassador
           car.
    (vi) Vijay Kumar Shukla @ Munna Shukla (A-8), who was a
         legislator from Lal Ganj, got down from the Ambassador car,
         while Mantu Tiwari (A-4), along with 1-2 more people, alighted
         from the Sumo.
    (vii) Paras Nath Chaudhury (PW-1) saw Mantu Tiwari (A-4) but
          did not know his name. He came to know about the name
          subsequently from Amarendra Kumar Sinha (PW-10) and Shashi
          Bhushan Singh (PW-42).
    (viii) Mantu Tiwari (A-4) was carrying a big firearm while Bhupendra
           Nath Dubey (since deceased) was carrying a small firearm. The
           other assailants were carrying either a revolver or a small firearm.
    (ix) Bodyguard Lakshmeshwar Sahu who was carrying a carbine,
         was also fired upon.
    (x)    As a result of the firing, both Lakshmeshwar Sahu and Brij
           Bihari Prasad collapsed.
[2024] 10 S.C.R.                                                       1325

                Rama Devi v. The State of Bihar and Others


     (xi) While leaving, Bhupendra Nath Dubey (since deceased) took
          the carbine that belonged to Lakshmeshwar Sahu and raised
          the slogan “Jai Bajrang Bali”.
     (xii) After the assailants left, Paras Nath Chaudhury (PW-1) and
           other visitors went near the dead bodies of Brij Bihari Prasad
           and Lakshmeshwar Sahu.
     (xiii) Paras Nath Chaudhury (PW-1) identified both Mantu Tiwari (A-4)
            and Vijay Kumar Shukla @ Munna Shukla (A-8) in the court.
     (xiv) While Paras Nath Chaudhury (PW-1) identified Rajan Tiwari
           (A-9) in the court, he testified that Rajan Tiwari (A-9) was not
           present at the place of occurrence. Paras Nath Chaudhury
           (PW-1) had not seen Suraj Bhan Singh (A-1) and Shashi Kumar
           Rai (A-7) at the place of occurrence.
     (xv) Paras Nath Chaudhary (PW-1) establishes the presence of
          Amarendra Kumar Sinha (PW-10), Arbind Singh (PW- 13),
          Shashi Bhushan Singh (PW-42), Ram Nandan Singh
          (PW-12), Mahanth Ashwani Das (PW-25), Rabindra Bhagat
          (PW-14), one Kanti, resident of Jamui, Kamakhya Narain Singh
          (PW-15), Ram Niranjan Chaudhary (A-6), Vijay Jha (PW-51)
          and 2-3 other persons at the IGIMS hospital.
12. The cross-examination of Paras Nath Chaudhury (PW-1) brings the
    following aspects to light:
     (i)     He accepted that Rama Devi (PW-24) was his sister and that
             she was present in the court on the day of the hearing but left
             while his evidence was being recorded.
     (ii)    He affirmed that Brij Bihari Prasad was admitted to the hospital
             10-12 days before the occurrence.
     (iii)   Before the date of occurrence, he met Brij Bihari Prasad in
             the hospital on 4-5 occasions.
     (iv)    Brij Bihari Prasad, being in judicial custody, was admitted to
             IGIMS hospital by the jail administration.
     (v)     He accepted that his sister, Rama Devi (PW-24), had contested
             Lok Sabha elections in the past. Rama Devi (PW-24) contested
             Vidhan Sabha elections after the death of Brij Bihari Prasad.
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       (vi)     He states that he had also taken part in the election campaign
                of Rama Devi (PW-24).
       (vii)    He denied knowing the fact that Devendra Nath Dubey, one
                of the candidates of Motihari constituency, was the main rival
                of Rama Devi (PW-24).
       (viii) He further denied that Brij Bihari Prasad along with his brother,
              Shyam Bihari Prasad, murdered Devendra Nath Dubey.
       (ix)     He affirmed his presence at the place of occurrence and denied
                the claim that he did not witness the incident.
       (x)      He refuted the suggestion that being the brother-in-law of Brij
                Bihari Prasad, he is giving false evidence.
       (xi)     He also denied the claim that he was deposing at the behest
                of his sister Rama Devi (PW-24).
       (xii)    He reiterates that Mahanth Ashwani Das (PW-25) and others
                were present at the hospital.
       (xiii) Two guards, which included Lakshmeshwar Sahu, were walking
              beside Brij Bihari Prasad.
       (xiv) After the firing, the hospital staff and other people present
             started running in different directions.
       (xv)     Rama Devi (PW-24) came to the hospital after the incident.
                He testifies to seeing her cry beside the dead body of Brij
                Bihari Prasad.
       (xvi) Police officers examined the dead body of Brij Bihari Prasad
             and prepared an Inquest Report. He denies signing the Inquest
             Report or any other document.
       (xvii) He had gone to the hospital the next morning on 14.06.1998.
       (xviii) He mentioned that his police statement was recorded about
               10 -12 hours12 after the incident but could not recall the exact
               date since it was taken seven years ago.
13. Though it was pointed out that Paras Nath Chaudhury (PW-1), in
    his testimony, could not remember the number of the hospital room


