Full Judgment Text
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CASE NO.:
Appeal (crl.) 1644 of 2005
PETITIONER:
Jagdish Murav
RESPONDENT:
State of U.P. & Ors
DATE OF JUDGMENT: 24/08/2006
BENCH:
S.B. Sinha & Dalveer Bhandari
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
The Appellant before us was prosecuted for commission of an
offence under Section 307 of the Indian Penal Code for making attempt to
murder of Babu Lal Yadav (PW-2). The first informant Ramsurat (PW-
1) was his uncle being brother of Ramashray, father of PW-2. PW-2 was
a resident of Pukhar within the jurisdiction of the Police Station Basgaon.
When the alleged occurrence took place, he was working as a driver of a
vehicle belonging to one Mangal Prasad. He had parked the said vehicle
at Kovadeh near Sahabganj, allegedly, waiting for the passengers.
The Appellant together with other two accused, viz., Ramsahay,
Udaybhan and Ganga who were residents of his village allegedly were
present at the place of occurrence. The relationship between the parties
admittedly was not good. Ramashray, father of PW-2 had an ongoing
dispute with Ramniwas, father of Accused No. 4, Ramsahay and Vyas,
father of Accused No. 3 Udaybhan. Admittedly Udaybhan was the uncle
of Ramvander Pandey who instituted a case against the brother of
Ramsurat under Sections 323, 504 and 506 of the Indian Penal Code.
They allegedly asked him to withdraw the litigations to which he replied
that he should ask therefor the persons concerned, i.e., who had been
fighting out the cases.
As per the prosecution witnesses, the accused had come near the
vehicle of the deceased. He wanted to come out of the vehicle but he was
prevented from doing so. Thereafter upon alleged exhortation of
Ramsahay, Udaybhan and Ganga, the Appellant herein allegedly fired a
shot at his neck from his katta (country made pistol) injuring right side of
his neck.
We may in view of the aforementioned backdrop of events have a
look at the evidences brought on record.
PW-1 indisputably is a chance witness. He had travelled a distance
of 35 kms. from his village to Sahabganj only to purchase some
household articles, viz., sutli, dalda, mirch, etc. He admitted that the said
articles were available in his own village.
He allegedly had seen the owner of the vehicle of which PW-2 was
the driver. He named one Ashok Babu as the owner of the vehicle. He
had allegedly talked with him for about 2-4 minutes. From the materials
on records, however, it appears that the owner of the said vehicle was one
Mangal Prasad. Ashok Babu allegedly had informed him that the
deceased was at Kovadeh. He reached the place of occurrence within
five minutes thereafter. Allegedly, two other persons, namely,
Dhanusdhari and Chhedi also visited the said place. They were not
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examined for reasons best known to the prosecution. If PW-1 is to be
believed, the occurrence took place at about 5.30 p.m. He not only heard
conversations between the deceased and the Appellant but also saw the
incident.
Ashok Babu and Mangal Prasad immediately after the occurrence
allegedly came to the spot and took PW-2 to the Medical College. A
First Information Report was lodged at 10.15 p.m. on the same day.
Although PW-1, the informant allegedly went to the Medical College, he
did not talk to the doctor. It was Mangal Prasad who took the injured to
the doctor. Parentage of PW-2 was also not disclosed before the hospital
authorities, which was unusual if PW-1 had taken him thereto.
PW-2, however, stated that he had taken the vehicle bearing No.
DDM 4303 to Khalilabad. On the fateful day, however, he was driving a
vehicle bearing registration No. URO 9966. He had gone to Deoriya
wherefrom he returned about at 7 p.m. PW-2 stated that at about 8 p.m.
he went to meet his employer who had asked him to take the vehicle to
Kodah to get passengers. PW-1 deposed that he reached Medical College
at 10.15 p.m. He was there for about one hour. He came to police station
thereafter which would mean that he reached police station at about 12 O’
Clock in the night. The First Information Report, as noticed hereinbefore,
was said to have been registered at about 10.15 p.m. According to PW-1,
PW-2 had been taken straight to the Medical College. The doctor’s
report which was marked as Ex. P-2, however, clearly demonstrates that
the injured was taken to the District Hospital first and thereafter he was
referred to the Medical College. Despite the fact that he was referred by
the District Hospital, PW-2 was examined by an anesthetist. An X-ray
was advised which was taken.
The matter was investigated by Shri Fadinder Singh Yadav who
examined himself as PW-4. He allegedly recorded the statements of the
persons present at the spot. No independent witness has, however, been
examined by the prosecution. He visited the spot. He is said to have
prepared a site plan, which was not brought on record. He did not seize
the Swaraj Mazada vehicle. He had merely taken a piece of the seat
which was said to be blood soaked but the report of serologist was not
made available. At the place of incident, he did not find any cartridge or
bullet which was unlikely. There exists a contradiction also in regard to
the place of arrest of the accused persons. They were said to have been
arrested in their village Moja Fulhar as disclosed by PW-1. PW-4,
however, states that all the accused persons were arrested from the taxi
stand of Gorakhpur on 13.3.1993. It is wholly unlikely that the accused
persons would come back to the place of occurrence.
