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CASE NO.: Appeal (crl.)  711 of 1995

PETITIONER: Gurpreet Singh                                                   

RESPONDENT: State of Punjab                                                  

DATE OF JUDGMENT: 09/11/2005

BENCH: B.N.AGRAWAL & A.K.MATHUR

JUDGMENT: J U D G M E N T WITH  

CRIMINAL APPEAL NO. 710 OF 1995  

Mohinder Pal Singh                                              \005\005\005Appellant  

Versus  

State of Punjab                                                         \005\005Respondent   

B.N.AGRAWAL, J.  

       The appellants of these two appeals along with accused Bhajan Singh @  Harbhajan Singh and Meharban Singh were made accused in a case under  Section 302 of the Indian Penal Code (for short ’IPC’) but as accused Meharban  Singh died during trial, the remaining three accused persons were tried and  by  its judgment the trial court acquitted accused Bhajan Singh @ Harbhajan Singh  whereas these two appellants were convicted under Section 302 IPC and  sentenced to undergo imprisonment for life and to pay a fine of  Rs. 2,000/- each,  in default to undergo further imprisonment for a period of six months.   Against  the order of acquittal of accused Harbhajan Singh, no appeal was filed by the  State whereas on appeal being filed by the appellants, the High Court confirmed  their conviction and sentence.   The revision application filed by the private  prosecutor for enhancement of sentence has been rejected by the High Court.          Prosecution case, in short, was that Kuljit Singh @ Billa was a student of  B.A. Part I in Arya College, Ludhiana and he was a witness in a case filed for  prosecution of appellant Gurpreet Singh under Section 307 IPC which was  pending.  On 22nd January, 1990 at about 5.30 p.m., Kuljit Singh along with his  brother Harvinder Singh and friends Parminder Singh (PW 2) and Gurvinder  Singh (PW 3) was returning to his house after attending classes from Guru  Angad Dev College and when they reached near Oriental Public School, the  appellants along with accused Meharban Singh, who were present there armed  with kirpans, confronted him.   Appellant Gurpreet Singh shouted that Kuljit Singh  should be done to death and he attacked him with kirpan on his head.   Thereafter, appellant Mohinder Pal Singh @ Vicky  inflicted kirpan blow in the  abdomen of Kuljit Singh.  Accused Meharban Singh assaulted  him with kirpan  on the temporal region whereupon Kuljit Singh fell down.  In the meantime,  accused Harbhajan Singh who too was armed with kirpan came there and also  dealt a kirpan blow on the forehead of Kuljit   Singh.  All the aforesaid accused persons thereafter inflicted several injuries  upon Kuljit Singh even after he fell down.  In the process of inflicting injuries,  appellant Gurpreet Singh also received injuries at the hands of one of the co- accused.  On halla being raised, people of the locality arrived whereafter the  accused persons fled away.  Kuljit Singh was taken to Christian Medical Hospital  by PW 3 and Harvinder Singh where the doctor declared him dead.  Thereupon,  Harvinder Singh, who was brother of Kuljit Singh \026 deceased, left for the police  station but on the Brown Road, near Christian Medical Hospital, he met Sub  Inspector Bakshish Singh (PW 8) who recorded his statement stating therein the

