Crl.A. No.576-DB of 1998 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl.A. No.576-DB of 1998
DATE OF DECISION: JANUARY 27, 2009
Shokeen Singh
.....APPELLANT
Versus
The State of Punjab
....RESPONDENT
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
---
Present: Mr.Preetinder Singh Ahluwalia, Advocate,
for the appellant.
Mr.Rajesh Bhardwaj, Addl.AG, Punjab,
for the respondent.
Mr.Chanchal K.Singla, Advocate,
for the complainant.
..
SATISH KUMAR MITTAL, J.
Appellant-Shokeen Singh has filed this appeal against his
conviction and sentence passed by the Additional Sessions Judge, Fatehgarh
Sahib vide judgment dated 27.10.1998, for committing the offence under
Sections 302 IPC in Sessions case No.65/10.9.1996 arising from FIR No.29
dated 4.8.1996 registered at Police Station Khamanon. The appellant has
been convicted under Section 302 IPC and sentenced to undergo rigorous
imprisonment for life and a fine of Rs.2000/-, in case of default of payment
of fine, further rigorous imprisonment for a period of six months.
2. In this case, the aforesaid FIR (Ex.PC/1) was registered at 6.45
p.m. on the basis of the statement (Ex.PC) made by Karnail Singh, father of
Crl.A. No.576-DB of 1998 -2-
deceased (Kamaljit Kaur aged 18 years) to SI Harbans Singh (PW10) at
4.30 p.m. on 4.8.1996 in Civil Hospital, Fatehgarh Sahib. In his statement,
Karnail Singh (PW3) stated that he was residing in Village Kheri Naur
Singh. He was having three children. Elder was Darshan Singh, younger to
him was daughter Manjit Kaur and youngest to her was Kamaljit Kaur
(deceased). He further stated that on the date of the occurrence he and his
wife Sukhdev Kaur went to the house of Mehar Singh (PW8) in connection
with the marriage of sister’s daughter of Mehar Singh. His daughter
Kamaljit Kaur was alone in the house. When about 12.30 p.m. he along with
his wife returned from the house of Mehar Singh, he heard noise coming
from his house. When they entered in their house from the door towards the
street, Shokeen Singh accused ran away towards the pucca road through
their outer door. His daughter Kamaljit Kaur was vomiting and she told
them that Shokeen Singh had entered in their house after crossing the wall;
threatened her with dire consequences; grappled with her; and forcibly put
some poisonous medicine in her mouth. He further stated that then they took
their daughter Kamaljit Kaur to Government Hospital, Fatehgarh Sahib and
got her admitted. When the condition of his daughter became serious, she
was referred to Rajindra Hospital, Patiala, but before she was taken to the
said hospital, she had died. He stated that the motive behind the alleged
occurrence was that he and Bhag Singh (father of accused Shokeen Singh)
being from the brotherhood were having strained relations since long and
due to this Shokeen Singh had administered some poisonous substance to
his daughter, as a result of which she died.
3. In this case, the Special Report of the aforesaid FIR was alleged
Crl.A. No.576-DB of 1998 -3-
to have been sent to the Illaqa Magistrate on the same day, which was
received on the next day, i.e., 5.8.1996 at 10.00 a.m. Further, as per the
record, Dr.Balwinder Singh (PW7) sent ruqa (Ex.PK) to the police at 1.10
p.m. intimating that Kamaljit Kaur was brought to the hospital as a case of
suspected corrossive poisoning. In the subsequent ruqa (Ex.PM) sent to the
police at 3.30 p.m., it was mentioned that she had expired at 3.15 p.m.
