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CASE NO.:

Appeal (crl.) 1123 of 1999

PETITIONER:

BUDH SINGH AND ORS.

RESPONDENT:

STATE OF U.P.

DATE OF JUDGMENT: 12/05/2006

BENCH:

S.B. SINHA & P.P. NAOLEKAR

JUDGMENT:

JUDGMENT

S.B. SINHA, J. :

The Appellants have preferred this appeal being aggrieved by and

dissatisfied with the judgment and order dated 1.9.1999 passed by the High

Court of Allahabad in Criminal Appeal No. 2079/93, whereby and whereunder

the judgment and order dated 13.8.1993 passed by the IVth Additional

Sessions Judge, Moradabad in S.T. No. 604/2002 acquitting the Appellants

herein for commission of offences under Sections 148, 302 and 307/149 of

the Indian Penal Code (`IPC', for short) and under Section 27 of the Arms

Act, 1959 was reversed convicting them under Sections 148, 307/149 and

302/149 of the Indian Penal Code for intentionally causing death of one Ram

Gopal (deceased) and his wife Chatarvati, as also for attempt to commit

murder of their son Rajveer Singh (the first informant).

Appellant No. 1-Budh Singh, Appellant No. 2-Prem Singh and

Appellant No. 3-Jagan Singh are real brothers. The Appellant No. 4-

Mahesh Singh is son of Budh Singh whereas Appellant No. 6-Rajendra

Singh is son of Prem Singh. Appellant No. 5-Ram Raj is not related

to other Appellants, but he is stated to be belonging to the group

of the other appellants. The deceased Ram Gopal owned agricultural

land towards west side of the village Lalapur Pipalsana. Some lands

belonging to the Gram Samaj were situate adjoining the said land.

Appellant No. 1-Budh Singh and one Kanhai were said to have

illegally occupied about 40-45 bighas land of the said Gram Samaj.

They allegedly intended to take possession of the land belonging to

the deceased on the pretext that the same also belonged to Gram

Sabha. The dispute between the parties in regard to the said land

had been pending for the long. At about 9.00 p.m. on 12.4.1992, the

deceased and his wife Chatarvati were said to be irrigating their

sugarcane field with the help of motor pump. It was said to be a

moonlit night. A lantern had also been kept hanging from a nearby

tree. The Appellants, at that point of time, allegedly came to the

agricultural land of the deceased. Appellant No. 1-Budh Singh was

said to be armed with double barrel gun, whereas Prem Singh, Jagan

Singh and Ram Raj were armed with country made guns and Mahesh and

Rajendra Singh were said to be armed with country made pistols.

They stopped running of the motor, as a result whereof there had

been exchange of abuses. The appellants allegedly said that the

land belonged to Gram Samaj and they would cultivate the same. At

that Time, hearing the noise, Chet Ram-P.W. 2, Shiv Singh-P.W. 3,

Veer Singh and Sawan Singh allegedly arrived at the place of

occurrence. They were allegedly having torches is their hands. The

Appellant No. 1-Bugh Singh allegedly fired from his gun upon Ram

Gopal, whereas Appellant No.5-Ram Raj fired a shot on the wife of

the deceased Chatarvati. Appellant No. 6-Rajendra Singh is said to

have fired a shot on Rajveer Singh. Other accused persons also

stated to have fired their respective weapons. On receiving

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injuries on their person, both Ram Gopal and his wife Chatarvati

ran a few paces, but fell down dead at some distance. P.W. 1-

Rajveer Singh, who was, at the material time, about 16 years old,

thereafter went to the house of one Hori Singh and scribed a First

Information Report (FIR). He, thereafter, went to the Thakurdwara

Police Station is a tractor belonging to one Jagraj Ram accompanied

by two persons, namely, Chet Ram-P.W. 2 and Veer Singh. The police

station was situated, at a distance of about 28 kms. from the place

of occurrence. He lodged a First Information Report at about 00.25

hours 13.4.1992. The said FIR was dispatched to the Court at about

6.25 a.m. on 13.4.1992, but the same reached the Court on

18.4.1992. At the police station, one R.A. Singh, Sub-Inspector was

present. A wireless message was also allegedly sent at about 1.00

a.m. to P.W. 7-S.P.S. Thomar, S.I. of the police station, who was,

at the relevant point of time, posted at the police outpost Suraj

Nagar. The said P.W. 7-S.P.S. Thomar reached the place of

occurrence. He found the dead bodies lying on the field. He also

made an attempt to arrest the accused in the night. In the

meantime, P.W. 1, who had also received a gun shot injury, was

examined by P.W. 4-Dr. S.K. Verma, the Medical Officer (Incharge)

of the Primary Health Centre, Thakurdwara at about 4 a.m. on

13.4.1992. He advised P.W. 1 that an X-ray of the injured part of

the body required to be taken. X-ray however, was taken on

18.4.1992 by P.W. 6-Dr. Om Mehrotra, Senior Radiologist, District

Hospital, Moradabad, who found an opaque substance which, according

to him, was a metallic pellet seen in upper part of right arm of

P.W. 1.