12   See Trial Court Record, Vol. II, p.58.
[2024] 10 S.C.R.                                                     1327

                        Rama Devi v. The State of Bihar and Others


       or whether it was south-facing or not, this aspect would not, in our
       opinion, dent his core testimony. It is apposite to note that Paras
       Nath Chaudhury (PW-1) was aware that the hospital room was on
       the ground floor and there was a verandah after crossing 4-5 rooms
       on the west side. He further stated that there was a cycle stand, a
       vacant place for sitting, and a road which joins Bailey Road on the
       west side.
14. Paras Nath Chaudhury13 (PW-1) accepts that he did not seek
    prior permission from the court or the jail authorities to visit Brij
    Bihari Prasad in the hospital, nor did he make any entry into the
    hospital register. This is also true for other visitors, a position
    accepted by the prosecution. The absence of a register entry or
    prior permission, a factor to be taken into consideration, is not
    sufficient reason to discard bounteous and credible evidence and
    material establishing that Brij Bihari Prasad, a political leader
    with influence, had numerous visitors and supporters meeting
    him at the hospital. The fardbeyan (Exhibit-50) and the ocular
    evidence of Rama Devi14 (PW-24) and Mahanth Ashwani Das15
    (PW-25), establish the presence of Paras Nath Chaudhury (PW-1)
    and other visitors. Further, the following witness accounts establish
    the presence of visitors and eyewitnesses:
       ¾       Amarendra Kumar Sinha (PW-10) has deposed and accepted
               the presence of Arbind Singh (PW-13), Shashi Bhushan Singh
               (PW-42), Ram Niranjan Chaudhary (A-6) and 7-8 other persons.
       ¾       Arbind Singh (PW-13), who was declared hostile, accepted
               that Amarendra Kumar Sinha (PW-10), Shashi Bhushan Singh
               (PW-42) and 5-7 other persons had come to the hospital.
       ¾       Rabindra Bhagat (PW-14), the injured witness who also
               turned hostile, deposed to the presence of two other persons
               accompanying Brij Bihari Prasad.
       Once the presence of a witness at the place of occurrence is proven,
       their testimony, if credible and truthful, should not be dismissed
       solely based on non-compliance with hospital and prison protocols.


13   See para 11(xv).
14   See para 23.
15   See para 17(ii).
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15. The reasoning given by the High Court to disregard and doubt
    the eyewitness account of Paras Nath Chaudhury (PW-1), on the
    premise that he ought to have been the informant because he is the
    brother-in-law of Brij Bihari Prasad and was present at the hospital
    at the time of occurrence, is conjectural and unfounded. This fact
    cannot ipso facto lead to the disavowal of his testimony. Such a
    presumption imposes a rigid formula for determining who should be
    an informant, which the law does not envision. It is an accepted and
    admitted position that the name of Paras Nath Chaudhury (PW-1)
    has been mentioned in the fardbeyan and in the FIR as one of the
    persons present at the hospital. Any person can be an informant of
    a case, and the police may also register a case on their own. The
    rationale of the High Court for dismissing the testimony of Paras
    Nath Chaudhury (PW-1) is fundamentally flawed.
16. Yet another reason for rejecting his testimony stems from
    contradictions about the presence of Rajan Tiwari (A-9) as an assailant
    at the hospital. In his police statement, Paras Nath Chaudhury
    (PW-1) identified Rajan Tiwari (A-9) as being at the hospital, but in
    his court testimony, he stated that Rajan Tiwari (A-9) was not present.
    In our considered view, this contradiction does not weaken Paras
    Nath Chaudhury’s (PW-1) account of witnessing Mantu Tiwari (A-4)
    and Vijay Kumar Shukla @ Munna Shukla (A-8) commit the offence.
    Indian law does not recognise the doctrine – falsus in uno, falsus in
    omnibus. In Deep Chand and Others v. State of Haryana,16 this
    Court had observed that the maxim falsus in uno, falsus in omnibus
    is not a sound rule to apply in the conditions of this country. This
    maxim does not occupy the status of rule of law. It is merely a rule of
    caution which involves the question of the weight of evidence that a
    court may apply in the given set of circumstances.17 In cases where
    a witness is found to have given unreliable evidence, it is the duty
    of the court to carefully scrutinise the rest of the evidence, sifting
    the grain from the chaff. The reliable evidence can be relied upon
    especially when the substratum of the prosecution case remains
    intact. The court must be diligent in separating truth from falsehood.
    Only in exceptional circumstances, when truth and falsehood are so


16   (1969) 3 SCC 890
17   Ponnam Chandraiah v. State of Andhra Pradesh (2008) 11 SCC 640
[2024] 10 S.C.R.                                                   1329

               Rama Devi v. The State of Bihar and Others


     inextricably connected as to make it indistinguishable, should the
     entire body of evidence be discarded.
     Testimony of Mahanth Ashwani Das (PW-25)
17. The deposition of Mahanth Ashwani Das (PW-25) equally supports
    the prosecution case. His testimony captures the following:
     (i)    On 13.06.1998, he reached IGIMS hospital at about 7:00 p.m.
            to meet Brij Bihari Prasad.
     (ii)   He confirmed the presence of Paras Nath Chaudhury (PW-1).
            Amarendra Kumar Sinha (PW-10), Arbind Singh (PW-13), Shashi
            Bhushan Singh (PW-42), Ram Niranjan Chaudhary (A-6), Ram
            Nandan Singh (PW-12), Onkar Singh and some other people
            at the hospital.
     (iii) After a passing remark by Ram Niranjan Chaudhary (A-6) that
           it was hot in the hospital room, Brij Bihari Prasad stepped
           outside for a stroll. Brij Bihari Prasad was accompanied by
           Ram Niranjan Chaudhary (A-6), Lakshmeshwar Sahu and other
           security personnel.
     (iv) In the meanwhile, a Sumo car and an Ambassador car came
          inside the hospital campus. About 10-12 persons alighted from
          the said vehicles and moved toward Brij Bihari Prasad.
     (v)    Mantu Tiwari (A-4) was carrying a carbine and others were
            carrying pistols.
     (vi) He specifically identified Bhupendra Nath Dubey (since
          deceased), Shri Prakash Shukla @ Shiv Prakash Shukla (since
          deceased), Rajan Tiwari (A-9), Vijay Kumar Shukla @ Munna
          Shukla (A-8) and Satish Pandey as the persons who alighted
          from the aforementioned vehicles.
     (vii) Mantu Tiwari (A-4), Bhupendra Nath Dubey (since deceased)
           and Shri Prakash Shukla @ Shiv Prakash Shukla (since
           deceased) fired at Brij Bihari Prasad. Others were also firing
           indiscriminately in different directions.
     (viii) Vijay Kumar Shukla @ Munna Shukla (A-8), Satish Pandey and
            Rajan Tiwari (A-9) shot at Lakshmeshwar Sahu.
     (ix) On being shot, Brij Bihari Prasad and Lakshmeshwar Sahu
          collapsed.
1330                                                       [2024] 10 S.C.R.

