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CASE NO.: Appeal (crl.)  1644 of 2005

PETITIONER: Jagdish Murav

RESPONDENT: State of U.P. & Ors

DATE OF JUDGMENT: 24/08/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       The Appellant before us was prosecuted for commission of an  offence under Section 307 of the Indian Penal Code for making attempt to  murder of Babu Lal Yadav (PW-2).  The first informant Ramsurat (PW- 1) was his uncle being brother of Ramashray, father of PW-2.  PW-2 was  a resident of Pukhar within the jurisdiction of the Police Station Basgaon.   When the alleged occurrence took place, he was working as a driver of a  vehicle belonging to one Mangal Prasad.  He had parked the said vehicle  at Kovadeh near Sahabganj, allegedly, waiting for the passengers.  

       The Appellant together with other two accused, viz., Ramsahay,  Udaybhan and Ganga who were residents of his village allegedly were  present at the place of occurrence.  The relationship between the parties  admittedly was not good.  Ramashray, father of PW-2 had an ongoing  dispute with Ramniwas, father of Accused No. 4, Ramsahay and Vyas,  father of Accused No. 3 Udaybhan.  Admittedly Udaybhan was the uncle  of Ramvander Pandey who instituted a case against the brother of  Ramsurat under Sections 323, 504 and 506 of the Indian Penal Code.   They allegedly asked him to withdraw the litigations to which he replied  that he should ask therefor the persons concerned, i.e., who had been  fighting out the cases.

       As per the prosecution witnesses, the accused had come near the  vehicle of the deceased.  He wanted to come out of the vehicle but he was  prevented from doing so.  Thereafter upon alleged exhortation of  Ramsahay, Udaybhan and Ganga, the Appellant herein allegedly fired a  shot at his neck from his katta (country made pistol) injuring right side of  his neck.

       We may in view of the aforementioned backdrop of events have a  look at the evidences brought on record.

       PW-1 indisputably is a chance witness.  He had travelled a distance  of 35 kms. from his village to Sahabganj only to purchase some  household articles, viz., sutli, dalda, mirch, etc.  He admitted that the said  articles were available in his own village.   

       He allegedly had seen the owner of the vehicle of which PW-2 was  the driver.  He named one Ashok Babu as the owner of the vehicle.  He  had allegedly talked with him for about 2-4 minutes.  From the materials  on records, however, it appears that the owner of the said vehicle was one  Mangal Prasad.  Ashok Babu allegedly had informed him that the  deceased was at Kovadeh.  He reached the place of occurrence within  five minutes thereafter.  Allegedly, two other persons, namely,  Dhanusdhari and Chhedi also visited the said place.  They were not

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examined for reasons best known to the prosecution.  If PW-1 is to be  believed, the occurrence took place at about 5.30 p.m.  He not only heard  conversations between the deceased and the Appellant but also saw the  incident.   

       Ashok Babu and Mangal Prasad immediately after the occurrence  allegedly came to the spot and took PW-2 to the Medical College.  A  First Information Report was lodged at 10.15 p.m. on the same day.   Although PW-1, the informant allegedly went to the Medical College, he  did not talk to the doctor.  It was Mangal Prasad who took the injured to  the doctor.  Parentage of PW-2 was also not disclosed before the hospital  authorities, which was unusual if PW-1 had taken him thereto.   

       PW-2, however, stated that he had taken the vehicle bearing No.  DDM 4303 to Khalilabad.  On the fateful day, however, he was driving a  vehicle bearing registration No. URO 9966.  He had gone to Deoriya  wherefrom he returned about at 7 p.m.  PW-2 stated that at about 8 p.m.  he went to meet his employer who had asked him to take the vehicle to  Kodah to get passengers.  PW-1 deposed that he reached Medical College  at 10.15 p.m.  He was there for about one hour.  He came to police station  thereafter which would mean that he reached police station at about 12 O’  Clock in the night.  The First Information Report, as noticed hereinbefore,  was said to have been registered at about 10.15 p.m.  According to PW-1,  PW-2 had been taken straight to the Medical College.  The doctor’s  report which was marked as Ex. P-2, however, clearly demonstrates that  the injured was taken to the District Hospital first and thereafter he was  referred to the Medical College.  Despite the fact that he was referred by  the District Hospital, PW-2 was examined by an anesthetist.  An X-ray  was advised which was taken.   

       The matter was investigated by Shri Fadinder Singh Yadav who  examined himself as PW-4.  He allegedly recorded the statements of the  persons present at the spot.    No independent witness has, however, been  examined by the prosecution.  He visited the spot.  He is said to have  prepared a site plan, which was not brought on record.  He did not seize  the Swaraj Mazada vehicle.  He had merely taken a piece of the seat  which was said to be blood soaked but the report of serologist was not  made available.  At the place of incident, he did not find any cartridge or  bullet which was unlikely.  There exists a contradiction also in regard to  the place of arrest of the accused persons.  They were said to have been  arrested in their village Moja Fulhar as disclosed by PW-1.  PW-4,  however, states that all the accused persons were arrested from the taxi  stand of Gorakhpur on 13.3.1993.  It is wholly unlikely that the accused  persons would come back to the place of occurrence.   