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aforesaid facts and sent the same to the police station where a case was  registered against all the aforesaid four accused persons, including the  appellants on the same day at 7.15 p.m.           Police after registering the case took up investigation and on completion  thereof submitted charge sheet against the accused persons, on receipt whereof,  learned magistrate took cognizance and committed all the aforesaid accused  persons, including the appellants, to the court of Sessions to face trial.  As  accused Meharban Singh died during trial, the same proceeded against the  remaining three accused persons.   Defence of the accused persons was that they were innocent and were  falsely implicated in the case in hand.   Specific defence of the  appellants was  that when they were going to the shop of appellant \026 Gurpreet Singh  and arrived  at Jail Road at the time of the present occurrence, Kuljit Singh and his brother  Upkar Singh were coming from the opposite direction along with one unknown  person and out of them, Kuljit Singh asked his companions to kill appellant  Gurpreet Singh whereupon, he was chased and surrounded by Kuljit Singh and  others and out of them, Upkar Singh stabbed Gurpreet Singh with his knife.  In  the meantime, upon halla being raised by appellant Gurpreet Singh, villagers  arrived there who assaulted Kuljit Singh and stating the aforesaid facts, a  complaint was filed by appellant Gurpreet Singh on 3rd February, 1990 as  Gurpreet Singh was hospitalized.   During the course of trial, the prosecution examined eight witnesses in all,  out of whom, Dr. I.P.Singh Chhabra (PW 1) was the  doctor who conducted  postmortem examination on dead body of the deceased.   Parminder Singh          (PW 2) and Gurvinder Singh (PW 3) claimed to be eyewitnesses to the  occurrence.    Head Constable Balbir Singh (PW 4) and  Constables Manjit Singh  (PW 5),  Gurcharan Singh (PW 6) and  Lakhbir Singh (PW 7) were the formal  witnesses whereas SI Bakshish Singh (PW 8) was the Investigating Officer.    Informant Harvinder Singh could not be examined as he died before the trial  commenced. The defence in support of its case examined three witnesses,  namely, Dr. Subodh Radian (DW 1), who is said to have examined injuries of  appellant- Gurpreet Singh, and  Tarsem Singh (DW 2) and E.Rai Singh (DW 3)  were formal witnesses.  Upon the conclusion of trial, accused Harbhajan Singh  was acquitted whereas the appellants were convicted and their appeal before the  High Court having failed, as stated above, the present appeals by special leave.          In the present case,  presence of the  appellants at the time and place of  occurrence has not been denied rather admitted.  Appellant Gurpreet Singh is  said to have been examined by doctor [DW 1] who stated that he found following  injury on his person:-  "Penetrating wound on the back of the chest left 8th interracostal  space, 5 c.m. from midline, 1-5 c.m. x 0.5 c.m, depth not  ascertained along with left haeopheumethroex."         From the dimension of injury, it would appear that the same was superficial  one inasmuch as, according to the doctor, even its depth could not be  ascertained.  The complaint petition was filed by appellant \026 Gurpreet Singh on  3rd February, 1990, i.e., after eleven days of the date of the incident and the  reason for delay disclosed was  that the said appellant was discharged from  hospital on 3rd of February, 1990.  The doctor (DW 1)  stated that  appellant \026  Gurpeet Singh remained  conscious throughout, but,  even then, no explanation is  forthcoming why  complaint was not filed either by this appellant  himself or  any  of his relations for a period of eleven days  after the occurrence.  It appears that  injury was superficial and complaint was filed  after an inordinate delay of eleven  days  in order to make out a defence in the present case.           Doctor [PW 1],  who held postmortem examination on the dead body of  Kuljit Singh, found following injuries:- 1.      Curved incised wound 5" x 1" x bone deep on the left side of  forehead, extending from bridge of the nose to left ear.   Underneath bone was cut i.e. frontal and nasal bone.  2.      Incised wound 2" x =" x bone deep on forehead on right  side.  3.      Incised wound 3" x =" x bone deep underneath bone was  cut on right cheek extending from lateral angle of eye  towards ear downward.  4.      Lacerated wound on parieto occipital on right side 4" x =" x  scalp deep.

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5.      Incised wound 2 >" "  x =" x bone deep on upper lip, cut  and cut through and through and underneath teeth fractured  i.e. both incisors and canine.  6.      Abraded contusion 2" x =" on the top of right shoulder.  7.      Abraded contusion on the top of left shoulder 4" x 2".  8.      Incised would 1= x =" x bone deep on the right thumb on  palmer aspect.  Underneath bone was fractured.  9.      Incised wound 4" x >" on the left parietal bone, bone deep  underneath bone was fractured.  10.     Four incised wounds >" x ?" elliptical shape on the back,  left side 5" below the tip of scapula.  Both margins incised.  11.     Abraded contusion 3" x <" on left supra scapular region.  12.     Incised wound >" x ?" elliptical shape, both margins incised  on right memory area lateral to nipple.  On exploration  underneath muscle and bone were cut.  The lung is cut size  >" x ?" thoraxic cavity was ful of blood i.e. about one ltr of  blood.  13.     Incised wound >" x ?" on         epigestrium, elliptical wound  with both margins incised and on exploration there was  wound on liver >" x ?" peritonial cavity contained blood  about one litre.  14.     Incised wound >" x ?" on the left side of the chest 3" below  and medial to nipple and on exploration on left lung there  was wound >" x ?" .  Forensic cavity contained about one  ltr. Blood and elliptical in share and both margins incised.  15.     Incised wound >" x ?" on the left side of the chest elliptical  in shape 6" below and lateral to nipple.  On exploration the  left lung was injured in the area in >" x ?".  16.     Incised wound >" x ?" elliptical in shape and both margins  were incised and on the left side of abdomen just lateral to  umbilicus omentum was oozing out.  17.     Incised wound >" x ?" elliptical in shape.  Both margins  were incised on the left side of abdomen 1" above injury No.  16. Omentum was oozing out of the wound.  On exploration  peritoneum cavity contains blood.  Small intestine was  injured at two places.  Size was >" x ?". 18.     Abraded contusion 3" x =" on the right knee joint.  19.     Abraded contusion 3" x =" on left leg lower third on lateral  aspect.  The stomach contained about 80 cc of semi  digested food.  Bladder was healthy and empty.  Large  intestine were healthy and contained gases and foecal  matter.  Heart described and empty.  All other organs were  described.  Spleen and kidneys were healthy.  Organs of  generation were healthy.  All other organs which have not  been described were healthy.  

