Mahmood
& Anr Vs. State of U.P. [2007] Insc 1149 (15 November 2007)
Altamas
Kabir & B. Sudershan Reddy B.Sudershan Reddy, J.
This
is an appeal by special leave preferred by the appellants Mahmood and Khaliq.
The appellant Mahmood has been convicted for the offence punishable under
Section 302 read with Section 149 of IPC and sentenced to imprisonment for
life. He has been also convicted under Section 148 of IPC and sentenced to
undergo rigorous imprisonment for 1= year. The second appellant has been convicted
for the offence punishable under Section 302 read with Section 149 and
sentenced to undergo life imprisonment. He has been further convicted under
Section 147 of IPC and sentenced to undergo one year rigorous imprisonment and
further convicted under Section 379 of IPC and sentenced to undergo rigorous
imprisonment for a period of two years.
Put
briefly the prosecution case is as follows:
On
19th February, 1977 at about 4.45 p.m. the accused Ram Samujh and Mahmood appellant
No.1 both armed with guns, Khalid appellant No.2, Bajrang and one unidentified
person armed with lathi assaulted deceased Ram Singh at Galiyara near the
fields of Ram Sewak Ahir, while he was returning to his village Badipur on his
motorcycle. It was alleged that the accused Ram Samujh and Mahmood fired four
shots, as a result of which the deceased fell down injured and thereafter Khaliq
snatched the licensed revolver belonging to the deceased and all the five fled
away from the scene. Ram Singh died on the spot. The incident of murderous
attack was witnessed by Jaikirat Singh (P.W.1) who is none other than the son
of deceased Ram Singh, Ram Ratan (P.W.2), resident of village Sujerpur hamlet
of Bodipur and Ram Adhar (P.W.3). P.W.1 lodged written First Information Report
Ext.Ka.1 on the same day at 4.45 p.m. naming all the accused and the manner in
which the murderous attack on the deceased had taken place. Jagdamba Prasad Dwivedi
(P.W.7) the office in-charge of Police station, Kothi rushed to the scene of
offence at about 6.00
p.m. and found the
dead body of Ram Singh and his motorcycle in galiyara near the fields of Ram Sewak
Ahir. The broken pieces of the skull of the deceased and broken three teeth
were seized from the place of occurrence. The discharged cartridge and tickli
were also seized from the spot. P.W.7 after preparing the Inquest Report (Ext.
Ka.7) sent the dead body for conducting post- mortem. Dr. R.S. Katiyar P.W.5
performed the autopsy on the dead body on 20th February, 1977 at about 9.45 a.m. and found as many as five ante-mortem gun shot
wounds. A cap of cartridge was extricated from the brain of the deceased. Scalp
bones were found fractured. It was found that vital organs like peritoneum,
liver, kidneys were badly ruptured. In the opinion of the doctor, the cause of
death was due to shock and hemorrhage resulting from ante-mortem injuries. The
investigation of the case was transferred in the first week of March, 1977 to
CBCID.
Inspector
M.L. Gautam having completed rest of the investigation submitted chargesheet
against the appellants and other accused.
The
accused have denied the charges framed against them and took the plea that they
have been falsely implicated due to enmity. The accused were accordingly put on
trial. The prosecution in order to establish its case in altogether examined 8
witnesses and got marked 39 documents as Exts. Ka.1-39. Amongst the witnesses
examined by the prosecution, Jaikirath Singh, Ram Ratan and Ram Adhar (P.Ws.
1,2 and 3) respectively were eye-witnesses to the murderous attack on the
deceased. The accused also led evidence and examined Virendra Singh DW 1, Laxmi
Narain Sinha DW 2 and Bindra Charan DW 3.
The
learned Sessions Judge upon appreciation of the oral evidence and material on
record found all the accused guilty of the charges framed against them and
sentenced them to various terms of imprisonment. On appeal the High Court of Allahabad
confirmed the conviction and sentences imposed by the learned Sessions Judge.
The appellants who are accused No.2 and 3 respectively alone have preferred
this appeal by special leave, challenging their conviction and sentence.
We
have elaborately heard the learned senior counsel Shri Harjinder Singh and Shri
R.C. Kohli as well as Shri Shail Kumar Dwivedi, learned Additional Advocate
General for the State.
The
learned senior counsel Shri Harjinder Singh mainly contended that the FIR
lodged by P.W.1 Jaikirath Singh was ante-timed and ante-dated and brought into
existence after due deliberations and consultations with the police.
According
to the learned senior counsel, the special report required to be sent to the
superior authorities and a copy of check FIR to the Illaqua Magistrate as
required under Section 157 of the Code of Criminal Procedure was not sent by
the police. That apart arrest of Maiku Bhujwa before 3.40 p.m. and his
detention in the police station at 5.30 p.m. and also the fact that some
seizure memos, prepared by Investigating Officer on the same day which do not
bear any crime number, are more than sufficient to doubt the timings of FIR
Ext.Ka.1.