4. The post-mortem of the deceased was conducted on 5.8.1996
at 11.45 a.m. by a Board consisting of three doctors. Dr. Salinder Kaur
(PW6), who conducted the post-mortem of the deceased, had stated before
the Court that the autopsy of the deceased was conducted by a Board of
three doctors. The post-mortem report of the deceased is Ex.PF. During
post-mortem examination, no injury mark suggestive of struggle was
noticed on face, lips, breasts, neck, thigh, ext. genitalia or elsewhere on
body of the deceased. On P/V examination, it was noticed that there was no
injury mark on thighs, ext. genitalia. Hymen was absent. Introitos admitting
two fingers loosely suggesting habitual of intercourse. Five vaginal swabs
taken from introitus ant.fx.post fornix, left lat.fx. and right lat.fx.,
respectively and sent for chemical examination. The sample of Viscera was
taken and also sent for chemical examination. The probable time between
poisoning and death was given within 6-8 hours and probable time between
death and post-mortem was 24 hours. After going through the reports of the
Chemical Examiner (Ex.PH) with regard to analysis of Viscera and (Ex.PJ)
with regard to vaginal swabs, she opined that the death of Kamaljit Kaur
was due to chlorocompound a group of insecticide, which was sufficient to
cause death in the ordinary course of nature. She further opined that from
Crl.A. No.576-DB of 1998 -4-
the report of the Chemical Examiner (Ex.PJ) vide which semen was found
on Exhibit 1,3 and 5, and also on the vaginal examination of her body, it
could be said with certainty that she was subjected to sexual intercourse
before her death. However, it could not be said whether this sexual
intercourse was with or without her consent.
5. On 7.8.1996, the accused himself surrendered to the police and
after completion of investigation, the challan was filed and charge was
framed against him under Section 302 IPC. The accused pleaded not guilty
to the charge and claimed trial.
6. In support of its case, the prosecution examined 12 witnesses,
including PW6-Dr.Salinder Kaur, PW7-Dr.Balwinder Singh, PW3-Karnail
Singh (complainant), PW4-Sardara Singh, PW8-Mehar Singh and PW10-
Harbans Singh, Investigating Officer, and also exhibited certain documents.
After recording the evidence of the prosecution, the trial Court put all the
incriminating material to the accused while recording his statement under
Section 313 Cr.P.C. The accused pleaded false implication and claimed to
be innocent.
7. After considering the evidence led by the prosecution, hearing
the learned counsel for both the parties and after appreciating the evidence
available on the record ,and coming to the conclusion that the prosecution
has fully proved its case beyond any reasonable doubt, the trial Court
convicted and sentenced the accused under Sections 302 IPC as indicated
above. Hence this appeal.
8. Learned counsel for the appellant submitted that in this case
there is no direct evidence to support the prosecution allegation that the
Crl.A. No.576-DB of 1998 -5-
appellant had administered poison to the deceased. All the three witnesses,
namely, PW3-Karnail Singh, PW4-Sardara Singh and PW8-Mehar Singh
have stated that the deceased told them that the appellant in absence of her
parents, had entered into the house after crossing the wall and he threatened
her with dire consequences. It was also told that the appellant grappled with
her and forcibly put some poisonous medicine in her mouth. The learned
counsel submitted that the statement of these witnesses are totally
inconsistent with the medical evidence brought on record by the
prosecution. In this regard, learned counsel referred to the statement of
PW6-Dr.Salinder Kaur where she had stated that during post-mortem
examination, no injury mark suggestive of struggle, was seen on face, lips,
breasts, neck, thigh, ext. genitalia or elsewhere on body of the deceased. On
P/V examination, it was noticed that there was no injury mark on thighs,
ext. genitalia. Hymen was absent. Introitos admitting two fingers loosely.
The learned counsel also referred to the statement of PW4-Sardara Singh,
where he had stated that he did not notice any injury mark on any part of the
body of deceased Kamaljit Kaur and there was no sign on her body to show
the violence. Learned counsel stated that this evidence clearly indicates that
the appellant did not grapple with the deceased and put any poisonous
substance in her mouth by force.