       The original general diary has not been produced despite the fact  that a specific defence was raised that the First Information Report was  ante-timed and ante-dated.  The Circle Officer, whose office is situate at  about 1 and = kms. from the police station and was housed in the  building of Kotwali Police Station, saw the First Information Report only  on 11th March, 1993.  It reached the court of magistrate much later, i.e.,  on 16.3.1993.   

       The statement of the complainant was not recorded in the general  diary.  The Investigating Officer, despite the First Information Report,   did not visit the hospital immediately but did so only on 26.3.1993 to  record the statement of the injured.  He did not explain as to why he could  not record the statement of the PW-2 earlier.  The doctors who were  examined on behalf of the prosecution did not state that the injured was  not in a position to make any statement.  The time when the recording of  the statement of PW-2 commenced and completed had not been recorded  in the general diary.  He accepted that no certificate was obtained from  the doctor to show that PW-2 was unable to make any statement.   According to PW-1, the Investigating Officer reached Medical College at  8 a.m. the next morning and his statement was taken there; whereas

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according to the Investigating Officer, the statements of the witnesses  were recorded at the place of occurrence.

       PW-2, in his statement, categorically stated that PW-1 came to see  him on 7.3.1993.  They talked to each other.  PW-2 had not seen the  alleged eye \026witnesses at the place of occurrence before the incident.  It  was the witnesses, viz., PW-1, Dhanusdhari and Chhedi had allegedly  informed him that they had come to Sahabganj and witnessed the  incident.  PW-1, it is interesting to note, did not say so.  Dhanusdhari and  Chhedi, despite being relatives of PW-2 were not examined.  The reason  for their non-examination has not been disclosed.  PW-3 Dr. Birender  Kumar was on emergency duty.  According to the doctor, thumb  impression of PW-2 was taken on the hospital records.  Thumb  impression of Mangal Prasad had also been taken.  PW-2, therefore, when  examined by the doctor, was not unconscious.  There was no reason as to  why the thumb impression of the alleged eye witnesses and close relative  of PW-2, viz., PW-1 was not taken.  In fact there is nothing on record to  show that PW-2 was taken to hospital by PW-1.

       The injury of PW-2 shows that the shot has been fired from a close  range.  The doctor in his evidence stated that the shot had been fired from  a distance of six paces.

       The statement of PW-1 is full of contradictions.  He in his First  Information Report did not disclose that immediately after the incident he  had gone to the District Hospital in the car sent by Mangal Prasad and  from there he took PW-2 to the Medical College.  Had he done so, the  same would have been disclosed in the First Information Report.     

       The learned Sessions Judge passed the judgment of acquittal  opining that the presence of PW-1 was wholly doubtful.  In view of the  distance of the place of incidence from his residence, it was further  opined that it was unlikely that he would travel so far for nothing.  His  presence was also doubted having regard to the fact that PW-1 did not  take PW-2 to the District Hospital.  According to PW-1, he took PW-2  directly to the Medical College whereas the evidences on record clearly  show that he had first been taken to the District Hospital and then the case  was referred to the Medical College.   

       No independent witness was examined.  The enmity between the  PW-2 and the accused persons being admitted, the claim of the Appellant  being falsely implicated cannot be ruled out.  His testimony was also  found to be doubtful by the learned Trial Judge in view of inherent  contradictions in his different versions.  It is borne out from the records  that he made contradictory and inconsistent statements.   

       The learned Trial Judge also doubted the veracity of the story as  disclosed by PW-2.  PW-2 was a driver.  He had been going from place to  place.  The accused persons who were four in number, therefore, could  not have any premeditation to come to the place of occurrence in the  night from a distance of 35 kms. to commit the offence.  The fact that  PW-2 would park his vehicle at the place of occurrence could not have  been known to the accused persons.  PW-2 stated that he had seen PW-1  and the other two witnesses whereas before the Investigating Officer he  had stated that it was PW-1 who told him thereabout.   

       The learned Trial Judge drew adverse inference for non- examination of Mangal Prasad, employer of PW-2 and, particularly,  having regard to the fact that he had got him admitted in the hospital.  Dr.  V.S. Mehrotra who had taken the X-ray of PW-2 was not examined.  The  learned Trial Judge also found that motive for commission of the offence  was not established.  It was further opined that the First Information  Report was ante-dated and ante-timed.   

       On an appeal having been preferred by the State against the said

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judgment of acquittal against all the four accused, leave was granted by  the High Court only against the Appellant herein.   