P.W. 1 allegedly came back to his village at about 6 a.m. in the

morning. The inquest of the dead bodies started at 8 a.m. and

concluded at 9.30 in the morning on 13.4.1992. The dead bodies were

sent in a tractor for autopsy at about 12-12.30 during the day time

by P.W. 5-Constable Chandra Sen. The post-mortem examination of

both the dead bodies were, however, not done on 13.4.1992, because

no autopsy surgeon was available. The post-mortem of the deceased

was carried out by P.W. 9-Dr. Madan Mohan, G.D.M.O., Central Police

Hospital, Moradabad on 14.4.1992. The ante-mortem injuries found on

the dead bodies are as under.

"Injuries found on the dead body of Ram Gopal :

1. Multiple gun shot wounds entry 0.3 cm x 0.3 cm in front of chest,

abdomen above the interior sup. Illiac spine in an area 40 cm x 2 cm.

Margins inverted and lacerated. No charring blackening and tattooing

present. On opening the left lung and heart, pleura and pericardium

underneath are lacerated. Direction posterior and downward.

2. Gun shot wound 0.3 cm x 0.3 cm entry in front and outer and upper

part of right thigh above 12 cm below the ant. Sup. Illiac spine, margin

lacerated and inverted. No charring blackening and tattooing present.

3. Gun shot wound entry 0.3 cm x 0.3 cm in front of left thigh.....

(sic) 10 cm below interior, superior illiac spine ..... (sic) with margins

inverted. No charring blackening present."

"Injuries found on the dead body of Chatarvati :

1. Gun shot wound of entry 6 cm x 3 cm on rt. Side chest upper part

over clavical medical part x chest cavity deep. Piece of left lung cavity

out of no injuries. Margin lacerated inverted. Skin around this wound is

charred, blackened and tattooing present. The right clavical 1st rib, rt.

and IInd rib, right fractured. Direction from anterior to posterally

medially and size 18 metallic pellets, one Cap and two wadding recovered

from the right lung and cavity with Abrasion 2 cm x + cm on left side chest

below the left clavical middle part."

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Before the learned Trial Court, P.W. 1-Rajveer Singh, P.W. 2-Chet Ram and

P.W.-Shiv Singh were examined as eye-witnesses to the occurrence. Three

police personnel being P.W. 5-Constable Chandra Sen, P.W. 7-S.P.S. Tomar

and P.W. 8-Constable Shailesh Tyagi were examined to prove the post-mortem

report of the deceased as also the injury report of P.W. 1. P.W. 4-Dr. S.K.

Verma, P.W. 6-Dr. Om Mehrotra and P.W. 9-Dr. Madan Mohan were examined

whereas the radiological report was proved by P.W. 6. The learned Trial

Judge, by reason of a judgment and order dated 13.8.1993, acquitted the

appellants, inter alia, holding :

(i) The First Information Report was ante-timed and ante-dated;

(ii) The exact time of occurrence has not been proved;

(iii) The injuries on the person of P.W. 1 was doubtful;

(iv) The evidences of P.W. 2 and P.W. 3, who were chance witnesses, were

not reliable;

(v) The medical evidence does not support the prosecution case.

On an appeal preferred thereagainst by the State, a Division Bench of the

High Court, on the other hand, by a judgment and order dated 1.9.1999,

reversed the said judgment of the Trial Court.

Mr. Sushil Kumar, learned Senior counsel appearing on behalf of the

appellant submitted that the High Court committed a manifest error in

interfering with the judgment of the Trial Court without assigning

sufficient and cogent reasons therefor. The learned Senior Counsel urged

that the prosecution has failed to prove that the injuries suffered by P.W.