There
is no doubt that FIR in a criminal case and particularly in murder case is a
vital and valuable piece of evidence for the purpose of appreciating evidence
led by the prosecution at the trial. FIR is the earliest information regarding
the circumstances under which the crime was committed, including the names of
the actual culprits and the part played by them, the weapons, if any, used as
also the names of the eye-witnesses, if any. Delay in lodging the FIR may
result in embelishment, which is a creature of an after thought. This court in Meharaj
Singh vs. State of U.P. observed that 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 check is the receipt of
the copy of the FIR, called as 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. The second external check equally important is sending of
copy of the FIR along with the dead body and its reference in the Inquest
Report. This court while construing Section 157 of the Code of Criminal
Procedure in Anil Rai vs. State of Bihar observed that the said provision is
designed to keep the Magistrate informed of the investigation of such
cognizable offence so as to be able to control the investigation and if
necessary to give appropriate direction under Section 159 of the Code. But
where the FIR is shown to have actually been recorded without delay and
investigation started on the basis of the FIR, the delay in sending the copy of
the report to the Magistrate cannot by itself justify the conclusion that the
investigation was tainted and the prosecution insupportable. This court
further took the view that the delay contemplated under Section 157 of the Code
for doubting the authenticity of the FIR is not every delay but only
extra-ordinary and unexplained delay. We do not propose to burden this short
judgment of ours with various authoritative pronouncements on the subject since
the law is so well settled that delay in despatch of FIR by itself is not a
circumstance which can throw out the prosecutions case in its entirety,
particularly in cases where the prosecution provides cogent and reasonable
explanation for the delay in despatch of the FIR.
The
same principle has been reiterated by this wherein this court while construing
the expression forthwith in Section (1) of Code of Criminal Procedure
observed that it is a matter of common experience that there has been
tremendous rise in the crime resulting into enormous volume of work, but
increase in the police force has not been made in the same proportion. In view
of the aforesaid factors, the expression forthwith within the meaning
of Section 157(1) obviously cannot mean that the prosecution is required to
explain every hours delay in sending the first information report to the
magistrate, of course, the same has to be sent with reasonable despatch, which
would obviously mean within a reasonable possible time in the circumstances
prevailing. Therefore, in our view, the first information report was sent to
the magistrate with reasonable promptitude and no delay at all was caused in
forwarding the same to the magistrate. In any view of the matter, even if
magistrates court was closed by and the first information report reached
him within six hours from the time of its lodgment, in view of the increase in
work load, we have no hesitation in saying that even in such a case it cannot
be said that there was any delay at all in forwarding the first information
report to the magistrate. It is not possible to lay down any universal
rule as to within what time the special report is required to be despatched by
the Station House officer after recording the FIR. Each case turns on its own
facts.
The
learned senior counsel invited our attention to the judgments of this court in Balaka
Singh and ors.
Punjab in which this court highlighted the
importance of despatch of special report to the Illaqua Magistrate. There is no
dispute with the proposition that it is the duty of the Station House Officer
to despatch Special Report to the Illaqua Magistrate as is required under
Section 157(2) of the Code of Criminal Procedure. But there may be variety of
factors and circumstances for the delay in despatch of the FIR and its receipt
by the local Magistrate. The existence of FIR and its time may become doubtful
in cases where there is no satisfactory and proper explanation from the
investigating agencies.
while
making reference of the regulations made by the State of U.P. in terms of the U.P. Police Act held the regulations
to be statutory in nature. The regulations provide the procedure 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 and
sent to superior officers. The regulations are procedural in nature which are
meant for the guidance of the police.
The
regulations do not supplant but supplement the provisions of Code of Criminal
Procedure.
We
shall now consider the facts of the present case and apply the law declared by
this court in more than one decision.
It is
in the evidence of Jaikirath Singh (P.W.1) that he rushed to the police station
by a bicycle and lodged written FIR Ext.Ka.1 within 1 = hours of the incident.
The distance between the place of occurrence and the police station is about 9 kms.
It is in his evidence that he took about 15-20 minutes to prepare his report
and nobody advised him in preparation of the report. He went to the police
station all alone. We do not find any reason whatsoever to disbelieve this
version given by PW 1. There is nothing unnatural and unusual in PW 1 stating
the details of the incident in his written FIR Ext.Ka.1. The behavioral pattern
and response of individuals in a given situation may differ from person to
person. From a bare reading of the FIR Ext.Ka.1 we do not find anything
artificial in it. It cannot be said to be a contrived one brought into
existence after due deliberations as contended by the counsel for the
appellant.