The original general diary has not been produced despite the fact
that a specific defence was raised that the First Information Report was
ante-timed and ante-dated. The Circle Officer, whose office is situate at
about 1 and = kms. from the police station and was housed in the
building of Kotwali Police Station, saw the First Information Report only
on 11th March, 1993. It reached the court of magistrate much later, i.e.,
on 16.3.1993.
The statement of the complainant was not recorded in the general
diary. The Investigating Officer, despite the First Information Report,
did not visit the hospital immediately but did so only on 26.3.1993 to
record the statement of the injured. He did not explain as to why he could
not record the statement of the PW-2 earlier. The doctors who were
examined on behalf of the prosecution did not state that the injured was
not in a position to make any statement. The time when the recording of
the statement of PW-2 commenced and completed had not been recorded
in the general diary. He accepted that no certificate was obtained from
the doctor to show that PW-2 was unable to make any statement.
According to PW-1, the Investigating Officer reached Medical College at
8 a.m. the next morning and his statement was taken there; whereas
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according to the Investigating Officer, the statements of the witnesses
were recorded at the place of occurrence.
PW-2, in his statement, categorically stated that PW-1 came to see
him on 7.3.1993. They talked to each other. PW-2 had not seen the
alleged eye \026witnesses at the place of occurrence before the incident. It
was the witnesses, viz., PW-1, Dhanusdhari and Chhedi had allegedly
informed him that they had come to Sahabganj and witnessed the
incident. PW-1, it is interesting to note, did not say so. Dhanusdhari and
Chhedi, despite being relatives of PW-2 were not examined. The reason
for their non-examination has not been disclosed. PW-3 Dr. Birender
Kumar was on emergency duty. According to the doctor, thumb
impression of PW-2 was taken on the hospital records. Thumb
impression of Mangal Prasad had also been taken. PW-2, therefore, when
examined by the doctor, was not unconscious. There was no reason as to
why the thumb impression of the alleged eye witnesses and close relative
of PW-2, viz., PW-1 was not taken. In fact there is nothing on record to
show that PW-2 was taken to hospital by PW-1.
The injury of PW-2 shows that the shot has been fired from a close
range. The doctor in his evidence stated that the shot had been fired from
a distance of six paces.
The statement of PW-1 is full of contradictions. He in his First
Information Report did not disclose that immediately after the incident he
had gone to the District Hospital in the car sent by Mangal Prasad and
from there he took PW-2 to the Medical College. Had he done so, the
same would have been disclosed in the First Information Report.
The learned Sessions Judge passed the judgment of acquittal
opining that the presence of PW-1 was wholly doubtful. In view of the
distance of the place of incidence from his residence, it was further
opined that it was unlikely that he would travel so far for nothing. His
presence was also doubted having regard to the fact that PW-1 did not
take PW-2 to the District Hospital. According to PW-1, he took PW-2
directly to the Medical College whereas the evidences on record clearly
show that he had first been taken to the District Hospital and then the case
was referred to the Medical College.
No independent witness was examined. The enmity between the
PW-2 and the accused persons being admitted, the claim of the Appellant
being falsely implicated cannot be ruled out. His testimony was also
found to be doubtful by the learned Trial Judge in view of inherent
contradictions in his different versions. It is borne out from the records
that he made contradictory and inconsistent statements.
The learned Trial Judge also doubted the veracity of the story as
disclosed by PW-2. PW-2 was a driver. He had been going from place to
place. The accused persons who were four in number, therefore, could
not have any premeditation to come to the place of occurrence in the
night from a distance of 35 kms. to commit the offence. The fact that
PW-2 would park his vehicle at the place of occurrence could not have
been known to the accused persons. PW-2 stated that he had seen PW-1
and the other two witnesses whereas before the Investigating Officer he
had stated that it was PW-1 who told him thereabout.
The learned Trial Judge drew adverse inference for non-
examination of Mangal Prasad, employer of PW-2 and, particularly,
having regard to the fact that he had got him admitted in the hospital. Dr.
V.S. Mehrotra who had taken the X-ray of PW-2 was not examined. The
learned Trial Judge also found that motive for commission of the offence
was not established. It was further opined that the First Information
Report was ante-dated and ante-timed.
On an appeal having been preferred by the State against the said
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judgment of acquittal against all the four accused, leave was granted by
the High Court only against the Appellant herein.
The High Court in its impugned judgment, however, reversed the
findings of the learned Sessions Judge opining:
(i) There was nothing unusual if PW-1 thought to visit Gorakhpur
to make sundry purchases and meet PW-2.