The doctor stated that the deceased died as a result of cumulative effect of  injuries on the lungs and liver and the same were sufficient to cause death in the  ordinary course of nature.   According to him, injury Nos. 4,6, 7, 11, 18 and 19  could have been inflicted by blunt weapon whereas other thirteen injuries by  incised weapon like kirpan.  So far as injury Nos. 4,6,7,11,18 and 19 are  concerned, PW 3 stated during the course of cross-examination that even after  the deceased fell down,  he was assaulted by the accused persons and in order  to protect himself, he was tossing and rolling on the ground.  As such, the  aforesaid injuries he might have received during the course of tossing and rolling  on the ground.  The other injuries were undisputedly caused by kirpan.  Thus, the  medical evidence supports the prosecution case that the deceased was assaulted  by the accused persons with kirpan.  The two eyewitnesses, namely, Parminder Singh (PW 2) and Gurvinder  Singh (PW 3) have consistently supported the prosecution case in their  statements made before the police as well as in Court.  The ground of attack to  their evidence is that neither in the mortuary register nor in the daily diary [Ex.  DC] their names were disclosed.   In this connection, reference has been made to  Section 154 of the Code of Criminal Procedure (for short ’the Code’) which lays  down that every information relating to the commission of a cognizable offence

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shall be reduced into writing by the police officer incharge of the police station and  thereafter substance thereof shall be entered in a book to be kept by such officer  in such form as the State Government may prescribe in this behalf.  Under  Rule  24.1 of the Punjab Police Rules, Volume III, 1959 Edition, framed by the State  Government, it has been prescribed that  substance of the report shall  be  entered in the Daily Diary.  The relevant part of the Rule reads as under: "Every information covered by Section 154, Criminal Procedure  Code, must be reduced to writing as provided in that section and  substance thereof must be entered in the police station daily diary,  which is the book provided for the purpose.  It is only information  which raises a reasonable suspicion of the commission of a  cognizable offence within the jurisdiction of the police officer to  whom it is given which compels action under section 157, Criminal  Procedure Code."  