Be it
noted, Jagdamba Prasad Dwivedi, PW 7, the officer in-charge of police station, Kothi
having received the relevant papers in village Sethmau, rushed to the place of
occurrence and reached there at about 6.00 p.m. where he found the dead body of Ram Singh.
The
inquest report Ext.Ka.7 was prepared on the spot and the body was sent for
post-mortem examination. The Inquest Report Ext.Ka.7 specifically refers to the
lodging of FIR by PW 1 at 4.45 p.m. on
19.02.1977.
The
mere fact that crime number is not mentioned in the Inquest Report is of no
significance.
The
sequence of events, namely, that Jagdamba Prasad Dwivedi -PW 7 reached the
scene of offence at 6.00
p.m. and prepared
Inquest Report duly mentioning about lodging of the FIR by PW 1 at 4.45 p.m. on 19th February, 1977 followed by despatch of the dead body to the hospital which reached the
hospital by 9.30 p.m. and the post-mortem examination at 9.30 a.m. on 20th February, 1977 in clear and unequivocal terms reveal that the FIR was lodged at the
time it is stated to have been recorded. It cannot be treated as an ante- timed
and ante-dated one. It is required to note that 20th February, 1977 being Sunday, the Illaqua Magistrate received
special report on 21st
February, 1977. The
special report was despatched by dak.
Arrest
of one Maiku Bhujwa on 19th
February, 1977 at 3.00 p.m. in Crime No.17 under Section 147 etc. and his being
lodged in police station at about 5.30 p.m. by two constables Ram Naresh and Ram Tool Misra as shown in Exts. Ka. 3
and 4 has been used as a sheet anchor to challenge the time of FIR Ext.Ka.1 by
saying that if the two constables were summoned by Station Officer, on reaching
the place of occurrence, then in all probability Station Officer reached the
place of occurrence by 3.00
p.m. even before the
FIR was issued.
The
High Court adverting to this aspect of the matter observed the
investigating officer Sri Dwivedi does not say that he arrested Maiku Bhujwa.
Moreover, arrest of Maiku was not in connection with the murder in question,
but was in connection with another case.
Most
importantly, what could have been the object behind delaying the time of
occurrence of reaching Sri Dwivedi, on the spot, has not been made clear by Sri
Kidwai. We are of the view that arrest of Maiku at about 3.00 p.m. and his lodging in Hawalat at 5.30 p.m. by two constables, does not militate against the
time of FIR Ext.Ka-1 as shown in police papers. It is also possible that some
manipulation was made in the context of the arrest of Maiku, to make the case
against him more sound. We do not find any fallacy or error in the
reasoning of the High Court. For the aforesaid reasons we do not find any
substance in the submission made by the learned senior counsel about the
ante-time and ante-dating of the FIR. The findings in this regard as recorded
by Sessions Judge as well as the High Court are supported by acceptable
evidence and there is no reason to take a different view. It is well settled
that this court normally does not reappreciate the evidence unless it is shown
that the findings are patently erroneous or perverse in nature. However, in
order to satisfy ourselves we have looked into the evidence of PWs 1,2,3 and 7
and we are satisfied that the FIR was lodged on the date and time as stated by
the prosecution.
The
prosecution story entirely rests upon the direct evidence of PW Nos. 1, 2 and
3. PW-1 is none other than the son of deceased Ram Singh. He was present in his
fields situated nearby the place of occurrence where his father was attacked. Jaikirat
(PW-1) no doubt was doing his part time G.N.S. in plantation at Lucknow but that itself would not make his
presence doubtful at the scene of offence on the fateful day. The defence did
not elicit anything in the cross-examination casting any doubt about the
presence of PW-1 at the scene of offence. There is nothing unnatural about the
conduct of PW-1 at the scene of occurrence. He gave detailed version as to the
manner of assault and the role played by each of the accused. The names of PW-2
and PW-3 were also mentioned as eye-witnesses in the First Information Report
itself. In the circumstances, PW-2 and PW-3 cannot be treated as chance
witnesses. The Trial Court and as well as the High Court did not commit any
error in relying on the testimony of PW-2 and PW-3 as eye- witnesses of the
occurrence which fully stands corroborated with the testimony of PW-1. Be that
as it may, there was not even a suggestion to PW-2 and PW-3 that they had animosity
towards the accused persons.
They
are independent witnesses and there is no reason for them to speak against the
accused.
However,
it was strenuously urged that the presence of Jaikirat (PW-1) at the scene of
offence is highly doubtful as he made no attempt whatsoever to save his father
from being further assaulted. We find no substance in this contention. It is in
the evidence of Jaikirat (PW-1) that all the four shots were fired in quick
succession and at that moment PW-1 was at some distance from the actual place
of attack. Be it noted that at least 2 accused were armed with fire-arms and
one with lathi and they were using the weapons with all impunity. In such
circumstances, Jaikirat (PW-1) may not have mustered his courage to jump into
the fray and risk his own life. It is very difficult to predict or express any
opinion as to what could have been normal or natural conduct of a person in
such a situation. Response of individuals in such situations may differ from
person to person. It is not possible to reject the evidence or doubt the
presence of PW-1 on that ground.