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    (x)     Bhupendra Nath Dubey (since deceased) took the carbine
            belonging to Lakshmeshwar Sahu and thereafter exclaimed that
            the work had been done. He raised the slogan “Jai Bajrang Bali”.
    (xi) His signed statement (Exhibit-29) was also recorded by a
         judicial magistrate.
    (xii) The occurrence took place at about 8:30 p.m.
    (xiii) The police and CBI had interrogated him in this regard.
18. We have carefully scrutinized the cross-examination of Mahanth
    Ashwini Das (PW-25). His cross-examination states:
    (i)     Mahanth Ashwani Das (PW-25) was introduced to Brij Bihari
            Prasad in 1996. This was around the same time Mahanth
            Ashwani Das (PW-25) became a disciple under Sanatan
            Dharma.
    (ii)    He had also known Rama Devi (PW-24), wife of Brij Bihari
            Prasad, since 1996.
    (iii)   Rama Devi (PW-24) was present in the court while his testimony
            was being recorded. However, Mahanth Ashwani Das (PW-25)
            denies speaking to her.
    (iv)    Mahanth Ashwini Das (PW-25) states that while there was no
            particular reason to meet Brij Bihari Prasad on 13.06.1998,
            he would generally meet Brij Bihari Prasad whilst in Patna.
    (v)     Earlier also he had visited Brij Bihari Prasad in the hospital on
            another occasion, but he could not remember the date and
            time of this meeting.
    (vi)    He met Brij Bihari Prasad approximately 8-10 days prior to
            the date of incident.
    (vii)   He did not know the specific treatment for which Brij Bihari
            Prasad was admitted to the hospital. He states that the
            treatment had been going on for about one and a half months.
    (viii) He denies having knowledge of any case(s) pending against
           Brij Bihari Prasad.
    (ix)    He states that he is unaware of any case pending against
            him. However, he accepts that way back in 1979, a murder
[2024] 10 S.C.R.                                                     1331

                Rama Devi v. The State of Bihar and Others


             case was registered against him, for which he had remained
             in jail for 3-4 months.
     (x)     He states that he was sentenced to life imprisonment and
             filed an appeal in 1987; however, he was uncertain whether
             the appeal was still pending or had been dismissed, and he
             could not recall the grounds for the appeal.
     (xi)    He did not have any documentary proof of visiting the hospital
             on 13.06.1998.
     (xii)   He had not made any signatures on the death summary report
             and the seizure memo.
     (xiii) He did not know if the wife of Onkar Singh (since deceased)
            had given a police statement that her husband was murdered
            by Brij Bihari Prasad due to a contract dispute.
     (xiv) Mahanth Ashwani Das (PW-25) had deposed about remaining
           at the place of occurrence after the firing. He saw the police
           coming and lifting the dead bodies of Brij Bihari Prasad and
           Lakshmeshwar Sahu. He left the hospital for the residence
           of Brij Bihari Prasad at 9:30 p.m., where several people,
           including Kamakhya Narain Singh (PW-15), Shiv Ji Prasad,
           Ram Nandan Singh (PW-12), Onkar Singh, and Raj Bala
           Verma (Collector, Patna), had already gathered. Later that
           night, on 14.06.1998, around 12:30 a.m., he departed for
           Muzzaffarpur Math.
     (xv)    He was arrested on 04.05.2006 in Patna. Thereafter, he was
             given protection by the Bihar Government to give evidence in
             the present trial. Armed security guards, who were generally
             not present with him, used to accompany him whilst going to
             the court.
     (xvi) He states that he used to reach Smriti Bhawan of Brij Bihari
           Prasad at about 5:00 a.m. Rama Devi (PW-24), her driver and
           security guards reside at the Smriti Bhawan.
     (xvii) During the firing he had hidden about 30-40 steps away from
            the hospital room.
     (xviii) He denies the suggestion of giving false evidence due to his
             close relationship with Brij Bihari Prasad.
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19. As noted above, the High Court has rejected the testimony and
    complicity of the accused by Mahant Ashwani Das (PW-25) on the
    ground that he is himself an accused in a murder case and had
    absconded despite being convicted in appeal, while he was being
    examined as a witness in the present case. The High Court had also
    held that Mahant Ashwani Das (PW-25) had the patronage of Rama
    Devi (PW-24) and the deceased Brij Bihari Prasad.
20. The criminal background of a witness necessitates that the courts
    approach their evidence with caution. The testimony of a witness with
    a chequered past cannot be dismissed as untruthful or uncreditworthy
    without considering the surrounding facts and circumstances of the
    case, including their presence at the scene of the offence. In cases
    involving conflicts between rival gangs or groups, the testimony of
    members from either side is admissible and relevant. If the court
    is convinced of the veracity and truthfulness of such testimony, it
    may be considered. Courts typically assess the broader context to
    determine if there is sufficient corroboration, as long as there are no
    valid reasons to discredit the evidence. The crucial test is whether
    the witness is truly an eyewitness and whether their testimony is
    credible. If their presence at the scene is established beyond doubt,
    their account of the incident can be relied upon. Such evidence
    cannot be discarded merely on the grounds of criminal background.18
      Testimony of Amarendra Kumar Sinha (PW-10)
21. No doubt, Amarendra Kumar Sinha (PW-10) turned hostile, but his
    core deposition captures the following:
      (i)     He accepts having recorded the fardbeyan (Exhibit-50) on
              13.06.1998 at about 9 p.m. It bears his signatures which are
              marked Exhibits 12 and 12/1.
      (ii)    He had gone to the hospital at about 6:00 – 6:30 p.m. Some of
              the people, including Arbind Singh (PW-13), Shashi Bhushan
              Singh (PW-42) and 7-8 other persons, whom he did not
              remember, accompanied him.
      (iii) He met Brij Bihari Prasad at about 6:30 p.m. in the ward. He
            states that the incident took place at about 8:15 p.m., and he,
            along with the others, stayed there till after the incident.