9. Secondly, learned counsel submitted that there was a delay in
recording the FIR, which clearly suggests that the FIR was ante-timed in
order to rope the appellant in the false case after due deliberations. In this
regard, learned counsel submitted that the alleged occurrence had taken
place on 4.8.1996 at 12.30 p.m. The deceased was immediately taken to the
Crl.A. No.576-DB of 1998 -6-
hospital. The doctor sent ruqa (Ex.PK) to Incharge, Police Station,
Fatehgarh Sahib at 1.10 p.m. informing him regarding the arrival of
Kamaljit Kaur in the Emergency OPD as a case of suspected corrossive
poisoning. After her death, ruqa (Ex.PM) was sent to the police at 3.30 p.m.
wherein it was mentioned that Kamaljit Kaur (deceased) was brought to the
hospital due to poisoning and she had expired at 3.15 p.m. The statement of
the complainant (Ex.PC) was recorded at 4.30 p.m. and FIR was registered
at 6.45 p.m. He further stated that the Special Report was received by the
Judicial Magistrate on the next date, i.e. 5.8.1996 at 10.00 a.m. The Inquest
Report was also prepared on the next date, i.e., 5.8.1996, which was
received by the doctor at the time of post-mortem. While referring to these
facts, learned counsel argued that these facts clearly indicate that the FIR in
question had been ante-timed in order to falsely implicate the appellant for
the offence which was not committed by him. Learned counsel submitted
that the prosecution has given no explanation for the aforesaid delay. Even
HC Avtar Singh, who had delivered the Special Report to the Magistrate,
has not been examined. Learned counsel further pointed out that when the
patient (deceased) was brought to the hospital and was initially treated at
Civil Hospital, Fatehgarh Sahib, the message (Ex.DA) was flashed from
Police Station, Fatehgarh Sahib to Police Station, Khamanon to the effect
that patient Kamaljit Kaur had taken poison and she was admitted in Civil
Hospital, Fatehgarh Sahib. Learned counsel further submitted that in the
Inquest Report itself it was not mentioned that the appellant had grappled
with the deceased and put some poisonous substance in her mouth. Learned
counsel submitted that for the first time the said prosecution version came to
Crl.A. No.576-DB of 1998 -7-
light at the time of post-mortem examination of the deceased as PW7-
Dr.Balwinder Singh in his statement before the Court stated that the version
of the prosecution (that the deceased was given poison by the appellant)
came for the first time in the post-mortem report. Learned counsel submitted
that this is the reason that no case history, no Bed Head Ticket, no case
summary of the deceased was produced by the prosecution. Thus, the
prosecution version was not a spontaneous version and it was concocted at
the time of post-mortem of the deceased and the FIR etc., which were
prepared on the next date, i.e., 5.8.1996 before the conduct of the post-
mortem, were ante-dated, i.e., 4.8.1996.
10. The learned counsel further pointed out that admittedly at Civil
Hospital, Fatehgarh Sahib, doctor recorded the statement of Kamaljit Kaur.
This fact has been admitted by PW8-Mehar Singh in his cross-examination
where he has stated that doctor recorded the statement of Kamaljit Kaur in
writing by his own hand in the emergency Ward in his presence and in
presence of Karnail Singh (father of the deceased). Similarly, PW3-Karnail
Singh has also admitted the said fact that a statement of Kamaljit Kaur was
recorded by the doctor on which the doctor did not obtain his signatures.
But the said dying declaration has been withheld by the prosecution for the
reasons best known to it. When the prosecution has withheld the true
version from the court, the adverse inference should have been drawn
against it under Section 114(g) of the Indian Evidence Act.
