CASE NO.: Appeal (crl.) 402 of 2006 PETITIONER: Mahmood & Anr RESPONDENT: State of U.P. DATE OF JUDGMENT: 15/11/2007 BENCH: Altamas Kabir & B. Sudershan Reddy JUDGMENT:
J U D G M E N T
B.Sudershan Reddy, J.
This is an appeal by special leave preferred by
the appellants Mahmood and Khaliq. The appellant
Mahmood has been convicted for the offence punishable
under Section 302 read with Section 149 of IPC and
sentenced to imprisonment for life. He has been also
convicted under Section 148 of IPC and sentenced to
undergo rigorous imprisonment for 1= year. The second
appellant has been convicted for the offence punishable
under Section 302 read with Section 149 and sentenced
to undergo life imprisonment. He has been further
convicted under Section 147 of IPC and sentenced to
undergo one year rigorous imprisonment and further
convicted under Section 379 of IPC and sentenced to
undergo rigorous imprisonment for a period of two
years.
Put briefly the prosecution case is as follows :
On 19th February, 1977 at about 4.45 p.m. the
accused Ram Samujh and Mahmood appellant No.1 both
armed with guns, Khalid appellant No.2, Bajrang and
one unidentified person armed with lathi assaulted
deceased Ram Singh at Galiyara near the fields of Ram
Sewak Ahir, while he was returning to his village
Badipur on his motorcycle. It was alleged that the
accused Ram Samujh and Mahmood fired four shots, as a
result of which the deceased fell down injured and
thereafter Khaliq snatched the licensed revolver
belonging to the deceased and all the five fled away
from the scene. Ram Singh died on the spot. The
incident of murderous attack was witnessed by Jaikirat
Singh (P.W.1) who is none other than the son of
deceased Ram Singh, Ram Ratan (P.W.2), resident of
village Sujerpur hamlet of Bodipur and Ram Adhar
(P.W.3). P.W.1 lodged written First Information Report
Ext.Ka.1 on the same day at 4.45 p.m. naming all the
accused and the manner in which the murderous attack on
the deceased had taken place. Jagdamba Prasad Dwivedi
(P.W.7) the office in-charge of Police station, Kothi
rushed to the scene of offence at about 6.00 p.m. and
found the dead body of Ram Singh and his motorcycle in
galiyara near the fields of Ram Sewak Ahir. The broken
pieces of the skull of the deceased and broken three
teeth were seized from the place of occurrence. The
discharged cartridge and tickli were also seized from
the spot. P.W.7 after preparing the Inquest Report
(Ext. Ka.7) sent the dead body for conducting post-
mortem. Dr. R.S. Katiyar P.W.5 performed the autopsy
on the dead body on 20th February, 1977 at about 9.45
a.m. and found as many as five ante-mortem gun shot
wounds. A cap of cartridge was extricated from the
brain of the deceased. Scalp bones were found
fractured. It was found that vital organs like
peritoneum, liver, kidneys were badly ruptured. In the
opinion of the doctor, the cause of death was due to
shock and hemorrhage resulting from ante-mortem
injuries. The investigation of the case was
transferred in the first week of March, 1977 to CBCID.
Inspector M.L. Gautam having completed rest of the
investigation submitted chargesheet against the
appellants and other accused.
The accused have denied the charges framed against
them and took the plea that they have been falsely
implicated due to enmity. The accused were accordingly
put on trial. The prosecution in order to establish
its case in altogether examined 8 witnesses and got
marked 39 documents as Exts. Ka.1-39. Amongst the
witnesses examined by the prosecution, Jaikirath Singh,
Ram Ratan and Ram Adhar (P.Ws. 1,2 and 3) respectively
were eye-witnesses to the murderous attack on the
deceased. The accused also led evidence and examined
Virendra Singh DW 1, Laxmi Narain Sinha DW 2 and Bindra
Charan DW 3.