18   See State of U.P. v. Farid Khan and Others (2005) 9 SCC 103
[2024] 10 S.C.R.                                                     1333

              Rama Devi v. The State of Bihar and Others


     (iv) At the time of the incident, Amarendra Kumar Sinha (PW-10)
          along with Arbind Singh (PW-13), Shashi Bhushan Singh
          (PW-42), Ram Niranjan Chaudhary (A-6) and some others, had
          come out for a stroll with Brij Bihari Prasad.
     (v)   Two vehicles, a Sumo and an Ambassador car, had come
           in. 5-6 persons alighted from the two vehicles and moved
           towards Brij Bihari Prasad. Thereafter, one of the assailants
           pointed towards Brij Bihari Prasad, identifying him as the
           Minister. The assailants then started firing. Brij Bihari Prasad
           and Lakshmeshwar Sahu were shot at, and they collapsed.
           Amarendra Kumar Sinha (PW-10) and others ran towards
           the parking lot. One of the accused took the carbine of
           Lakshmeshwar Sahu. While exiting the hospital, slogans of
           “Jai Bajrang Bali” were raised by the assailants. They exited
           in the same vehicles from the east gate.
     (vi) He does not remember the registration number of the vehicles.
          He, along with the other visitors present there, had informed
          the hospital staff, who in turn, informed the police.
     (vii) He identified Bhupendra Nath Dubey (since deceased) and
           Mantu Tiwari (A-4). He could not identify the other accused.
           He claimed that Bhupendra Nath Dubey (since deceased) and
           Mantu Tiwari (A-4) were carrying pistols.
     (viii) Mantu Tiwari (A-4) was not present in the court when Amarendra
            Kumar Sinha (PW-10) was being examined. However, he
            identified Ram Niranjan Chaudhary (A-6) who was present in
            the court.
     (ix) As he did not recognize the other accused, he was declared
          hostile and was allowed to be cross-examined by the prosecution.
     (x)   In his cross-examination, he denied that Mantu Tiwari (A-4)
           fired from his sten gun.
     (xi) He also denied the presence of Paras Nath Chaudhury (PW-1),
          claiming that he had not seen him in the hospital.
     (xii) However, he accepts in the cross-examination that he had put
           his signatures on the fardbeyan.
     (xiii) He was not cross-examined at length by the defence.
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22. We have already referred to judgments of this Court while examining
    the doctrine of falsus in uno, falsus in omnibus. The same principles
    equally apply when the court examines the statement of a witness
    who has been declared hostile by the prosecution. In a catena of
    judgments, this Court has observed that the evidence of a hostile
    witness is not to be completely rejected, so as to exclude versions
    that support the prosecution. Rather, the testimony of the hostile
    witness is to be subjected to close scrutiny, thus enabling the court
    to separate truth from falsehood, exaggerations and improvements.
    Only reliable evidence should be taken into consideration. The court
    is not denuded of its power to make an appropriate assessment.
    The entire testimony of a hostile witness is discarded only when the
    judge, as a matter of prudence, finds the witness wholly discredited,
    warranting the exclusion of the evidence in toto.19 The creditworthy
    portions of the testimony should be considered for the purpose of
    evidence in the case. It is in this context that we have to examine
    the testimony of Amarendra Kumar Sinha (PW-10), the complainant/
    informant, who gave the fardbeyan (Exhibit P-50) on which basis
    the FIR (Exhibit P-50/51) was registered.
      Testimony of Rama Devi (PW-24)
23. Rama Devi (PW-24) confirmed the presence of the witnesses –
    Paras Nath Chaudhury (PW-1), Mahanth Ashwani Das (PW-25),
    and Amarendra Kumar Sinha (PW-10) at the IGIMS hospital. On
    13.06.1998, Rama Devi (PW-24) had taken food to the hospital
    at about 2:50 p.m. and stayed there till about 7:00 p.m. From the
    hospital, she went to Maurya Lok to purchase some items for her
    sons and remained there for about one and a half hours. Whilst
    leaving Maurya Lok, she learnt about the attack on her husband,
    Brij Bihari Prasad. She immediately reached IGIMS hospital
    where she saw Brij Bihari Prasad and Lakshmeshwar Sahu lying
    dead in a pool of blood. Several people had gathered there.
    She established the presence of Paras Nath Chaudhury (PW-1),
    Mahanth Ashwani Das (PW-25), and Amarendra Kumar Sinha
    (PW-10) at the hospital.