       The High Court in its impugned judgment, however, reversed the  findings of the learned Sessions Judge opining:

(i)     There was nothing unusual if PW-1 thought to visit Gorakhpur  to make sundry purchases and meet PW-2. (ii)    He being an illiterate person could hardly make a distinction  whether it was 8 O’clock, 10 O’clock or 12 O’clock because all  the hours in the night have the same features till the sun rises.   (iii)   PW-1 saw the occurrence as there was mercury light at the  scene of the occurrence and the victim suffered a close range  shot and, thus, there could not be any possibility of mistake in  their identity.   (iv)    The statement of PW-1 that the shot had been fired from six  paces was considered to be a minor contradiction.   (v)     If a witness is related to the victim, he would naturally be  interested in ensuring that the real culprit is punished or not  screened. (vi)    The Appellant must have injured the victim with premeditation.   

We may at the outset like to observe that the High Court failed to  consider that it was dealing with a judgment of acquittal.  It failed to  address itself the right question, viz., if two views are possible, the  appellate court shall not interfere with a judgment of acquittal.  The High  Court evidently in its judgment failed to take into consideration several  relevant factors as was done by the Trial Court.  The High Court also  failed to consider that the statements of PWs 1 and 2 were disbelieved in  relation to three other accused persons.  No gun was seized.  No cartridge  was found at the place of occurrence.  The enmity between the parties  was admitted.  The First Information Report was evidently ante-timed as  it could not have been sent to the Circle Officer after four days and to the  court of the learned magistrate after eight days.   

Investigation of the case was conducted by PW-4 in a slip-shod  manner.  PW-4 did not explain as to why the original general diary was  not produced.  In terms of the Police Act, a copy of the statement of the  First Information Report is required to be handed over to the informant.   First Information Report was required to be taken down in the general  diary.  Production of the general diary was necessary as the First  Information Report was said to be ante-timed and ante-dated.  The  learned Trial Judge categorically opined the same to be so.  No  explanation has been given as to why the independent witnesses whose  statements had allegedly been recorded were not examined.  There was  no reason as to why the statement of the PW-2 was taken after such a  long time although according to the medical report he was not  unconscious as would be evident from the fact that his left thumb  impression was taken in the hospital register.  If PW-2 was taken within a  few minutes to the District Hospital, the doctor incharge must have  informed the police.  The Investigating Officer does not say so.  He had  not made any attempt to apprehend the culprits immediately.  There is  absolutely no reason as to why in a case of grave nature, a copy of the  First Information Report was sent to the Circle Officer, 4 days after the  incident and to the court 8 days thereafter.  Section 157 of the Code of  Criminal Procedure mandates that the First Information Report should be  sent to the nearest magistrate within a period of 24 hours.  The incident  took place at Gorakhpur which is a District Town.  Section 147 of the  Police Act and the Rules framed thereunder provide for safeguards for the  accused persons from false implication.  The legal requirements were not  complied with.  This Court in Meharaj Singh v. State of U.P. [(1994) 5  SCC 188] stated the law, thus:   

"FIR in a criminal case and particularly in a

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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 upon prompt lodging of  the FIR is to obtain the earliest information regarding  the circumstance in which the crime was committed,  including the names of the actual culprits and the parts  played by them, the weapons, if any, used, as also the  names of the eyewitnesses, 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 CrPC, 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 proceedings were over at the  spot by PW 8."                         [Emphasis supplied]

       [See also Budh Singh & Ors. v. State of U.P., JT 2006 (11) SC  503]

       In Budh Singh (supra), this Court noticed the regulations framed by  the State of U.P. in terms of the Police Act stating:

"The State of U.P. had made regulations in  terms of the Police Act, which are statutory in  nature.  Regulation 97 provides 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.  Such a First Information Report,  known as chik (check) report, should be taken  out in triplicate in the prescribed form and the  ’true facts should be ascertained by a  preliminary investigation’.  In the event a  written report is received, an exact copy thereof  should be made and the officer-in-charge of the

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station is required to sign on each of the pages  and put the seal of the police station thereupon.   The duplicate copy is to be given to the person  who brings the written report and the original  thereof must be sent to the Superintendent of  Police.  Regulation 108 emphasizes the need of  maintaining the case diary stating that time and  place should be noted in the diary by the  Investigating Officer when beginning the  investigation; whereafter only, he should  inspect the scene of the alleged offence and  question the complainant and any other person  who may be able to throw light on the  circumstances.  Regulation 109 provides that  the case diary must contain the particulars  required by Section 172 of the Code of Criminal  Procedure in sufficient detail so as to enable the  supervising officer to appreciate the facts."

       The High Court failed to analyse the evidences on record.  It  proceeded to pass its judgment on mere surmises and conjectures.   

       The High Court did not critically scrutinize the evidence of PWs 1  and 2.  Having regard to the facts and circumstances of this case in our  opinion the Appellant was entitled to benefit of doubt.  [See State of U.P.  v. Gambhir Singh and Others, (2005) 11 SCC 271]

       It is no doubt true that PW-2 suffered a grievous injury.  By reason  of the said fact alone, the judgment of acquittal could not have been  interfered with by the High Court.

       For the reasons aforementioned, the impugned judgment cannot be  sustained which is set aside accordingly.  The appeal is allowed.