11. Learned counsel further argued that as per the medical evidence
available on record, just before her death the deceased was subjected to
sexual intercourse. In her statement, Dr.Salinder Kaur (PW6) had stated
Crl.A. No.576-DB of 1998 -8-
with emphasis that keeping in view the report of the Chemical Examiner
(Ex.PJ) vide which semen was found on Exhibit 1,3 and 5, and also on the
vaginal examination, it could be said with certainty that she was subjected
to sexual intercourse before her death. Learned counsel further submitted
that the Investigating Officer had also stated before the Court that during the
investigation, it came to his notice that the appellant had committed sexual
intercourse with the deceased before her death. During investigation, it also
came to light that appellant Shokeen Singh was having love affair with the
deceased and he used to have sexual intercourse with her. Learned counsel
submits that the prosecution version does not explain this fact, which
creates a reasonable doubt about the whole of the prosecution version.
12. Learned counsel further argued that if the appellant had given
the poisonous substance to the deceased and when the said fact was
narrated by the deceased to her father, the normal reaction of the father
would have been to inform the police immediately, but in the instant case in
spite of the fact that the Police Station was situated near the house of the
complainant, he did not inform the police. The said fact creates a doubt in
the prosecution version. He further pointed out that at one point of time in
his statement before the Court PW3-Karnal Singh had stated that he himself
went to the Police Station to lodge the report at about 12.45 p.m. on foot. He
was all alone when he went to the Police Station. He further stated that
Ajaib Singh, SI, who was Incharge of the Police Station, has recorded his
statement. This version of the witness is contrary to the prosecution case
because as per the prosecution version, the statement of the complainant
was recorded in the hospital by SI Harbans Singh. In cross-examination,
Crl.A. No.576-DB of 1998 -9-
PW3-Karnail Singh had stated that he did not go straight-away to the
hospital and only his wife had gone to the hospital along with his daughter.
This fact, which is a material contradiction, creates a doubt in the
prosecution version and trustworthiness of this witness. The learned counsel
argued that the ocular version of the three prosecution witnesses, i.e., PW3-
Karnail Singh, PW4-Sardara Singh and PW9-Pritpal Singh has not been
corroborated by any other witness or any evidence available on the record.
13. In the last, learned counsel submitted that in this case there is
no direct evidence to the effect that the appellant had forcibly given
poisonous substance to the deceased. The entire case of the prosecution is
based on the circumstantial evidence. He submitted that in such case the
prosecution has to establish a strong motive for committing the alleged
offence, but in this case the prosecution has failed to prove any motive for
committing the alleged crime. As per the prosecution version, the motive for
committing the crime was that there was strained relations between the
complainant and father of the appellant. Learned counsel submitted that as
per the statement of PW3-Karnail Singh, appellant is his real cousin.
Merely because the relations between Karnail Singh and father of appellant
Bhag Singh were strained, it is not probable that the appellant would have
given poisonous substance to the deceased by force after crossing the wall
of the house. Learned counsel submitted that from the evidence it appears
that when the father of the deceased had seen the deceased in a
compromising position with the appellant and when the appellant had run
away from the spot, the father of the deceased might have rebuked his
daughter for having physical relations with the appellant, the cousin of her
Crl.A. No.576-DB of 1998 -10-
father Karnail Singh, due to which she might have committed suicide and
later on, on the next date the alleged version was concocted by ante-timing
the FIR.
14. On the other hand, learned State counsel, while relying upon
the statements of the prosecution witnesses, out of whom two are
independent witnesses, the reports of the Chemical Examiner as well the
opinion of Dr. Salinder Kaur (PW6) that the death was due to poison,
contended that the trial Court has proved beyond any reasonable doubt that
the appellant had committed the murder of Kamaljit Kaur, therefore, he has
rightly been convicted and sentenced for the offence punishable under
Section 302 IPC.
15. After hearing the counsel for the parties and going through the
evidence led by the prosecution, including the defence of the appellant, and
other documents available on the record, we are of the opinion that in this
case the prosecution has failed to prove the allegations beyond a reasonable
doubt that the appellant had threatened Kamaljit Kaur (deceased) with dire
consequences, grappled with her and forcibly put some poisonous substance
in her mouth.