The learned Sessions Judge upon appreciation of
the oral evidence and material on record found all the
accused guilty of the charges framed against them and
sentenced them to various terms of imprisonment. On
appeal the High Court of Allahabad confirmed the
conviction and sentences imposed by the learned
Sessions Judge. The appellants who are accused No.2
and 3 respectively alone have preferred this appeal by
special leave, challenging their conviction and
sentence.
We have elaborately heard the learned senior
counsel Shri Harjinder Singh and Shri R.C. Kohli as
well as Shri Shail Kumar Dwivedi, learned Additional
Advocate General for the State.
The learned senior counsel Shri Harjinder Singh
mainly contended that the FIR lodged by P.W.1 Jaikirath
Singh was ante-timed and ante-dated and brought into
existence after due deliberations and consultations
with the police.
According to the learned senior counsel, the
special report required to be sent to the superior
authorities and a copy of check FIR to the Illaqua
Magistrate as required under Section 157 of the Code of
Criminal Procedure was not sent by the police. That
apart arrest of Maiku Bhujwa before 3.40 p.m. and his
detention in the police station at 5.30 p.m. and also
the fact that some seizure memos, prepared by
Investigating Officer on the same day which do not
bear any crime number, are more than sufficient to
doubt the timings of FIR Ext.Ka.1.
There is no doubt that FIR in a criminal case and
particularly in murder case is a vital and valuable
piece of evidence for the purpose of appreciating
evidence led by the prosecution at the trial. FIR is
the earliest information regarding the circumstances
under which the crime was committed, including the
names of the actual culprits and the part played by
them, the weapons, if any, used as also the names of
the eye-witnesses, if any. Delay in lodging the FIR
may result in embelishment, which is a creature of an
after thought. This court in Meharaj Singh vs. State
of U.P. observed that 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 check is the receipt of
the copy of the FIR, called as 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. The second external
check equally important is sending of copy of the FIR
along with the dead body and its reference in the
Inquest Report.
This court while construing Section 157 of the
Code of Criminal Procedure in Anil Rai vs. State of
Bihar observed that the said provision is designed to
keep the Magistrate informed of the investigation of
such cognizable offence so as to be able to control
the investigation and if necessary to give appropriate
direction under Section 159 of the Code. But where
the FIR is shown to have actually been recorded without
delay and investigation started on the basis of the
FIR, the delay in sending the copy of the report to the
Magistrate cannot by itself justify the conclusion that
the investigation was tainted and the prosecution
insupportable.
This court further took the view that the delay
contemplated under Section 157 of the Code for doubting
the authenticity of the FIR is not every delay but only
extra-ordinary and unexplained delay. We do not
propose to burden this short judgment of ours with
various authoritative pronouncements on the subject
since the law is so well settled that delay in despatch
of FIR by itself is not a circumstance which can throw
out the prosecutions case in its entirety,
particularly in cases where the prosecution provides
cogent and reasonable explanation for the delay in
despatch of the FIR.
The same principle has been reiterated by this
court in Alla China Apparao & Ors. Vs. State of A.P.
wherein this court while construing the expression
forthwith in Section (1) of Code of Criminal
Procedure observed that it is a matter of common
experience that there has been tremendous rise in the
crime resulting into enormous volume of work, but
increase in the police force has not been made in the
same proportion. In view of the aforesaid factors, the
expression forthwith within the meaning of Section
157(1) obviously cannot mean that the prosecution is
required to explain every hours delay in sending the
first information report to the magistrate, of course,
the same has to be sent with reasonable despatch, which
would obviously mean within a reasonable possible time
in the circumstances prevailing. Therefore, in our
view, the first information report was sent to the
magistrate with reasonable promptitude and no delay at
all was caused in forwarding the same to the
magistrate. In any view of the matter, even if
magistrates court was closed by and the first
information report reached him within six hours from
the time of its lodgment, in view of the increase in
work load, we have no hesitation in saying that even in
such a case it cannot be said that there was any delay
at all in forwarding the first information report to
the magistrate.