19   See C. Muniappan and Others v. State of Tamil Nadu (2010) 9 SCC 567
[2024] 10 S.C.R.                                                    1335

              Rama Devi v. The State of Bihar and Others


24. We will exclude the testimony of Rama Devi (PW-24) regarding the
    individuals who arrived in the two vehicles and the detailed version
    about the occurrence which she heard from the people present there,
    including Paras Nath Chaudhury (PW-1), Mahanth Ashwani Das
    (PW-25), and Amarendra Kumar Sinha (PW-10), which is hearsay.
    However, her testimony establishing the presence of Paras Nath
    Chaudhury (PW-1), Mahanth Ashwani Das (PW-25), and Amarendra
    Kumar Sinha (PW-10) is direct evidence and cannot be discarded.
    Rama Devi (PW-24) was at the hospital for a considerable time
    before and after the incident. Her version is factually accurate and
    fosters confidence. Thus, the testimony of Rama Devi (PW-24) can
    be used to partly corroborate and affirm the testimonies of Paras Nath
    Chaudhury (PW-1), Mahanth Ashwani Das (PW-25), and Amarendra
    Kumar Sinha (PW-10).
25. The testimony of Rama Devi (PW-24) is also relevant from the point
    of view of motive, a question which is not contentious, as is clear
    from the questions posed to her in her cross-examination. She has
    affirmed having contested the Lok Sabha elections against Devendra
    Nath Dubey, who was murdered. Brij Bihari Prasad, her husband, was
    implicated in the said case as an accused. Her husband was also
    arrested in MEDHA scam by the CBI. He was subsequently lodged
    in Beur Jail. Due to his ill health, he was taken to Patna Medical
    College from where he was referred to IGIMS hospital.
26. Mantu Tiwari (A-4) is the nephew of the late Bhupendra Nath Dubey
    (since deceased), who was the brother of Devendra Nath Dubey, a
    political rival of Rama Devi (PW-24). Devendra Nath Dubey was killed
    a day before the re-poll for the Motihari Lok Sabha Constituency.
    Brij Bihari Prasad was named as an accused in the case. The
    longstanding animosity is further highlighted by the fact that Vijay
    Kumar Shukla @ Munna Shukla (A-8) is the brother of Chottan Shukla
    and Bhutkun Shukla, who were allegedly killed by the henchmen
    of Brij Bihari Prasad. Further, Rama Devi (PW-24) testified that in
    1987, there was an assassination attempt on her husband, Brij Bihari
    Prasad, statedly orchestrated at the behest of Raghunath Pandey
    (chargesheeted in the present case but since deceased), with Vijay
    Kumar Shukla @ Munna Shukla (A-8), Chottan Shukla and Bhutkun
    Shukla involved in the attack.
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      Identification and non-recovery of vehicles and weapons
27. Paras Nath Chaudhury (PW-1) and Mahanth Ashwani Das (PW-25)
    have identified the vehicles used by the accused on 13.06.1998. They
    have specifically deposed about a Sumo bearing registration no.
    BR-1P-1818. The Sumo and the Ambassador cars, which they have
    referred to in their depositions, were not recovered. The weapons
    used in the offence, including the carbine belonging to the deceased
    Lakshmeshwar Sahu, also could not be recovered. However, given
    the facts and circumstances of the case, the failure of the police to
    recover the vehicles and the weapons is not sufficient to undermine
    the credibility of the eyewitness accounts or the corroborative evidence
    regarding the cause of the homicidal deaths of Brij Bihari Prasad and
    Lakshmeshwar Sahu. The ocular version of the witnesses should
    not be disregarded solely because the weapon used in the crime
    and the vehicles allegedly used by the accused were not located or
    seized by the police.20
28. It is significant to note that the vehicle No. BR-1P-1818 (Sumo),
    as per the deposition of the second IO, Shashi Bhushan Sharma
    (PW-54), had been taken under a hire-purchase agreement by
    the late Devendra Nath Dubey, brother of Bhupendra Nath Dubey
    (since deceased), from a finance company – SBR Private Limited,
    Calcutta. The said assertion had remained unchallenged in the
    cross-examination of Shashi Bhushan Sharma (PW-54). The vehicle
    No. BR-1P-1818 is also mentioned in the fardbeyan (Exhibit P-50)
    of Amarendra Kumar Sinha (PW-10).
      Forwarding of the FIR
29. The impugned judgment has observed that the FIR (Exhibits 51 and
    51/1) is ante-timed. The High Court, in its reasoning, highlights this
    as one of the grounds for acquitting the accused. In the present
    case, the first IO, SSP Yadav, passed away before he could depose.
    However, registration of the FIR itself is not in doubt and debate
    and has been deposed to by Amarendra Kumar Sinha (PW-10).
    We have evidence with regard to the statement of eye-witnesses
    which were recorded under Section 161 CrPC on the night of
    occurrence, as is clear from the depositions of Paras Nath Chaudhury


20   See Yogesh Singh v. Mahabeer Singh and Others (2017) 11 SCC 195 which refers to several other
     decisions. See also State of Rajasthan v. Arjun Singh and Others (2011) 9 SCC 115
[2024] 10 S.C.R.                                                      1337