16. From the medical evidence available on the record, it has been
established that Kamaljit Kaur (deceased) had died due to consumption of
chlorocompound poison. Now the question for determination is whether the
appellant had poured poisonous substance in the mouth of Kamaljit Kaur
(deceased) by force in the manner as alleged or she herself had consumed
the same and committed suicide. In this case, there is no direct evidence for
proving the fact that the appellant had given the poisonous substance to the
Crl.A. No.576-DB of 1998 -11-
deceased by force. In order to prove that the appellant gave poisonous
substance to the deceased by force on the day of the occurrence, the
prosecution has examined three witnesses, namely, PW3-Karnail Singh
(father of the deceased), PW4-Sardara Singh (a resident of the village) and
PW8-Mehar Singh (friend of PW1-Gurmail Singh). All these witnesses
have stated that when they reached in the house of Karnail Singh, they saw
that Kamaljit Kaur (deceased) was vomiting while lying on the cot. She was
crying that Shokeen Singh son of Bhag Singh (appellant) had administered
some poisonous medicine to her forcibly after he had grappled with her.
These witnesses further stated that a Kirpan, a green colour dupatta and a
glass containing the poisonous medicine, were lying near the cot. From the
statements of these witnesses, it is clear that they had not seen appellant
Shokeen Singh putting some poisonous substance forcibly in the mouth of
the deceased. Their version is that the deceased was saying that after
crossing the common wall, the appellant threatened and grappled with her
and forcibly put some poisonous medicine/substance in her month. There is
a material contradiction in the statement of PW3-Karnail Singh and the
prosecution version. As per the statement of PW3-Karnail Singh, after the
alleged occurrence, he went to the Police Station to lodge the FIR, whereas
his wife had gone to the hospital along with his daughter. He has
categorically stated that he did not straight-away go to the hospital. He has
further stated that Ajaib Singh, SI (PW5), who was Incharge of the Police
Station, had recorded his statement. On the other hand, SI Harbans Singh
had stated that he had recorded the statement of PW3-Karnail Singh in the
hospital on the basis of the FIR (Ex.PC/1) was registered. In our opinion,
Crl.A. No.576-DB of 1998 -12-
this is a material contradiction which reflects on the truthfulness of the
statement of this witness. Further, this version given by all the three
witnesses is not only improbable but is also inconsistent with the medical
evidence. If the appellant had grappled with the deceased and forcibly put
some poisonous substance in her mouth, then certainly there would have
been some injuries on the body of the deceased. If a person is putting by
force some poisonous substance in the mouth of a person, normally such
person would obstruct the person from giving him poisonous substance by
force. In this case, as per the prosecution version, it is not only that the
poisonous substance was given forcibly but before doing so the appellant
had grappled with the deceased. As per the medical evidence, there was no
injury mark on the body of the deceased.
17. In addition to the above material inconsistencies, there are other
circumstances which go against the prosecution version. Admittedly, PW3-
Karnail Singh and PW8-Mehar Singh had admitted in their cross-
examinations that when Kamaljit Kaur (deceased) was lying in the hospital,
the doctor, who was treating her, had recorded her statement in writing. But
the said statement of the deceased, which could have been best piece of
evidence being her dying declaration, has been withheld by the prosecution
for the reasons best known to it. The argument of the learned State counsel
that PW6-Dr.Salinder Kaur in her statement had stated that at 1.10 p.m.
when Kamaljit Kaur (deceased) was brought to the hospital and when she
was conscious she was saying that she was forced to consume some
corrossive poison alleged to have been given by Shokeen Singh (appellant),
cannot be accepted because the said witness never attended the patient when
Crl.A. No.576-DB of 1998 -13-
the patient was brought to the hospital. She had only conducted the post-
mortem examination. Not only this, the prosecution has also not placed on
record the patient’s case history, Bed Head Ticket and case summary of the
deceased. It seems that those documents were not produced because those
might have gone against the prosecution. Further, when the patient was
brought to the hospital and was initially treated at Civil Hospital, Fatehgarh
Sahib, the message (Ex.DA) was flashed from Police Station, Fatehgarh
Sahib to Police Station, Khamanon to the effect that patient Kamaljit Kaur
had taken poison and she was admitted in Civil Hospital, Fatehgarh Sahib.