       In the present case, as required under the aforesaid Rules, substance of  information received under Section 154 Cr.P.C.  has been entered in the daily  diary  which has been marked as Ex.DC wherein names of all the four accused  and that of the deceased have been mentioned but so far as names of witnesses  are concerned, the same have not been disclosed.  It may be stated that under  Section 154 of the Code as well as  Rule 24.1 of the Rules referred to above,  what is required to be mentioned in the daily diary  is substance of the information  received and the same cannot be said to be repository of everything.  Factum of  murder of Kuljit Singh by the four accused persons, including the appellants, has  been specifically entered.  If the names of the witnesses have not been  mentioned, it cannot be said that substance of information received was not  entered and   there was violation of the provisions of Section 154 read with Rule  24.1 of the Rules .  Mere non-disclosure of the names of witnesses in the  daily  diary  as well as mortuary register, ipso facto, cannot affect the prosecution case  more so, when their names have been disclosed in the first information report  itself and there is no other circumstance to  otherwise  create doubt regarding  veracity of the prosecution case.   This being the position, we do not find any  ground to disbelieve the evidence of PWs 2 and 3.         Mr. Sushil Kumar, learned Senior Counsel appearing on behalf of the  appellant \026 Gurpreet Singh submitted that there was inordinate delay in sending  copy of the first information report to the learned magistrate as the case was  registered on 22nd January, 1990 at 7.15 p.m. but first information report reached  the concerned magistrate on that night at 0002 hours.  In this regard, reference  may be made to the evidence of constable Lakhbir Singh (PW 7) who stated that  the special report of the present case was made over to him at 8.00 p.m. for being  delivered to the concerned magistrate and other officers.  He further stated that  first of all, he delivered  copy of the report at the City Control Room, the    Superintendent of Police (City), Deputy Superintendent of Police (City), Deputy  Superintendent of Police (Detective), Senior Superintendent of Police, Ludhiana,  District Control Room and lastly to the concerned magistrate.  As before  delivering the report to the magistrate, he had delivered its copy at six other  places, therefore, the report could be delivered to the concerned magistrate at  0002 hours during night which shows that this witness has taken four hours time  in delivering report to the magistrate.  In the present case, we do not find that  there was any delay at all in making over the report to concerned magistrate  rather the same was very promptly sent and delivered to the learned magistrate.   That apart, it is well settled that even if there is any delay in sending the special  report to a magistrate that alone cannot affect the prosecution case if the same is  otherwise found to be trustworthy.          Learned Senior Counsel next submitted that in any view of the matter,   conviction of the  appellants  under Section 302 IPC simpliciter is unwarranted as  there is no evidence to show that any of the two appellants inflicted fatal injury.  It  has been further submitted that their conviction  cannot be altered, by this Court,   to under Section 302 read with Section 34 IPC for sharing the common intention  as no charge was framed under Section 302 read with Section 34 IPC but the  charge was framed under Section 302 IPC simpliciter.  It has been further  submitted that at the highest, the appellants can be convicted by this Court under  Section 326 IPC for causing grievous injury to the deceased by dangerous  weapons.  Reliance in this connection was placed upon a three Judges’ Bench  decision of this Court in the case of Shamnsaheb M.Multtani v. State of

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Karnataka (2001) 2 Supreme Court Cases 577.  In that case, charge was framed  under Section 302 IPC and the accused persons were acquitted by the trial court.   When the matter was taken in appeal by the State,  High Court reversed the order  of acquittal but convicted accused under Section 304-B  IPC which was  challenged before this Court.  After taking into consideration the provisions of  Section 464 of the Code of Criminal Procedure, this Court laid down that a  conviction would be valid even if there is omission or irregularity in the framing of  charge provided the same did not occasion a failure of justice.  In the said case,   Court came to the conclusion that by non-framing of the charge under Section  304-B IPC, there was  failure of justice and the accused was prejudiced thereby in  view of the fact that under Section 113-B of the Evidence Act, there was a  statutory presumption against the accused which he was entitled to rebut and no  such opportunity of rebuttal  was afforded to him in the absence of charge.  This  being the position, this Court set aside the conviction under Section 304-B IPC,  remitted the matter to the trial court, directing it to proceed from the stage of  defence evidence.  Therefore, the said decision is quite distinguishable and has  no application to the present case.   On behalf of the State, reference was made to a decision of this Court in  the case of State of A.P. v. Thakkidiram Reddy and others, (1998) 6 Supreme  Court Cases 554, in which case charge was framed under Section 302 IPC  simpliciter  but eleven accused persons were convicted under Section 302/149  IPC by the trial court.  When the matter was taken to the High Court,  conviction  of one accused under Section 302/149 IPC was maintained but of all other ten  accused persons reversed and they were acquitted of the charge. Against the  order of acquittal of the ten accused persons, State of Andhra Pradesh filed an  appeal before this Court whereas the accused whose conviction was upheld by  the High Court also preferred an appeal.  This Court, following the decision of  Constitution Bench in the case of Willie (William) Slaney vs. State of M.P., AIR  1956 Supreme Court 116,  upheld the order of conviction but reversed the   acquittal of five accused persons out of ten and restored their conviction under  Section 302/149 IPC recorded by the trial court.  After taking into consideration  the provisions of Section 464 and 465 of the Code, it was   laid down that unless it  could be shown from the evidence of witnesses as well as a statement of the  accused under Section 313 of the Code that there was a failure of justice and  thereby accused was prejudiced, the appellate court would not be justified in  refusing to convict the accused for the offence under Section 302/149 IPC merely  because  charge was framed under Section 302 IPC simpliciter and not under  Section 302/149 IPC.  The court thus observed in paras 10-11 which read thus:- "10.    Sub-Section (1) of Section 464 of the Code of Criminal  Procedure, 1973 (’Code’ for short) expressly provides that no  finding, sentence or order by a Court of competent jurisdiction shall  be deemed invalid merely on the ground that no charge was  framed or on the ground of any error, omission or irregularity in the  charge including any misjoinder of charges, unless in the opinion  of the Court of appeal, confirmation or revision, a failure of justice  has in fact (emphasis supplied) been occasioned thereby. Sub- section (2) of the said section lays down the procedure that the  Court of appeal, confirmation or revision has to follow in case it is  of the opinion that a failure of justice has in fact been occasioned.  The other section relevant for our purposes is Section 465 of the  Code; and it lays down that no finding, sentence or order passed  by a Court of competent jurisdiction shall be reversed or altered by  a Court of appeal, confirmation or revision on account of any error,  omission or irregularity in the proceedings, unless in the opinion of  that Court, a failure of justice has in fact been occasioned. It further  provides, inter alia, that in determining whether any error, omission  or irregularity in any proceeding under this Code has occasioned a  failure of justice, the Court shall have regard to the fact whether  the objection could and should have been raised at an earlier  stage in the proceedings. 11. This Court in Willie (William) Slaney v. The State of M. P.,  elaborately discussed the applicability of Sections 535 and 537 of  the Code of Criminal Procedure, 1898, which correspond  respectively to Sections 464 and 465 of the Code, and held that in  judging a question of prejudice, as of guilt, courts must act with a