                  Rama Devi v. The State of Bihar and Others


      (PW-1), Mahanth Ashwani Das (PW-25), and Amarendra Kumar
      Sinha (PW-10). The inquest reports of Brij Bihari Prasad and
      Lakshmeshwar Sahu (Exhibits 42/1 and 52) were prepared on the
      same night and, thereafter, the post-mortem was conducted by Dr.
      Arvind Kumar Singh (PW-7) at 12:30 a.m. and 1:30 a.m. respectively
      on 14.06.1998.
30. The occurrence having taken place at night on 13.06.1998, normally
    the FIR should have been sent to the jurisdictional magistrate on
    14.06.1998. However, 14.06.1998 being a Sunday was a holiday. The
    FIR was forwarded to the jurisdictional magistrate on 15.06.1998.
    There is, therefore, an explanation for the delay in forwarding a
    copy of the FIR to the jurisdictional magistrate in terms of Section
    157 of the CrPC. It is trite law that a delay in forwarding the FIR to
    the jurisdictional magistrate is not fatal to the prosecution case. This
    Court, in State of Rajasthan v. Daud Khan,21 has examined the case
    law on the subject and held that when there is a delay in forwarding
    the FIR to the jurisdictional magistrate and the accused raises a
    specific contention regarding the same, they must demonstrate
    how this delay has prejudiced their case. Mere delay by itself is not
    sufficient to discard and disbelieve the case of the prosecution. If the
    investigation starts in right earnest and there is sufficient material on
    record to show that the accused were named and pinpointed, the
    prosecution case can be accepted when evidence implicates the
    accused. The requirement to dispatch and serve a copy of the FIR to
    the jurisdictional magistrate is an external check against ante dating
    or ante timing of the FIR to ensure that there is no manipulation or
    interpolation in the FIR. If the court finds the witnesses to be truthful
    and credible, the lack of a cogent explanation for the delay may not
    be regarded as detrimental.
      Police Statements of Eye-witnesses
31. The High Court, in its reasoning, takes an exception on the minor
    discrepancies regarding the place and time of recording the statement
    under Section 161 CrPC of Mahanth Ashwani Das (PW-25). Similarly,
    the impugned judgment has adversely commented on the versions
    given by Shashi Bhushan Singh (PW-42) and Mahanth Ashwani Das
    (PW-25) as to who had reached the hospital at an earlier point in time.


21   (2016) 2 SCC 607
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     Considering the efflux of time of more than 4-6 years between the
     date of occurrence and recording of court testimony, these issues are
     at best superficial and peripheral and would not warrant disregarding
     the prosecution case. The questions posed to the witnesses were
     more in the nature of a memory test rather than questions posed to
     test the truthfulness and credibility of their core testimony. Equally,
     the observation of the High Court on the statement under Section
     161 CrPC of Rama Devi (PW-24) to Rai Singh Khatri (PW-62), IO of
     the CBI, is inconsequential. Section 161 CrPC statement of Rama
     Devi, in which she had given the names and details of the persons
     who were present in the hospital, cannot be brushed aside solely
     on this ground. Statements under Section 161 CrPC are per se not
     evidence in the court. Rama Devi’s statement under Section 161
     CrPC was recorded on 13.06.1998 and the same was filed along
     with the chargesheet. She was not cross-examined regarding the
     said statement.
32. The assertion that Rama Devi’s (PW-24) Section 161 CrPC
    statement dated 13.06.1998 to Shashi Bhushan Sharma, IO
    (PW-54), has not been included in the record is solely predicated
    on her cross-examination conducted on 21.02.2006. Rama Devi’s
    (PW-24) acknowledgement during her cross-examination reflects a
    clear lapse in memory, likely due to the nearly eight-year gap and
    the length of her questioning. It is a well-established fact that SSP
    Yadav was the IO on 13.06.1998, making it impossible for Shashi
    Bhushan Sharma (PW-54) to have recorded her Section 161 CrPC
    statement on that date. Moreover, Shashi Bhushan Sharma (PW-54)
    was never questioned about whether he had recorded Rama Devi’s
    (PW-24) Section 161 CrPC statement on 13.06.1998. In fact, both
    the defence and prosecution agree that Shashi Bhushan Sharma
    (PW-54) took over the investigation on 14.07.1998.
     Attesting Witnesses and Retaliatory Firing
33. The contention that Paras Nath Chaudhury (PW-1) and Mahanth
    Ashwani Das (PW-25) were not attesting witnesses to the inquest
    report, fardbeyan, FIR, etc. is inconsequential and does not in any
    way weaken their ocular evidence. Similarly, the contention that
    they were not injured during the cross-fire is nugatory as it is clear
    from the evidence on record that it was Brij Bihari Prasad who was
    the target of the attack. The armed bodyguards who were attacked
[2024] 10 S.C.R.                                                     1339