It is not possible to lay down any universal rule
as to within what time the special report is required
to be despatched by the Station House officer after
recording the FIR. Each case turns on its own facts.
The learned senior counsel invited our attention
to the judgments of this court in Balaka Singh and ors.
Vs. State of Punjab and Datar Singh vs. The State of
Punjab in which this court highlighted the importance
of despatch of special report to the Illaqua
Magistrate. There is no dispute with the proposition
that it is the duty of the Station House Officer to
despatch Special Report to the Illaqua Magistrate as is
required under Section 157(2) of the Code of Criminal
Procedure. But there may be variety of factors and
circumstances for the delay in despatch of the FIR and
its receipt by the local Magistrate. The existence of
FIR and its time may become doubtful in cases where
there is no satisfactory and proper explanation from
the investigating agencies.
In Budh Singh & Ors. Vs. State of UP , this court
while making reference of the regulations made by the
State of U.P. in terms of the U.P. Police Act held the
regulations to be statutory in nature. The
regulations provide the procedure 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 and sent to
superior officers. The regulations are procedural in
nature which are meant for the guidance of the police.
The regulations do not supplant but supplement the
provisions of Code of Criminal Procedure.
We shall now consider the facts of the present
case and apply the law declared by this court in more
than one decision.
It is in the evidence of Jaikirath Singh (P.W.1)
that he rushed to the police station by a bicycle and
lodged written FIR Ext.Ka.1 within 1 = hours of the
incident. The distance between the place of occurrence
and the police station is about 9 kms. It is in his
evidence that he took about 15-20 minutes to prepare
his report and nobody advised him in preparation of the
report. He went to the police station all alone. We
do not find any reason whatsoever to disbelieve this
version given by PW 1. There is nothing unnatural and
unusual in PW 1 stating the details of the incident in
his written FIR Ext.Ka.1. The behavioral pattern and
response of individuals in a given situation may differ
from person to person. From a bare reading of the FIR
Ext.Ka.1 we do not find anything artificial in it. It
cannot be said to be a contrived one brought into
existence after due deliberations as contended by the
counsel for the appellant.
Be it noted, Jagdamba Prasad Dwivedi, PW 7, the
officer in-charge of police station, Kothi having
received the relevant papers in village Sethmau, rushed
to the place of occurrence and reached there at about
6.00 p.m. where he found the dead body of Ram Singh.
The inquest report Ext.Ka.7 was prepared on the spot
and the body was sent for post-mortem examination. The
Inquest Report Ext.Ka.7 specifically refers to the
lodging of FIR by PW 1 at 4.45 p.m. on 19.02.1977.
The mere fact that crime number is not mentioned in the
Inquest Report is of no significance.
The sequence of events, namely, that Jagdamba
Prasad Dwivedi -PW 7 reached the scene of offence at
6.00 p.m. and prepared Inquest Report duly mentioning
about lodging of the FIR by PW 1 at 4.45 p.m. on 19th
February, 1977 followed by despatch of the dead body
to the hospital which reached the hospital by 9.30 p.m.
and the post-mortem examination at 9.30 a.m. on 20th
February, 1977 in clear and unequivocal terms reveal
that the FIR was lodged at the time it is stated to
have been recorded. It cannot be treated as an ante-
timed and ante-dated one. It is required to note that
20th February, 1977 being Sunday, the Illaqua Magistrate
received special report on 21st February, 1977. The
special report was despatched by dak.
Arrest of one Maiku Bhujwa on 19th February, 1977
at 3.00 p.m. in Crime No.17 under Section 147 etc. and
his being lodged in police station at about 5.30 p.m.
by two constables Ram Naresh and Ram Tool Misra as
shown in Exts. Ka. 3 and 4 has been used as a sheet
anchor to challenge the time of FIR Ext.Ka.1 by saying
that if the two constables were summoned by Station
Officer, on reaching the place of occurrence, then in
all probability Station Officer reached the place of
occurrence by 3.00 p.m. even before the FIR was issued.
