Full Judgment Text
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CASE NO.:
Appeal (crl.) 1123 of 2000
PETITIONER:
THANEDAR SINGH
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH
DATE OF JUDGMENT: 30/10/2001
BENCH:
CJI, R.C. Lahoti & P. Venkatarama Reddi
JUDGMENT:
P.Venkatarama Reddi, J.
1. This appeal arises out of the judgment of Madhya Pradesh High
Court (Gwalior Bench) dated 6.7.2000 reversing the verdict of acquittal
recorded by the first Additional Session Judge, Morena, in Sessions Case
No. 178/83. The accused herein was charged alongwith six others for
committing murder of one Rajbahadur Singh. The appellant was charged
under Section 148 and Section 302 IPC whereas others were charged under
Sections 148, 302 read with Section 149 IPC. The Sessions Judge acquitted
all the accused. On appeal by the State under Section 378 Cr.P.C., the High
Court granted leave to appeal only against the appellant. The High
Court found the appellant guilty of murdering Rajbahadur Singh and
convicted him under Section 302 IPC and sentenced him to life
imprisonment. The High Court held that there was sufficient evidence that
the appellant-accused had shot the deceased and the trial court committed
serious error in acquitting him.
2. The prosecution case is that on the intervening night of 18/19th May,
1982, the deceased Rajbahadur Singh and his father Bhola Singh (PW6)
were sleeping at the threshing floor of their field (Khalihan). Rajbahadur
(deceased) was sleeping on the heap of Arhar gram and his father was
sleeping on a cot nearby. About mid-night time, seven persons including
the appellant and his father came to the spot. On exhortation by one of the
accused-Charan Singh, the appellant Thanedar fired at the deceased from
close range. Rajbahadur Singh died instantaneously. The father of the
deceased Bhola singh who was witnessing the incident raised hue and cry
after the accused persons left the scene. On hearing the sound of gun shot
and the cries of Bhola Singh, his relation by name Surat Singh (PW 8) who
was sleeping at the nearby Khalihan woke up and saw five persons (other
than the appellant) armed with weapons going towards the village Sikrodi.
He then went to the Khalihan of his uncle and found Rajbahadur Singh lying
dead. He came to know about the incident through Bhola Singh. Surat
Singh went to the Police Station, Sihania which is 6 K.M. away in the
morning and lodged the report. ASI, Rajaram (PW10) recorded the FIR at
8.45 A.M. The FIR is Ex. P 10. In the FIR, amongst others, the name of the
appellant is shown as the actual assailant. There is also a recital in the FIR
that there was enmity between the accused and the deceased last month in
connection with the ploughing of Khalihan and there was a fight between
Rajbahadur and Charan Singh (one of the accused). The crime was
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registered. ASI PW 10, who went to the spot found a gun shot wound on
the chest of the deceased and he seized the dead body and prepared inquest
panchanama (P 6). An empty cartridge of 7 mm bore which was found at
the spot was seized under Ex. P 7. He sent the dead body for post-mortem
which was conducted by Dr. D.S. Badukar (PW7) on the morning of
20.5.1982. He found a bullet entry injury measuring .7 X .7 cm in round
shape on the right chest and an exit injury measuring 2.5 cm X 2.5. cm in
round shape. The fourth and eighth ribs were found broken, middle portion
of left lung and inner part of the chest was destroyed with the resultant
damage to heart. According to him, the death occurred on account of
haemorrhage and shock caused by the said injuries attributable to the bullet
fired by rifle. According to PW7, the injuries were sufficient in the ordinary
course of nature to cause death. PW 10 prepared an abscondence memo
(Ex. P 13) pertaining to the accused on 19.5.1982. He arrested the accused-
appellant on 5.6.1982 and the other accused later on. He seized a mouser
rifle lying in Police Station Tighra in connection with crime No.14/82 under
Ex. P 20 and this, according to the prosecution was the weapon used by the
accused. It is said to have been stolen from one Balmukund a few days
before the occurrence.
3. PW 6, the father of the victim, is the eye witness. PW 8 and PW 4
who are close relations of the deceased were examined in order to show that
the accused were seen near the place of occurrence soon after the
occurrence. The case of the defence broadly was that PW 6 was not the real
eye witness and the FIR containing the names of accused was brought into
existence two or three days after the incident. The trial court disbelieved the
evidence of PWs 6, 8 and 4 and doubted the correctness of the prosecution
version as regards the recording of FIR on the morning of 19th May. All the
accused were acquitted. On appeal by the State which was confined to the
appellant herein, the impugned judgment has been rendered by the High
Court finding the appellant guilty under Section 302 IPC.