              Rama Devi v. The State of Bihar and Others


     had retaliated. Although it is true that the depositions of Paras Nath
     Chaudhury (PW-1) and Mahanth Ashwani Das (PW-25) do not mention
     the retaliatory firing by the bodyguards, an independently proven
     fact, this alone is not a sufficient ground to dismiss their presence
     at the spot or their versions including the culpability of the persons
     who had committed the offence.
     Offence under Section 307 read with Section 34 of the IPC
34. Rabindra Bhagat (PW-14) had averred to his presence at IGIMS
    hospital on 13.06.1998 in the evening at about 7-7:30 p.m. when
    he was shot at and received a bullet injury in his left arm during
    the attack on Brij Bihari Prasad. He called his brother, Sanjeev
    Kumar, who took him to Alok Nursing Home for treatment.
    Rabindra Bhagat (PW-14), however, did not identify the culprits. Dr.
    Tarkeshwar Prasad Singh (PW-8) examined injured Rabindra Bhagat
    (PW-14) on 13.06.1998 at 9:30 P.M. and issued the injury report dated
    08.08.1998 (Exhibit-10). The deposition of Dr. Tarkeshwar Prasad
    Singh (PW-8) refers to the entry and exit wounds on the left arm of
    Rabindra Bhagat (PW-14) inflicted by a gunshot approximately two
    hours before the medical examination. In any case, it is proven that
    in spite of the number of people present, there was extensive firing
    and the use of firearms with intent to kill. The charge under Section
    307 of the IPC is, therefore, established and proved.
     The Charge of Criminal Conspiracy
35. The case was transferred to CBI by Notification dated 07.03.1999,
    pursuant to which it conducted an investigation. The CBI filed two
    supplementary chargesheets implicating Suraj Bhan Singh (A-1), Ram
    Niranjan Chaudhary (A-6), Shashi Kumar Rai (A-7) and Raghunath
    Pandey, who had since died, as conspirators who were responsible for
    the incident. A supplementary chargesheet was filed against Shashi
    Kumar Rai (A-7) on 08.11.2000, followed by a second supplementary
    chargesheet dated 20.04.2001 against Raghunath Pandey.
36. The prosecution case makes a charge of conspiracy based on an
    alleged meeting which took place in Beur Jail where Suraj Bhan
    Singh (A-1) was incarcerated. Suraj Bhan Singh (A-1) is said to
    have reportedly met with Vijay Kumar Shukla @ Munna Shukla
    (A-8), Lallan Singh (A-3) and Ram Niranjan Chaudhary (A-6).
    However, the witnesses to this meeting, Sone Lal (PW-32) and Lal
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     Babu Chaudhury (PW-39), turned hostile and did not support the
     prosecution version. This evidence is based on the testimony of
     Shashi Bhushan Sharma (PW-54) that Sone Lal (PW-32) and Lal
     Babu Chaudhury (PW-39) informed him about the said jail meeting on
     19.08.1998, nearly two months after the date of occurrence. Shashi
     Bhushan Sharma (PW-52) failed to establish how he discovered the
     purported version of Sone Lal (PW-32) and Lal Babu Chaudhury
     (PW-39). He was also unable to establish that Sanjay Singh, the
     inmate whom Sone Lal (PW-32) and Lal Babu Chaudhury (PW-39)
     had allegedly visited, was present in Beur Jail 2-3 days before the
     incident. There is no record of Sone Lal (PW-32) and Lal Babu
     Chaudhury (PW-39) visiting Beur Jail.
37. Further, the claim of the prosecution regarding the dubious character
    of Ram Niranjan Chaudhary (A-6) and that he encouraged Brij Bihari
    Prasad to go outside his hospital room for a walk is not directly
    implicatory. Rather, it is an assumption requiring substantial evidence
    to be established. It only expresses doubt about Ram Niranjan
    Chaudhary (A-6), an insider who could have given information.
38. To prove the charge of conspiracy, the prosecution further relied
    upon the telephone records of Mokama landline number 32772,
    which was supposedly subscribed to by Suraj Bhan Singh (A-1).
    The telephone records indicate calls made from Mokama landline
    number 32772 to Shashi Kumar Rai (A-7), Sunil Singh (A-5) (since
    deceased) and Munna Shuka (A-8). The prosecution relied on the
    report dated 29.10.1999 (Exhibit-1) submitted by Shiya Sharan Ram
    (PW-2), Sub-Divisional Engineer (Vigilance), Bharat Sanchar Nigam
    Limited, which stated that the landline number was subscribed in
    the name of one Shrawan Kumar Agrawal but was operational in
    the house of Suraj Bhan Singh (A-1) at Mokama. However, the
    said report of Shiya Sharan Ram (PW-2) is based on the physical
    verification of S.M.M. Rahman, Sub-Divisional Engineer, Barh and
    Jitan Mehta, Junior Telecom Officer, Hatida, both of whom, have
    not been examined. Further, Shrawan Kumar Agrawal has also not
    been examined. The original report prepared by S.M.M. Rahman
    and Jitan Mehta is also not on record. The prosecution version
    establishing the landline number as belonging to Suraj Bhan Singh
    (A-1) hinges on the testimony of M.L. Meena (PW-60), Assistant IO,
    CBI. However, M.L. Meena (PW-60) accepts in his testimony that
[2024] 10 S.C.R.                                                     1341