The High Court adverting to this aspect of the
matter observed the investigating officer Sri Dwivedi
does not say that he arrested Maiku Bhujwa. Moreover,
arrest of Maiku was not in connection with the murder
in question, but was in connection with another case.
Most importantly, what could have been the object
behind delaying the time of occurrence of reaching Sri
Dwivedi, on the spot, has not been made clear by Sri
Kidwai. We are of the view that arrest of Maiku at
about 3.00 p.m. and his lodging in Hawalat at 5.30 p.m.
by two constables, does not militate against the time
of FIR Ext.Ka-1 as shown in police papers. It is also
possible that some manipulation was made in the context
of the arrest of Maiku, to make the case against him
more sound.
We do not find any fallacy or error in the
reasoning of the High Court. For the aforesaid reasons
we do not find any substance in the submission made by
the learned senior counsel about the ante-time and
ante-dating of the FIR. The findings in this regard as
recorded by Sessions Judge as well as the High Court
are supported by acceptable evidence and there is no
reason to take a different view. It is well settled
that this court normally does not reappreciate the
evidence unless it is shown that the findings are
patently erroneous or perverse in nature. However, in
order to satisfy ourselves we have looked into the
evidence of PWs 1,2,3 and 7 and we are satisfied that
the FIR was lodged on the date and time as stated by
the prosecution.
The prosecution story entirely rests upon the
direct evidence of PW Nos. 1, 2 and 3. PW-1 is none
other than the son of deceased Ram Singh. He was
present in his fields situated nearby the place of
occurrence where his father was attacked. Jaikirat
(PW-1) no doubt was doing his part time G.N.S. in
plantation at Lucknow but that itself would not make
his presence doubtful at the scene of offence on the
fateful day. The defence did not elicit anything in
the cross-examination casting any doubt about the
presence of PW-1 at the scene of offence. There is
nothing unnatural about the conduct of PW-1 at the
scene of occurrence. He gave detailed version as to
the manner of assault and the role played by each of
the accused. The names of PW-2 and PW-3 were also
mentioned as eye-witnesses in the First Information
Report itself. In the circumstances, PW-2 and PW-3
cannot be treated as chance witnesses. The Trial Court
and as well as the High Court did not commit any error
in relying on the testimony of PW-2 and PW-3 as eye-
witnesses of the occurrence which fully stands
corroborated with the testimony of PW-1. Be that as it
may, there was not even a suggestion to PW-2 and PW-3
that they had animosity towards the accused persons.
They are independent witnesses and there is no reason
for them to speak against the accused.
However, it was strenuously urged that the
presence of Jaikirat (PW-1) at the scene of offence is
highly doubtful as he made no attempt whatsoever to
save his father from being further assaulted. We find
no substance in this contention. It is in the evidence
of Jaikirat (PW-1) that all the four shots were fired
in quick succession and at that moment PW-1 was at some
distance from the actual place of attack. Be it noted
that at least 2 accused were armed with fire-arms and
one with lathi and they were using the weapons with
all impunity. In such circumstances, Jaikirat (PW-1)
may not have mustered his courage to jump into the fray
and risk his own life. It is very difficult to predict
or express any opinion as to what could have been
normal or natural conduct of a person in such a
situation. Response of individuals in such situations
may differ from person to person. It is not possible to
reject the evidence or doubt the presence of PW-1 on
that ground.
The post-mortem examination of the deceased Ram
Singh was performed by Dr.R.S.Katiyar (PW-5). The
post-mortem report is exhibit Ka-4. The Medical Officer
found the following ante-mortem injuries on the person
of the deceased:
1. A gun shot wound (wound of entry) 3 cm
x 1 cm. Over left side of face just
above the left side of the lower lip.
Wound of Ext. 3 cm x 2 cm. Over the
right parietal bone, 7 cm. Above the
right ear.