18. There is another important fact which further creates a doubt in
the prosecution version, i.e., the prosecution has not explained at all the
evidence came on the record about the fact that just before her death the
deceased was subjected to sexual intercourse. PW6-Dr.Salinder Kaur in her
statement in the Court had stated that after receipt of the report of the
Chemical Examiner and other factors noticed at the time of post-mortem
examination, she could say with certainty that before her death Kamaljit
Kaur (deceased) was subjected to sexual intercourse. Further, PW10-SI
Harbans Singh, Investigating Officer had stated before the Court that during
the investigation, it came to his notice that the appellant had committed
sexual intercourse with the deceased before her death and also that he was
having love affair with the deceased and he used to have sexual intercourse
with her. The non-explanation of the said fact by the prosecution creates a
reasonable doubt about the happening of the occurrence in the manner as
narrated by the prosecution witnesses.
19. In the instant case, the prosecution version rests only on the
Crl.A. No.576-DB of 1998 -14-
circumstantial evidence. In such cases, the prosecution has to establish a
strong motive for committing the alleged offence. In the present case, the
alleged motive is that PW3-Karnail Singh (complainant) and father of the
appellant were having strained relations. It has come on record that the
complainant and the appellant are cousins (as fathers of both of them were
real brothers). It has also come on record that the house of the appellant is
adjoining the house of the complainant having a common wall in between
them. In our opinion, the alleged motive does not seem to be probable that
merely because fathers of the appellant and complainant were having
strained relations, the appellant would give poisonous substance to his
daughter by force. Further, the alleged motive loses its significance when
during the investigation it has come on record that the deceased and the
appellant were having love affair and the appellant used to have sexual
intercourse with the Kamaljit Kaur (deceased). In view of the above-said
weak motive, which even has not been proved by examining any witness,
the prosecution version appears to be doubtful that the appellant had put
some poisonous substance by force in the mouth of the deceased.
20. There are some other important facts available on the record of
the case which clearly indicate that in this case the FIR was ante-timed in
order to rope the appellant in the false case after due deliberations.
Undisputedly, the occurrence had taken place on 4.8.1996 at 12.30 p.m. The
deceased was immediately taken to the hospital. The ruqa (Ex.PK) was sent
to Incharge, Police Station Fatehgarh Sahib at 1.10 p.m. giving information
about the arrival of Kamaljit Kaur in emergency Ward as a case of
suspected corrossive poisoning. After her arrival, looking into her serious
Crl.A. No.576-DB of 1998 -15-
condition, she was referred to Rajindra Hospital, Patiala vide slip (Ex.PL)
at 2.15 p.m. After her death at 3.30 p.m., another ruqa (Ex.PM) was issued
mentioning the death of Kamaljit Kaur due to poisoning. Thereafter, the
statement (Ex.PC) of PW3-Karnail Singh (complainant) was recorded at
4.30 p.m. and FIR was registered at 6.45 p.m. Undisputedly, the Special
Report was received by the Judicial Magistrate on the next date, i.e.
5.8.1996 at 10.00 a.m. In this case, the Inquest Report (Ex.PA), though
shown to have been prepared on 4.8.1996, but it was received by the doctor
only on 5.8.1996 at 8.40 a.m. along with application (Ex.PG) for
constitution of the board for the purpose of conducting post-mortem of the
deceased. It is interesting to note that in the Inquest Report, the prosecution
version, which was given in the statement (Ex.PC) of the complainant,
which was recorded at 4.30 p.m. on 4.8.1996, has not been mentioned at all.