              Rama Devi v. The State of Bihar and Others


     he did not enter the house to verify the existence of a telephone
     set. Rather, his entire version is based on his interaction with the
     step-mother of Suraj Bhan Singh (A-1). The telephone records
     indicating the exchange of calls between 11.05.1998 and 11.06.1998,
     as deposed by Rai Singh Khatri (PW-62), do not substantively prove
     and establish the conspiracy charge in the absence of revelatory
     and weighty incriminating material.
39. The CBI also relied upon the post-incident celebration held in village
    Khanjah Ghat on 15.06.1998 at the behest of Vijay Kumar Shukla
    @ Munna Shukla (A-8). Amod Kumar (PW-11), Sushil Kumar Singh
    (PW-35) and Pooja (PW-37), who were statedly witnesses to the
    post-incident celebration turned hostile. The statement of Avadhesh
    Kumar Singh (PW-36), who did not turn hostile, was recorded one
    year and two months after the date of occurrence. The prosecution
    has not placed any material on record to showcase how M.L. Meena,
    IO, CBI (PW-60) had traced Avadhesh Kumar Singh (PW-36), though
    Rai Singh Khatri, IO, CBI (PW-62) had stated that M.L. Meena,
    IO, CBI (PW-60) had got in touch with Avadhesh Kumar Singh
    (PW-36). The evidence of Avadhesh Kumar Singh (PW-36) and
    Pooja (PW-37) establishing the presence of Shashi Kumar Rai
    (A-7), since deceased, in the post-incident celebration is not entirely
    credible. In any case, Shashi Kumar Rai (A-7) passed away during
    the pendency of the present appeals.
40. To fortify the charge of conspiracy, the prosecution has further relied
    on the fax message (Exhibit-6) regarding the threat to the life of Brij
    Bihari Prasad. This fax message would not help the prosecution
    implicate the accused persons – Suraj Bhan Singh (A-1), Mukesh
    Singh (A-2), Lallan Singh (A-3) and Captain Sunil Singh (A-5) (since
    deceased) – on the charge of criminal conspiracy.
     Discrepancy regarding the presence of Rajan Tiwari (A-9)
41. As noticed above, Paras Nath Chaudhury (PW-1) in his deposition
    had categorically stated that Rajan Tiwari (A-9) was not present
    with the other accused who had murdered Brij Bihari Prasad
    and Lakshmeshwar Sahu. Even though Mahanth Ashwani Das
    (PW-25) had referred to the presence of Rajan Tiwari (A-9), given
    the discrepancy in the statement of the two eye-witnesses, we feel
    that the benefit of doubt must be given to Rajan Tiwari (A-9).
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     Conclusion
42. Even if we completely exclude the testimony of Shashi Bhushan
    Singh (PW-42), the depositions of Paras Nath Chaudhury (PW-1),
    Mahanth Ashwani Das (PW-25) and, to some extent of Rama Devi
    (PW-24) and Amarendra Kumar Sinha (PW-10) with other evidence
    and material are conclusive enough to prove the charge against
    Mantu Tiwari (A-4) and Vijay Kumar Shukla @ Munna Shukla (A-8).
    Bhupendra Nath Dubey and Captain Sunil Singh (A-5) are no more,
    and, therefore, we need not consider the evidence against them.
    Similarly, we need not examine the depositions implicating Shashi
    Kumar Rai (A-7), who died during the pendency of the present
    appeals.
43. Regarding the question of conspiracy and the evidence against
    Suraj Bhan Singh (A-1), Mukesh Singh (A-2), Lallan Singh (A-3) and
    Ram Niranjan Chaudhary (A-6), there is no direct ocular evidence
    implicating them through the testimonies of Paras Nath Chaudhury
    (PW-1) and Mahanth Ashwani Das (PW-25). Since the charge of
    conspiracy is not substantiated, we will not interfere with the judgment
    of the High Court acquitting them, and they are entitled to the benefit
    of the doubt.
44. In light of the above discussion, we hold and direct as under:
     a)   The charge under Section 302 read with Section 34 of the
          IPC against Mantu Tiwari (A-4) and Vijay Kumar Shukla @
          Munna Shukla (A-8) for the murders of Brij Bihari Prasad
          and Lakshmeshwar Sahu is proven and established beyond
          reasonable doubt.
     b)   The charge under Section 307 read with Section 34 of the IPC
          against Mantu Tiwari (A-4) and Vijay Kumar Shukla @ Munna
          Shukla (A-8) for attempting to murder, as held in paragraph 34
          above, is proven and established beyond reasonable doubt.
     c)   The conviction and sentence awarded to Mantu Tiwari (A-4)
          and Vijay Kumar Shukla @ Munna Shukla (A-8) by the trial
          court under Sections 302 and 307 read with Section 34 of the
          IPC are affirmed and restored.
     d)   Consequently, Mantu Tiwari (A-4) and Vijay Kumar Shukla @
          Munna Shukla (A-8) shall have to undergo imprisonment for
[2024] 10 S.C.R.                                                       1343

                 Rama Devi v. The State of Bihar and Others


             life with a fine of Rs. 20,000/- (Rupees Twenty Thousand Only)
             each under Section 302 read with Section 34 of the IPC, and
             in addition to undergo rigorous imprisonment for five years with
             a fine of Rs. 20,000/- (Rupees Twenty Thousand Only) each
             under Section 307 read with Section 34 of the IPC. Both the
             sentences shall run concurrently. Section 428 of the CrPC shall
             apply. As default punishment was not imposed by the trial court,
             we direct that in case of non-payment of fine on each account,
             Mantu Tiwari (A-4) and Vijay Kumar Shukla @ Munna Shukla
             (A-8) shall undergo rigorous imprisonment for six months.
     e)      Mantu Tiwari (A-4) and Vijay Kumar Shukla @ Munna Shukla
             (A-8) are directed to surrender within two weeks from today to
             the concerned jail authorities/court to serve the remainder of
             their respective sentences. In case of failure to surrender, the
             authorities shall take appropriate measures to arrest and detain
             them in accordance with law.
     f)      Insofar as Suraj Bhan Singh (A-1), Mukesh Singh (A-2), Lallan
             Singh (A-3), Ram Niranjan Chaudhary (A-6) and Rajan Tiwari
             (A-9) are concerned, we give them benefit of doubt and uphold
             their acquittal.
45. The appeals are partially allowed and the impugned judgment is set
    aside in terms and vide the directions issued in paragraph 44 above.
    Pending applications, if any, shall also stand disposed of.

     Result of the case: Appeals partly allowed.



     †
         Headnotes prepared by: Divya Pandey