2. A gun shot wound 2.5 cm x 1 cm. Over
the right side of face below max.
prominence.
3. Multiple gun shot wounds in an area of
13 cm x 11 cm. Over the right side of
back below the inferior angle of
scapula.
4. A gun shot wound (wound of entry) 2 cm
x 2 cm over the right side of the back
2 cm. Right to 12th thoracic vertebra.
5. Multiple gun shot wounds in an area of
9 cm. X 4 cm. Over the back and middle
of right arm.
Relying on his evidence the learned counsel for
the appellant contended that the oral account as given
by PW-1, 2 and 3 is at variance with medical evidence
available on record. It is contended that while
according to the eye-witnesses all the four shots were
fired from the gun, from right side of the victim,
wound no.1 (wound of entry) was on the left side of the
face and caused by bullet and this evidence belies the
claim of eye witnesses that they saw the assault on Ram
Singh. It is true that to a pointed query in cross-
examination as regards the nature of injury no. 1, the
Medical Officer stated that the said injury was caused
by bullet only. The learned counsel contended that
weapons in the hands of the accused even according
to PW-1 were of 12 bore guns and not any pistols or
revolvers. No bullet injury could have been caused with
the fire-arms that were alleged to be in the hands of
the assailants. We find no substance in this
submission. The Medical Officer is not ballistic
expert. He was not expected to answer as to whether
injury no. 1 could have been caused by bullet alone.
His opinion to that extent is of no consequence. It is
well settled that medical evidence is only an evidence
of opinion and it is not conclusive and when oral
evidence is found to be inconsistent with the medical
opinion, the question of relying upon one or the other
would depend upon the facts and circumstances of each
case. No hard and fast rule can be laid down therefor.
The ocular evidence if otherwise is acceptable has to
be given importance over medical opinion. However,
where the medical evidence totally improbabilises the
ocular version the same can be taken to be a factor to
affect credibility of the prosecution version. We are
not inclined to place any reliance upon the opinion of
the Medical Officer that the injury no.1 could have
been caused only with bullet since he is not a
ballistic expert. This part of the evidence of the
Medical Officer cannot be considered to be the opinion
of an expert and the same has no evidentiary value. It
is not possible to disbelieve the evidence of PW-1, 2
and 3 and their presence at the scene of occurrence
based on the medical evidence. The High Court rightly
observed that the controversy as regards injury No. 1
and whether the same could have been caused by bullet
or pellet to be without any basis.
The learned counsel for the State rightly
contended that in case of attack by members of un-
lawful assembly on the victim in furtherance of common
object, it is not necessary for the prosecution to
establish overt-act done by each accused. It is
required to be noticed that Ram Smujh (A-1) who had
fired two shots, convicted by the Sessions Court, did
not even challenge his conviction in the High Court.
The appellants have been rightly convicted under
Section 302 read with aid of Section 149 of IPC. PW-5
in his evidence stated that all the injuries
sustained by the deceased were from gun. It is further
stated that from the body of deceased one bullet, one
cover tikli, two dat and 40 chare shots were
taken out, put in packet and sealed .. It is also
stated in his evidence that injuries caused on the
body of the deceased were sufficient in the normal
course to cause death. This part of the medical
evidence if juxtaposed with the oral evidence of PW-1,
2 and 3 it becomes unnecessary to go into the question
as to which accused caused what injury and which was
a fatal one. Once a membership of an unlawful assembly
is established, it is not incumbent on the prosecution
to establish any specific overt-act to any of the
accused for fastening of liability with the aid of
section 149 of the IPC. Commission of overt-act by each
member of the unlawful assembly is not necessary. The
common object of the unlawful assembly of the accused
in the present case is evident from the fact that some
of them were armed with deadly weapons. None of them
were curious onlookers or spectators to the macabre
drama that was enacted on 19.2.1977 at 3.30 p.m. at
galiyara, village Badipur.
For the aforesaid reasons, we find no merit in
this appeal. The appeal is accordingly dismissed.
