REPORTABLE

       IN THE SUPREME COURT OF INDIA     CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No. 117  OF 2003     

MOTILAL AND ANR. ...   Appellant(s)                         Versus    STATE OF RAJASTHAN ...  Respondent(s)   

J U D G M E N T

Dr.ARIJIT PASAYAT,J.

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-

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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.

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

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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.

The  High  Court  accepted  the  stand  of  the  State  and  recored  the  

conviction as afore noted.   

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

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were supposedly  collected from the spot  of  occurrence  were so  small  that  same  

could not be sent for a foresenic examination.  

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.  

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

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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.  

              ...................J.                                  (Dr. ARIJIT PASAYAT)  

             ....................J.                          ((ASOK KUMAR GANGULY)

New Delhi, May 05, 2009.

       IN THE SUPREME COURT OF INDIA     CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No. 118   OF 2003         

   NAND KISHORE @ NANDA ...   Appellant(s)                         Versus    STATE OF RAJASTHAN ...  Respondent(s)

O R D E R

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

deserves to be succeed which we direct.

              ...................J.                                  (Dr. ARIJIT PASAYAT)   

             ....................J.                          ((ASOK KUMAR GANGULY)

New Delhi, May 05, 2009.

IN THE SUPREME COURT OF INDIA     CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No. 119   OF 2003         

   STATE OF RAJASTHAN ...   Appellant(s)                         Versus    PHOOL CHAND AND ORS. ...  Respondent(s)

O R D E R

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

deserves to be dismissed which we direct.

              ...................J.                                  (Dr. ARIJIT PASAYAT)   

             ....................J.                          ((ASOK KUMAR GANGULY)

New Delhi, May 05, 2009.

IN THE SUPREME COURT OF INDIA     CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No. 120   OF 2003         

   STATE OF RAJASTHAN ...   Appellant(s)                         Versus    MOTI LAL AND ORS. ...  Respondent(s)

O R D E R

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

deserves to be dismissed which we direct.

              ...................J.                                  (Dr. ARIJIT PASAYAT)   

             ....................J.                          ((ASOK KUMAR GANGULY)

New Delhi, May 05, 2009.