Jagdish Murav Vs. State of U.P. & Ors  Insc 523 (24 August 2006)
Sinha & Dalveer Bhandari S.B. Sinha, J :
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.
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.
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
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
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.
in view of the aforementioned backdrop of events have a look at the evidences
brought on record.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
High Court in its impugned judgment, however, reversed the findings of the
learned Sessions Judge opining:
nothing unusual if PW-1 thought to visit Gorakhpur to make sundry purchases and meet PW-2.
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.
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.
The statement of
PW-1 that the shot had been fired from six paces was considered to be a minor
If a witness is
related to the victim, he would naturally be interested in ensuring that the
real culprit is punished or not screened.
must have injured the victim with premeditation.
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.
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.
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,
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.
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:
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
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.
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.
the reasons aforementioned, the impugned judgment cannot be sustained which is
set aside accordingly. The appeal is allowed.