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broad vision and look to the substance and not to technicalities,  and their main concern should be to see whether the accused had  a fair trial, whether he knew what he was being tried for, whether  the main facts sought to be established against him were  explained to him fairly and clearly and whether he was given a full  and fair chance to defend himself. Viewed in the context of the  above observations of this Court we are unable to hold that the  accused persons were in any way prejudiced due to the errors and  omissions in the charges pointed out by Mr. Arunachalam. Apart  from the fact that this point was not agitated in either of the Courts  below, from the fact that the material prosecution witnesses (who  narrated the entire incident) were cross examined at length from all  possible angles and the suggestions that were put forward to the  eye witnesses we are fully satisfied that the accused persons were  not in any way prejudiced in their defence. While on this point we  may also mention that in their examination under Section 313 of  the Code, the accused persons were specifically told of their  having committed offences (besides others) under Sections 148  and 302/149 IPC. For all these reasons we reject the threshold  contention of Mr. Arunachalam.         Further, it  has been reiterated by this Court in the case of Ramji Singh  and another v. State of Bihar (2001) 9 Supreme Court Cases 528 wherein also  charge was framed under Section 302 simpliciter but conviction was under  Section 302 read with Section 34 IPC and it was laid down that conviction under  Section 302 read with Section 34 IPC was warranted as the accused person  shared the common intention  to cause  death of the victim and no prejudice was  caused to them because of non-framing of charge under Section 302 read with  Section 34 IPC.          In the present case, it cannot be said that the accused persons were  prejudiced merely because charge was framed under Section 302 IPC simpliciter  and no charge was framed under Section 302 read with Section 34 IPC.  From  the evidence of two eyewitnesses, namely, PWs 2 and 3 it would appear that the  accused persons shared the common intention to cause death of the victim.   They  were cross-examined at length from all possible angles and from the  suggestions that were put forth to the eyewitnesses, we are fully satisfied that the  accused persons were not in any manner  prejudiced in their defence.  That  apart, in their examination under Section 313 of the Code, the appellants were  specifically told that they along with other accused persons armed with kirpan  came to the place of occurrence and assaulted the deceased whereafter  they   fled away which shows that appellants shared the common intention  to cause  death  of the deceased.           Learned Senior Counsel appearing on behalf of the appellant in this  regard has further relied upon decision of this Court in the case of Atmaram  Zingaraji v. State of Maharashtra 1997 Criminal Lal Journal 4406  wherein  charge was framed under Section 302/149 IPC against nine accused persons  who were acquitted by the trial court and when  State of Maharashtra preferred  an appeal, the High Court upheld acquittal of eight accused persons but reversed  the acquittal of ninth accused and convicted him under Section 302 IPC  simpliciter.  Against the order of conviction, the accused moved this Court and  his conviction under Section 302 IPC simpliciter was set aside on the ground that  there was no evidence to show that he inflicted the fatal injury and he could not  be convicted under Section 302/149 IPC as the other eight accused persons  were acquitted and their acquittal attained finality.  This Court, however,  convicted the accused under Section 326 IPC for causing grievous injury by him  to the deceased.        Likewise, in the case of Roopa Ram v. State of Rajasthan  1999 Criminal Law Journal 2901 three accused persons were charged  under  Section 302 and out of them two were acquitted by the trial court and one person  was convicted under Section 302 IPC and his conviction was upheld by the High  Court.  When the matter was brought to this Court, it was found that the injury  inflicted by the appellant before this Court could not be said to be fatal as such  his conviction under Section 302 IPC simpliciter was unwarranted and the same  was set aside specially in view of the fact that he could not have been convicted  under Section 302 read with Section 34 IPC as other two accused persons had  been already acquitted by the trial court itself and their acquittal attained finality.   In these circumstances, this Court convicted the accused under Section 326 of