(ii) He being an illiterate person could hardly make a distinction
whether it was 8 O’clock, 10 O’clock or 12 O’clock because all
the hours in the night have the same features till the sun rises.
(iii) PW-1 saw the occurrence as there was mercury light at the
scene of the occurrence and the victim suffered a close range
shot and, thus, there could not be any possibility of mistake in
their identity.
(iv) The statement of PW-1 that the shot had been fired from six
paces was considered to be a minor contradiction.
(v) If a witness is related to the victim, he would naturally be
interested in ensuring that the real culprit is punished or not
screened.
(vi) The Appellant must have injured the victim with premeditation.
We may at the outset like to observe that the High Court failed to
consider that it was dealing with a judgment of acquittal. It failed to
address itself the right question, viz., if two views are possible, the
appellate court shall not interfere with a judgment of acquittal. The High
Court evidently in its judgment failed to take into consideration several
relevant factors as was done by the Trial Court. The High Court also
failed to consider that the statements of PWs 1 and 2 were disbelieved in
relation to three other accused persons. No gun was seized. No cartridge
was found at the place of occurrence. The enmity between the parties
was admitted. The First Information Report was evidently ante-timed as
it could not have been sent to the Circle Officer after four days and to the
court of the learned magistrate after eight days.
Investigation of the case was conducted by PW-4 in a slip-shod
manner. PW-4 did not explain as to why the original general diary was
not produced. In terms of the Police Act, a copy of the statement of the
First Information Report is required to be handed over to the informant.
First Information Report was required to be taken down in the general
diary. Production of the general diary was necessary as the First
Information Report was said to be ante-timed and ante-dated. The
learned Trial Judge categorically opined the same to be so. No
explanation has been given as to why the independent witnesses whose
statements had allegedly been recorded were not examined. There was
no reason as to why the statement of the PW-2 was taken after such a
long time although according to the medical report he was not
unconscious as would be evident from the fact that his left thumb
impression was taken in the hospital register. If PW-2 was taken within a
few minutes to the District Hospital, the doctor incharge must have
informed the police. The Investigating Officer does not say so. He had
not made any attempt to apprehend the culprits immediately. There is
absolutely no reason as to why in a case of grave nature, a copy of the
First Information Report was sent to the Circle Officer, 4 days after the
incident and to the court 8 days thereafter. Section 157 of the Code of
Criminal Procedure mandates that the First Information Report should be
sent to the nearest magistrate within a period of 24 hours. The incident
took place at Gorakhpur which is a District Town. Section 147 of the
Police Act and the Rules framed thereunder provide for safeguards for the
accused persons from false implication. The legal requirements were not
complied with. This Court in Meharaj Singh v. State of U.P. [(1994) 5
SCC 188] stated the law, thus:
"FIR in a criminal case and particularly in a
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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, used, 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 CrPC, 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 PW 8."
[Emphasis supplied]
[See also Budh Singh & Ors. v. State of U.P., JT 2006 (11) SC
503]
In Budh Singh (supra), this Court noticed the regulations framed by
the State of U.P. in terms of the Police Act stating:
"The State of U.P. had made regulations in
terms of the Police Act, which are statutory in
nature. Regulation 97 provides as to how and in
what form the information relating to
commission of a cognizable offence when given
to an officer-in-charge of a police station, is to
be recorded. Such a First Information Report,
known as chik (check) report, should be taken
out in triplicate in the prescribed form and the
’true facts should be ascertained by a
preliminary investigation’. In the event a
written report is received, an exact copy thereof
should be made and the officer-in-charge of the
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station is required to sign on each of the pages
and put the seal of the police station thereupon.
The duplicate copy is to be given to the person
who brings the written report and the original
thereof must be sent to the Superintendent of
Police. Regulation 108 emphasizes the need of
maintaining the case diary stating that time and
place should be noted in the diary by the
Investigating Officer when beginning the
investigation; whereafter only, he should
inspect the scene of the alleged offence and
question the complainant and any other person
who may be able to throw light on the
circumstances. Regulation 109 provides that
the case diary must contain the particulars
required by Section 172 of the Code of Criminal
Procedure in sufficient detail so as to enable the
supervising officer to appreciate the facts."
The High Court failed to analyse the evidences on record. It
proceeded to pass its judgment on mere surmises and conjectures.
The High Court did not critically scrutinize the evidence of PWs 1
and 2. Having regard to the facts and circumstances of this case in our
opinion the Appellant was entitled to benefit of doubt. [See State of U.P.
v. Gambhir Singh and Others, (2005) 11 SCC 271]
It is no doubt true that PW-2 suffered a grievous injury. By reason
of the said fact alone, the judgment of acquittal could not have been
interfered with by the High Court.
For the reasons aforementioned, the impugned judgment cannot be
sustained which is set aside accordingly. The appeal is allowed.