2009 (8 )  SCR 303 MOTILAL AND ANR.  

v. STATE OF RAJASTHAN

(Criminal Appeal No. 117 of 2003) MAY 05, 2009

[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the  judgment of a Division Bench of the Rajasthan High Court, Jaipur  

Bench  holding  the  appellant  guilty  of  offence  punishable  under  

Section 302 read with Section 34 of the Indian Penal Code, 1860  

( in short 'IPC'). Eight persons faced trial for allegedly committing  

murder  of  one  Gyan  Chand  (hereinafter  referred  to  as  the  

'deceased') on 11.11.1993 which happened to be on the election  

day  for  the  one  Assembly  election  constituency.  One  of  the  

accused  persons  was  acquitted  by  the  trial  court  and  seven  

persons were convicted in terms of Section 302 read with Sections  

149 and 148 of the Indian Penal Code, 1860 ( in short 'IPC'). They  

were also convicted of some minor offences. During the pendency  

of the appeal before the High Court, one of the accused-appellants  

died. By the impugned judgment three of the appellants before the  

High Court were acquitted. Two persons were convicted in terms  

of Section 302 read with Section 34 while in case of one accused,  

the conviction was altered to Sections 324 and 341 IPC. He was  

sentenced  to  undergo  imprisonment  for  the  period  of  custody  

already undergone.

2. The prosecution version primarily rested on the evidence of  

three eye-witnesses. One of them was the mother of the deceased  

and the other two were the injured witness. The accused persons  

pleaded  innocence.  According  to  them  the  deceased  and  two  

purported eye witnesses were causing disturbance on the polling  

day and therefore the members of the public were agitated and in  

the process they may have been beaten; but because of political  

rivalry the accused persons were falsely implicated. The trial court  

placed  reliance  on  the  three  eye-witnesses  and  recorded  

conviction  and  imposed  sentence  as  aforesaid.  In  appeal,,  the  

stand basically taken was that there was ante dating of the first  

information  report.  The  report  was  purportedly  lodged  on  

11.11.1993 at about 10.50 a.m. The Elaqa Magistrate received it  

on 16.11.1993. The delay has not been explained. Apart from that  

the place of incident has been shifted. It was also pointed out that  

the  ante  dating  of  the  FIR  it  is  evident  from  the  fact  that  the  

admitted case of the prosecution is that the FIR was lodged on  

11.11.1993 at 10.50 a.m., but strangely, the inquest report shows  

that the inquest was started at 10.30 a.m. The stand of the State  

before the High Court was that merely because there was delay in  

despatch of the FIR to the Elaqa Magistrate that cannot throw any  

doubt on the credibility of the prosecution version. There were two  

injured witnesses even if  there was a discrepancy between the  

time indicated in the FIR and the inquest, that was a lapse on the  

part of the Investigating officer and it cannot be a factor in favour of  

the accused persons.

3. The High Court accepted the stand of the State and record  

the conviction as afore noted.

4.  Learned  counsel  for  the  appellants  submitted  that  the  

prosecution version is so brittle that no credence can be put on it.  

There  was  not  one  but  several  factors  which  show  that  the  

prosecution had not come out with clean hands. The High Court  

should  not  have  brushed  aside  the  discrepancy  in  time  of  the  

lodging of the FIR and the conduct of the inquest report. The fact  

that  there  was  considerable  delay  in  sending  the  report  to  the  

Elaqa  Magistrate  and  the  absence  of  blood  on  alleged  spot  of  

incident  have  great  relevance.  According  to  the  prosecution  

version,  the  deceased  suffered  19  injuries  but  the  blood  stains  

which were supposedly collected from the spot of occurrence were  

so small that same could not be sent for a foresenic examination.  

5. Learned counsel for the respondent-State on the other hand  

supported the judgment. It  is his stand that even if  there was a  

deficiency in the investigation that cannot be a factor in favour of  

the accused.  

6. It is true as observed by the High Court that if the FIR is  

timely  lodged and  investigation  is  undertaken  immediately,  in  a  

given  case,  the  delayed  receipt  of  the  report  by  the  Elaqa  

Magistrate would not be fatal to the prosecution. It would depend  

upon the facts of each case. There cannot be any generlisation.  

There is a purpose behind the enactment of Section 157 of the  

Code  of  Criminal  Procedure,  1973  (  in  short  the  'Code').  The  

statutory requirement that the report has to be sent forthwith that  

itself shows that the urgency attached to the sending of the report.  

In a given case it is open to the prosecution to indicate reasons for  

the  delayed  despatch  or  delayed  receipt.  This  has  to  be  

established  by  evidence.  Apart  from  that,  the  unexplained

discrepancy in the timings as recorded in the inquest report and  

the FIR has to be kept in view. It is prosecution version that the  

FIR was lodged at  10.50  a.m.  If  was  so  it  was required  to  be  

explained by investigating officer by plausible evidence on record,  

as to how the inquest was undertaken at 10.30 a.m. at a point of  

time when the FIR was not not in existence. The High Court has  

lightly brushed aside the plea of the appellants that it may be the  

lapse on the part of the investigating officer. It is true that a faulty  

investigation cannot be a determinative factor and would not be  

sufficient  to throw out a credible prosecution version. But in the  

instant case there is no explanation offered even to explain the  

discrepancies cummulative effect of the factors highlighted above  

would show that the prosecution has miserably failed to establish  

the accusations. The appeal succeeds. The bail bonds executed to  

give  effect  to  the  order  of  bail  dated  12.7.2004  shall  stand  

discharged.  

The following Orders of the court was delivered:

Criminal Appeal No. 118 of 2003.

NAND KISHORE @ NANDA                APPELLANT(S)

Versus

STATE OF RAJASTHAN               RESPONDENT(S)

In view of judgment passed in Crl. Appeal No. 117/2003 this  

appeal deserves to succeed which we direct.

Criminal Appeal No. 119 of 2003.

STATE OF RAJASTHAN                  APPELLANT(S)

Versus

PHOOL CHAND AND ORS.            RESPONDENT(S)

ORDER

In view of judgment passed in Crl. Appeal No. 117/2003 this  

appeal deserves to be dismissed which we direct.

Criminal Appeal No. 120 of 2003.

STATE OF RAJASTHAN                APPELLANT(S)

Versus

MOTI LAL AND ORS.                      RESPONDENT(S)

ORDER

In view of judgment passed in Crl. Appeal No. 117/2003 this  

appeal deserves to be dismissed which we direct.