The
post-mortem examination of the deceased Ram Singh was performed by Dr.R.S.Katiyar
(PW-5). The post-mortem report is exhibit Ka-4. The Medical Officer found the
following ante-mortem injuries on the person of the deceased:
1. A
gun shot wound (wound of entry) 3 cm x 1 cm.
Over
left side of face just above the left side of the lower lip. Wound of Ext. 3 cm
x 2 cm. Over the right parietal bone, 7 cm. Above the right ear.
2. A
gun shot wound 2.5 cm x 1 cm. Over the right side of face below max. prominence.
3.
Multiple gun shot wounds in an area of 13 cm x 11 cm. Over the right side of
back below the inferior angle of scapula.
4. A
gun shot wound (wound of entry) 2 cm x 2 cm over the right side of the back 2
cm. Right to 12th thoracic vertebra.
5.
Multiple gun shot wounds in an area of 9 cm. X 4 cm. Over the back and middle
of right arm.
Relying
on his evidence the learned counsel for the appellant contended that the oral
account as given by PW-1, 2 and 3 is at variance with medical evidence
available on record. It is contended that while according to the eye-witnesses
all the four shots were fired from the gun, from right side of the victim,
wound no.1 (wound of entry) was on the left side of the face and caused by
bullet and this evidence belies the claim of eye witnesses that they saw the
assault on Ram Singh. It is true that to a pointed query in cross- examination
as regards the nature of injury no. 1, the Medical Officer stated that the said
injury was caused by bullet only. The learned counsel contended that weapons in
the hands of the accused even according to PW-1 were of 12 bore guns and not
any pistols or revolvers. No bullet injury could have been caused with the
fire-arms that were alleged to be in the hands of the assailants. We find no
substance in this submission. The Medical Officer is not ballistic expert. He
was not expected to answer as to whether injury no. 1 could have been caused by
bullet alone.
His
opinion to that extent is of no consequence. It is well settled that medical
evidence is only an evidence of opinion and it is not conclusive and when oral
evidence is found to be inconsistent with the medical opinion, the question of
relying upon one or the other would depend upon the facts and circumstances of
each case. No hard and fast rule can be laid down therefor.
The
ocular evidence if otherwise is acceptable has to be given importance over
medical opinion. However, where the medical evidence totally improbabilises the
ocular version the same can be taken to be a factor to affect credibility of
the prosecution version. We are not inclined to place any reliance upon the
opinion of the Medical Officer that the injury no.1 could have been caused only
with bullet since he is not a ballistic expert. This part of the evidence of
the Medical Officer cannot be considered to be the opinion of an expert and the
same has no evidentiary value. It is not possible to disbelieve the evidence of
PW-1, 2 and 3 and their presence at the scene of occurrence based on the
medical evidence. The High Court rightly observed that the controversy as
regards injury No. 1 and whether the same could have been caused by bullet or
pellet to be without any basis.
The
learned counsel for the State rightly contended that in case of attack by
members of un- lawful assembly on the victim in furtherance of common object,
it is not necessary for the prosecution to establish overt-act done by each
accused. It is required to be noticed that Ram Smujh (A-1) who had fired two
shots, convicted by the Sessions Court, did not even challenge his conviction
in the High Court.
The
appellants have been rightly convicted under Section 302 read with aid of
Section 149 of IPC. PW-5 in his evidence stated that all the injuries sustained
by the deceased were from gun. It is further stated that from the body of
deceased one bullet, one cover tikli, two dat and 40 chare
shots were taken out, put in packet and sealed .. It is also stated in his
evidence that injuries caused on the body of the deceased were sufficient in
the normal course to cause death. This part of the medical evidence if
juxtaposed with the oral evidence of PW-1, 2 and 3 it becomes unnecessary to go
into the question as to which accused caused what injury and which was a fatal
one. Once a membership of an unlawful assembly is established, it is not
incumbent on the prosecution to establish any specific overt-act to any of the
accused for fastening of liability with the aid of section 149 of the IPC.
Commission of overt-act by each member of the unlawful assembly is not
necessary. The common object of the unlawful assembly of the accused in the
present case is evident from the fact that some of them were armed with deadly
weapons. None of them were curious onlookers or spectators to the macabre drama
that was enacted on 19.2.1977 at 3.30 p.m. at galiyara, village Badipur.
For
the aforesaid reasons, we find no merit in this appeal. The appeal is
accordingly dismissed.
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