4. Having gone through the evidence and the record, we are of the
view that the impugned judgment of the High Court shall not be allowed to
stand.
5. The factors relied upon by the Trial Court as well as those which
cast doubt on the prosecution version are the following:
5.1 Eye witness, namely PW 6, the father of the deceased could not have
identified the accused persons as the occurrence took place according to
PWs 6 and 8, at about mid-night (between 12 and 1 a.m.) and it was a dark
night according to the evidence adduced by defence. The evidence of DW 1
that as per the almanac, the rising time of the moon was about 2.30 a.m. on
the crucial day was relied upon by the Trial Court.
5.2 PW 6 did not reveal to his kith and kin and the villagers who came to
the place of occurrence in the morning about the names of any of the
accused. However, he deposed that the names of the accused persons were
mentioned to Jagjit, Balmukund and Maharaj Singh, but, they were not
examined. As seen from the cross-examination at paragraph 24, he did not
even disclose the name of the alleged assailant to his son Banwari. Had he
identified the accused, who were known to him, he would have in the normal
course disclosed the names at least to his close relations. This fact should
be viewed in the context of defence version that the FIR was not recorded at
the time and date it was purportedly recorded. Complaint was supposed to
have been lodged by PW 8 at 9 a.m. on the morning following the night of
occurrence. The defence produced a certified copy of the FIR received by
the Court of First Class Judicial Magistrate, Amba, in which a note written
by the clerk of the court showed that it was received on 21.5.1982. That
document is Ext. D 4. The evidence of the date of sending the copy of FIR
to the Magistrates court was not adduced by the prosecution inspite of
giving more than one opportunity, as borne out by the endorsements on the
order sheets dated 28.11.1984 and 7.12.1984. On 28.11.1984, it was noted
that adverse inference will be drawn if the record was not produced. Yet, the
prosecution failed to adduce proof. A specific suggestion was put to PW 10.
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(S.H.O., Sihonia P.S.) that FIR was prepared 2 or 3 days after the
occurrence which, of course, was denied. P.W.10 admitted that no attempt
was made to apprehend the accused on 19th and 20th May. It is significant to
note that the Crime No./FIR No. is not to be found in the inquest report
(P.6), (P.5) site plan or (P.8) which is a requisition sent to the hospital for
post-mortem. No reference whatsoever is made in Exh. P 6 about the
information, if any, furnished by PW 8 or PW 6. All this would support
the defence version that FIR (P-10) in which the names of accused were
mentioned would have probably come into existence much later.
In this context it is apposite to refer to the decision of this Court in
Meharaj Singh Vs. State of U.P. (1994 (5) SCC 188), there also the
question whether FIR was ante-timed to rope in the accused after some
deliberations or to suit the investigation came up for consideration. Dr. A.S.
Anand, J. (as his Lordship then was) speaking for the Bench observed thus:-
FIR in a criminal case and particularly in a murder case
is a vital and valuable piece of evidence for the purpose
of appreciating the evidence led at the trial. The object
of insisting upon; prompt lodging of the FIR is to obtain
the earliest information regarding the circumstance in
which the crime was committed, including the names of
the actual culprits and the parts played by them, the
weapons, if any, as also the names of the eyewitnesses, if
any. Delay in lodging the FIR often results in
embellishment, which is a creature of an afterthought.
On account of delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also creeps in of the
introduction of a coloured version or exaggerated story.
With a view to determine whether the FIR was lodged at
the time it is alleged to have been recorded, the courts
generally look for certain external checks. One of the
checks is the receipt of the copy of the FIR, called a
special report in a murder case, by the local Magistrate.
If this report is received by the Magistrate late it can
give rise to an inference that the FIR was not lodged at
the time it is alleged to have been recorded, unless, of
course the prosecution can offer a satisfactory
explanation for the delay in despatching or receipt of the
copy of the FIR by the local Magistrate. Prosecution has
led no evidence at all in this behalf. The second external
check equally important is the sending of the copy of the
FIR along with the dead body and its reference in the
inquest report. Even though the inquest report, prepared
under Section 174 Cr.P.C., is aimed at serving a statutory
function, to lend credence to the prosecution case, the
details of the FIR and the gist of statements recorded
during inquest proceedings get reflected in the report.