In the entire Inquest Report (Ex.PA), it has not been stated that the deceased
was given the poisonous substance by force by the appellant. PW7-
Dr.Balwinder Singh, who attended the patient and conducted the post-
mortem of the deceased, has categorically stated that before the post-
mortem of the deceased, the prosecution version that the deceased was
given poisonous substance by the appellant by force, did not come to their
notice. These facts, in our opinion, indicate that in this case the FIR was
ante-timed. The Supreme Court in Meharaj Singh v. State of U.P., 1994(5)
SCC 188 which has been followed in Thanedar Singh v. State of M.P., 2002
(1) SCC 487, has observed as under:-
“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
Crl.A. No.576-DB of 1998 -16-upon; prompt lodging of the FIR is to obtain the earliest
information regarding the circumstances 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 eye-witnesses, 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
Crl.A. No.576-DB of 1998 -17-
proceedings were over at the spot by PW8.”
21. As per the aforesaid judgment, there are two checks to ascertain
the fact whether an FIR was ante-timed or not. In the present case, if we
apply both the checks, then it appears that the FIR was not lodged at the
time it was alleged to have been registered. In this case, the Special Report
was received by the Judicial Magistrate on 5.8.1996 at 10.00 a.m. HC Avtar
Singh, who had delivered the Special Report to the Magistrate, has not been
examined to give satisfactory explanation for the delay in delivery of the
Special Report by the Judicial Magistrate. The Inquest Report though shown
to have been prepared on 4.8.1996, does not contain the detail of the FIR,
gist of the statement recorded and the fact that the appellant had grappled
with the deceased and put some poisonous substance in her mouth. Thus
from the above facts it appears that the FIR was recorded later on after due
deliberations and consultations, and was then ante-timed to give colour to
the prosecution case. This fact of ante-timing the FIR creates a strong
reasonable doubt about the false implication of the appellant while twisting
the version that the appellant had grappled with Kamaljit Kaur (deceased)
and forcibly put some poisonous substance in her mouth.
22. In view of the aforesaid facts and circumstances, whether the
appellant is entitled for the benefit of a reasonable doubt. In administration
of criminal justice, an accused is presumed to be innocent unless such a
presumption is rebutted by the prosecution by producing the evidence to
show him to be guilty of the offence with which he is charged. In cases
where the Court entertains reasonable doubt regarding the guilt of the
accused, the benefit of such doubt should go in favour of the accused. While
Crl.A. No.576-DB of 1998 -18-
coming to such conclusion, the case of the prosecution must be judged as a
whole having regard to the totality of the evidence. The Court may doubt
the guilt of the accused resting on direct or circumstantial evidence or on
confessional evidence. The evidence of the eye-witness may not inspire
confidence for diverse reasons and the benefit of doubt may be given to the
accused. The principle of giving the benefit of doubt to the accused operates
only in those cases where the evidence is extremely evenly balanced either
for or against the accused and the conduct of the accused is equally
consistent with his guilt as well as with his innocence: where the reliance
cannot be placed on the prosecution evidence because of its doubtful
character; where the circumstantial evidence is capable of two
constructions, one in favour of the accused and another against him; and
where doubts are entertained as who is falsely implicated and who is not.
Keeping in view the said principle and various doubts, as noticed herein-
above by this Court in the prosecution version and evidence, we are of the
opinion that in the facts and circumstances of the case the appellant
deserves the benefit of doubt. Thus, we hold that the prosecution has failed
to prove the alleged guilt against the appellant beyond reasonable doubt.
23. In view of the above, the appeal is allowed, the conviction and
sentence awarded by the trial court are set aside and the appellant is
acquitted of the charges.
(SATISH KUMAR MITTAL)
JUDGE
January 27, 2009 ( DAYA CHAUDHARY )
vkg JUDGE