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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 \026 Mahmood and Khaliq.  The appellant \026  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 \026 appellant No.1 both  armed with guns, Khalid \026 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 \026 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

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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.          

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       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.  \023If 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.\024  

       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.  \023But 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.\024

       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 prosecution\022s 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  \023forthwith\024 in Section (1) of Code of Criminal  Procedure observed that \023 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 \023forthwith\024  within the meaning of Section  157(1) obviously cannot mean that the prosecution is

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required to explain every hour\022s 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  magistrate\022s 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.\024

       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

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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 \023the 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.\024

       We do not find any fallacy or error in the  reasoning of the High Court.  For the aforesaid reasons

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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

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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

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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 \023from the body of deceased one bullet, one  cover \021tikli\022, two dat   and 40 \021chare\021 shots were  taken out, put in packet and sealed \005\005..\024 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.