The absence of those details is indicative of the fact that
the prosecution story was still in an embryo state and had
not been given any shape and that the FIR came to be
recorded later on after due deliberations and
consultations and was then ante-timed to give it the
colour of a promptly lodged FIR. In our opinion, on
account of the infirmities as noticed above, the FIR has
lost its value and authenticity and it appears to us that the
same has been ante-timed and had not been recorded till
the inquest proceedings were over at the spot by PW8.
Earlier, the fact that the number of FIR or Crime Number was
not found in the inquest report or in the requisition for the post-mortem was
adversely commented upon by the learned Judges. The fact situation is more
or less the same here. We do not think that there is anything in the decision
of this Court in Shivram vs. State of U.P. (1998 (1) SCC 149), which goes
against the legal position laid down in Meharaj Singhs case. No broad
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proposition can be said to have been enunciated in that later case that
inordinate and unexplained delay in sending the FIR to the Magistrate would
be an immaterial factor liable to be ignored altogether.
5.3 The weapon is a 7 mm bore rifle with 20 long barrel which was
seized by PW 10 on 25.8.82 at the Police Station, Tigra where it was lying in
connection with Crime No. 14 of 1982, but it has not been connected to the
accused. The prosecution version that this gun which was stolen from some
other person two days earlier came into the possession of the accused and
the same was used in the murder of deceased remained unsubstantiated.
Moreover, the report of the Forensic Science Laboratory which is Ex. P 17
revealed that there was no nexus between the seized gun and the empty
cartridge found at the site of occurrence.
5.4 The evidence of PW 8 (Surat Singh) who is supposed to have seen the
accused persons at about the time of occurrence near the Khalihan of
deceased, was not worthy of credence. There was no occasion for him to
sleep in the fields when according to his own admission, he was not
cultivating the lands. Moreover, PW 8, who lodged the complaint and
closely related to the deceased, did not even mention the names of accused
to any one in the village before lodging the complaint, according to his own
admission. In any case, he stated in Ex. P.10 as well as in the deposition
that he saw five accused (other than the appellant) on that crucial night soon
after the occurrence and therefore his evidence does not go against the
appellant.
6. The High Court was of the view that the judgment of the Trial Court
was perverse and its approach was unreasonable. The first comment made
by the High Court was that the Trial Court did not assign any reason for
disbelieving the FIR. The High Court found no infirmity in the FIR having
regard to the fact that the part played by the accused appellant was
specifically mentioned in the FIR. But, the High Court missed to note the
crucial facts adverted to in Para 5.2 (supra) which cast a serious doubt on the
correctness of the FIR, especially the time and date of its recording. The
learned Sessions Judge particularly adverted to the fact that the prosecution
did not produce the original record of police station relating to the receipt
and despatch of FIR inspite of an order passed to that effect. Though the
Trial Judge was not careful enough in recording a specific finding that the
prosecution failed to clear the doubt regarding the date and time of recording
the FIR, in sum and substance, that is what the learned Trial Judge purported
to say. The observations of the Trial court were not properly understood by
the High Court when it proceeded on the basis at paragraph 12 that the Trial
court found fault with the delay in lodging the complaint at 9 A.M. on the
next morning. But, it is to be noted that nowhere in the judgment, the trial
court observed that the complaint having been lodged and recorded at
9A.M. next morning, that itself would tantamount to delay.
7. The second aspect commented upon by the High Court was that
there was no basis for the finding of the Trial Court that the moon rise was
at about 3 OClock on 19th May. The learned Judges commented that the
almanac was not brought on record. But, it is to be seen that the learned
Sessions Judge referred to the evidence of DW 1 Pandit Kedar Nath whose
evidence need not be thrown out merely for the reason that almanac was not
filed. DW 1 was clear in his deposition that according to Kashi Vishwa
Panchangam, which he brought with him, on the intervening night of 18th
and 19th, the moon rise would be at 2.31 a.m. This statement has not been
challenged in the cross-examination. The only point elicited in the cross-
examination was that according to some other almanac, there will be some
difference and the moon rise may be at 2.45 a.m. The statement of PW 6
that the night became bright after 12, mid-night is liable to be doubted.
There is no basis for the assumption of the High Court that the rising of the
moon could be before mid night.