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the IPC for causing grievous injury to the deceased.  In our view, the aforesaid  two cases have no application to the facts of the present case.  In view of the  facts set forth above,  we are of the  opinion that prosecution has succeeded in  proving its case beyond reasonable doubt and conviction of the appellants under  Section 302 IPC is liable to be altered to one under Section 302 read with  Section 34 IPC as fatal injury could not be attributed to him.          Shri Prabha Shanker Misra, learned Senior Counsel appearing in support  of Criminal Appeal No. 710 of 1995 apart from challenging conviction of appellant  Mohinder Pal Singh on merits, which  we have already dealt with, submitted that  on the date of the alleged occurrence, he was a juvenile  within the meaning of  Section 2(h) of the Juvenile Justice Act, 1986 (hereinafter referred to as ’the Act’)  as on that date he had not attained the age of 16 years.  It appears that this point  was not raised either before the trial court or the High Court .  But it is well settled  that in such an eventuality, this Court should first consider the legality or  otherwise of conviction of the accused and in case the  conviction is upheld, a  report should be called for from the trial court on the point as to  whether the  accused was juvenile  on the date of  occurrence and upon receipt of the report,  if it is found that the accused was juvenile on such date and  continues to be so,  he shall be sent to juvenile home.   But  in case it finds that on the date of the  occurrence, he was juvenile but on the date this Court is passing final order upon   the report received from the trial court, he no longer continues to be juvenile, the  sentence imposed against him would be liable to be set aside.  Reference in this  connection may be made to  decision of this Court in the case of Bhoop Ram v.  State of U.P. (1989) 3 Supreme Court Cases 1 in which case at the time of grant  of special leave to appeal, report was called for from the trial court as to whether  the accused was juvenile or not which reported that the accused was not a  juvenile on the date of the occurrence but this Court, differing with  the report of  trial court, came to the conclusion that  accused was juvenile on the date the  offence was committed and as he was no longer a juvenile on the day of  judgment of this Court, sentence awarded  against him was set aside, though  conviction was upheld.  In the present case, we have already upheld  conviction of appellant - Mohinder Pal Singh as well but it would be just and  expedient to call for a report from the trial court in relation to his age on the date  of the occurrence.   Accordingly, Criminal Appeal No. 711 of 1995 filed by appellant - Gurpreet  Singh fails and the same is dismissed.  Bail bonds of this appellant, who is on  bail, are cancelled and he is directed to be taken into custody forthwith to serve  out the remaining period of sentence for which a compliance report must be sent  to this Court within one month  from the date of receipt of copy of this order.          In Criminal Appeal No. 710 of 1995 filed by appellant Mohinder Pal Singh,  call for a report from the trial court as to whether on the date of occurrence this  appellant was juvenile within the meaning of Section 2(h) of the Juvenile Justice  Act, 1986?  The trial court shall give opportunity to both the parties to adduce  evidence on this point.  Let the  entire original records of the trial court be  returned to it.  Report as well as records must be sent to this Court within a  period of three months from the receipt of this order. Upon receipt of report from  the trial court, final order shall be passed in this appeal.