SUPREME COURT OF INDIA
Jagdish Murav
Vs
State of Uttar Pradesh and Others
Appeal (Crl.) 1644 of 2005
(S. B. Sinha and Dalveer Bhandari, JJ)
24.08.2006
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
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 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
witnesses 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 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. stated the law, thus:
"FIR in a criminal case and particularly in a 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., 2006 (11) JT 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 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 regarded 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,
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.