However, on the aspect of identification, the High Court may be
justified in commenting, based on Nathuni Yadavs Vs. State of Bihar
(1998 (9) SCC 238) that the approach of the Trial court is faulty. In Nathuni
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Yadavs case (supra), this Court pointed out that under certain
circumstances, the lack of moonlight or artificial light does not per se
preclude identification of the assailants. Thomas J. speaking for the Court
observed :-
Even assuming that there was no moonlight then, we
have to gauge the situation carefully. The proximity at
which the assailants would have confronted with the
injured, the possibility of some light reaching there from
the glow of stars, and the fact that the murder was
committed on a roofless terrace are germane factors to be
borne in mind while judging whether the victims could
have had enough visibility to correctly identify the
assailants. Over and above those factors, we must bear in
mind the further fact that the assailants were no strangers
to the inmates of the tragedy-bound house, the
eyewitnesses being well acquainted with the
physiognomy of each one of the killers. We are,
therefore, not persuaded to assume that it would not have
been possible for the victims to see the assailants or that
there was possibility for making a wrong identification of
them. We are keeping in mind the fact that even the
assailants had enough light to identify the victims whom
they targeted without any mistake from among those who
were sleeping on the terrace.
While the possibility of identification of the accused-appellant
cannot be ruled out in the present case too having regard to the fact that the
accused was not stranger and the occurrence was at an open place, there is
one more factor which creates some difficulty in the matter of identification.
PW 6 was sleeping on a cot at a little distance from the spot where the
victim was sleeping. PW 6 stated that as many as five persons including
the appellant surrounded his son and two of the accused were standing in
front of his cot. In this situation, assuming that there was faint light
emanating from the open sky, would it be possible for PW 6 to observe the
appellant firing the shot from the rifle? The possibility seems to be remote.
At any rate, this aspect ought to have engaged the attention of the High
Court before reversing the trial courts finding on the point of identification
by PW 6.
8. The third comment made by the High Court is that no reason was
assigned by the High Court for disbelieving the eye-witness PW 6
(wrongly noted as PW 3). This comment ignores the fact that the
identification by PW 6 Bhola Singh was itself doubted by the Sessions
Judge. That apart, as already pointed out supra, PW 6 categorically stated
that he did not reveal the names of the accused to any one not even to his
close relations after the occurrence. This point was also taken into account
by the trial court (vide para 16 of the judgment). This fact which is not quite
consistent with the professed knowledge of the witness about the assassin
has not been taken into account by the High Court.
9. The High Court then commented that the Trial Court was not
justified in disbelieving PW 8 (wrongly noted as PW 9) who is the cousin of
the deceased merely on the ground that since the lands were leased out, there
was no occasion for him to sleep at the barn. The High Court, however, did
not express any view of its own on the credibility and worth of the evidence
of PW 8. His evidence was not re-appreciated. As already noticed,
according to his version, he saw five accused persons near his field soon
after the occurrence and the appellant was not one amongst them.
10. The High Court found fault with the comment of the trial court
that in Ex. P 5 (site plan), Ex. P 6 (inquest report) and Ex. P 8 (application
for post mortem) the names of the accused were not mentioned. True, the
details of the accused persons need not be mentioned in Ex. P.5 or Ex. P 8
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but in the inquest report, it is not unusual to note the gist of FIR or the cause
of death as narrated by the witnesses. We have already referred to the
observations in Meharaj Singhs case in this regard. Be that as it may,
the trial courts conclusion will not be vitiated merely because certain
inappropriate observations were incidentally made.
11. As regards the motive for the crime, the High Court observed in
Paragraph 3 that one of the reasons for acquittal was that the motive was not
proved. This is again a factually incorrect statement. In the trial courts
judgment, the learned Judge did not attach much importance to motive as
seen from paragraph 8 of the judgment. Apart from observing that there was
no evidence of enmity between the deceased and the accused, the trial court
noted that much importance need not be given to this aspect as the case is
based on eye witness account.
12. The foregoing discussion shows that the High Court was not
justified in making the comments that the trial court did not give reasons on
certain important aspects or misdirected itself in the appreciation of
evidence. Though the judgment of the trial court is somewhat perfunctory
and lacking clarity in certain respects, on the whole, the approach and
conclusions of the trial court cannot be said to be perverse or vitiated by any
serious error warranting interference with the verdict of acquittal. The view
taken by the trial court, in our opinion, is a reasonably possible view and,
therefore, the High Court was not justified in reversing the acquittal insofar
as the appellant is concerned. The High Court failed to address itself to
certain crucial factors discussed above concerning the credibility of eye
witness account and the correctness of the FIR.
13. For the aforesaid reasons, the appeal is allowed. The conviction
and sentence of the appellant under Section 302 IPC is set aside and the
appellant is directed to be set at liberty forthwith, if not required to be
detained in any other case.
..CJI.
....J.
[R.C. LAHOTI)
J.
[P.VENKATARAMA REDDI]
OCTOBER 30, 2001
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