1 was a gun shot injury. The learned Counsel also contended that the

prosecution failed to prove its case from all angles. In this connection,

our attention has been drawn to the fact that if, the medical evidence is

taken to be correct, the mode and manner in which the occurrence took place

cannot be said to have been proved. It is further submitted that the

prosecution has failed to explain as to why the FIR, which is said to have

been lodge on 13.4.1992 at about 00.25 hours, was received by the Court of

Chief Judicial Magistrate on 18.4.1992. The explanation sought to be given

that the said FIR was; not directly sent to the Court, but through the

Circle Officer, also does not satisfy the mandatory requirement of the

provisions contained in section 157 of the Code of Criminal Procedure

("Cr.P.C.", for short). It was furthermore urged that P.W. 5, who had taken

the dead bodies for getting the post-mortem examination done, although

started at about 12.30 in the noon, failed to prove that as to why the

post-mortem examination could not be held till 14.4.1992 and why the

doctors were not available. From the post-mortem report, the learned

counsel would submit it would appear that the death could have taken place

any time between 3. p.m. on 12.4.1992 and 3 pm. on 13.2.1992, as only

liquefied substance had been found in the stomach. Even in regard to the

time of arrival of P.W. 5 at the District Headquarters, the said

explanation has not been entered in the General Diary. He did not even

given any statement before the Investigating Officer under Section 161

Cr.P.C. The learned counsel would submit that P.W. 7, who, at the relevant

point of time, was not the officer-in-charge of Thakurdwara Police Station,

took up the investigation of the case. He, however, investigated the matter

only for eight days. The prosecution has not produced any officer who had

investigated the case thereafter. It was further submitted that even in the

site plan drawn by P.W.7, the place from where the cartridges had been

recovered, has not been shown. We have been taken through the deposition of

the eye-witnesses. Our attention has particularly, been drawn to the fact

that the agricultural lands belonging to P.W. 3 being situated at a

distance of half a kilometer from the place of occurrence, there was no

reason as to why at the time when the incident took place, they would

suddenly come together and witness the entire occurrence. The said

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witnesses, according to the defence, were related to the deceased. It was

further submitted that the prosecution has also failed to explain as to why

Veer Singh, who had accompanied P.W. 1 to the Police Station and who had

admittedly on inimical terms with the Appellant No. 6, had not been

examined. Similarly no explanation has been offered by the prosecution for

non-examination of the eye-witnesses.

Mr. Pramod Swarup, learned counsel appearing on behalf of the State, on the

other hand, supported the impugned judgment of the High Court. The learned

counsel contended that in view of the consistent evidence adduced on behalf

of the prosecution, that not only the FIR was lodged at about mid night at

00.25 hours on 13.4.1992, but the same having been dispatched to the Court

at 6.24 hours, it was established that the FIR was not ante-timed. Our

attention, in this connection, has also been drawn to the fact that in the

inquest report, the crime number has been mentioned, which would clearly

prove that the FIR has been lodged prior thereto. Under what circumstances

it reached to the Court of Chief Judicial Magistrate only on 18.4.1992,

according to Mr. Swarup, might not have been explained but only because of

the said, the prosecution case cannot be thrown out. The learned counsel

further urged that P.W. 1 was medically examined by Dr. S.K. Verma-P.W. 4.

He had only found a lacerated wound which was a simple injury and might not

have thought it necessary to provide him with any further medical treatment

or advised him to take any X-ray on that date itself and thus, the same had

been taken on 18.4.1992.As the report had been proved by the Radiologist,

Dr. Om Mehrotra-P.W. 6, non-production of X-ray plate, according to the

learned counsel, would not be material.

Our attention has been drawn to the evidence of P.W. 9-Dr. Madan Mohan. It

was submitted that from a perusal of the post-mortem examination report, it

would appear that no undigested food was found in the stomach of the

deceased. They had taken their food at 10 a.m. in the morning on 12.4.1992

and only some liquid was found in their stomach which would clearly go to

show that they might have taken water or other liquid substance and in that

view of the matter, the learned Trial Judge was not correct in doubting the

time of death, as disclosed by PWs. 1, 2 and 3.

The Trial Court, as noticed hereinbefore, recorded a judgment of acquittal

upon assigning several reasons. Before adverting to the rival contentions

of the parties, it will be beneficial to remind ourselves about the

established principles of law that the High Court does not ordinarily set

aside a judgment of acquittal in case where two views are possible,

although, the view of the Appellate Court is a more probable one. It is,

however, true that the High Court, while dealing with a judgment of

acquittal, is free to consider the entire evidences on record so as to

arrive at a finding as to whether the views of the Trial Judge is perverse

or otherwise bad in law. The Appellate Court shall also be entitled to take

into consideration as to whether in arriving at a finding of fact, the

Trial Judge has failed to take into consideration admissible evidence and

has taken into consideration evidences brought on record contrary to law.

Similarly, wrong placing of burden of proof may also be a subject matter of

the scrutiny by the Appellate Court.

In Balak Ram v. State of U.P., [1975] 3 SCC 219 this Court has held:

"The aforesaid discussion of the various items of evidence must at

least yield the result that the conclusion to which the learned

Sessions Judge came was a reasonable conclusion to come to. It

cannot be denied that two views of the evidence are reasonably

possible in regard to the participation of Nathoo, Dr. Kohli and

Banney Khan. The High Court, therefore, ought not to have

interfered with the judgment of the Sessions Court in their

favour."

In Shambhoo Missir & Anr. v. State of Bihar, [1990] 4 SCC 17, it was held :

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"The High Court did not deal with any of these circumstances

pointed out by the trial court and has given no reasons to negative

them or to show as to how they were either improper, unjustified or

unreasonable. We are, therefore, of the view that High Court has

interfered with the order of acquittal passed by the trial court

not only for no substantial reasons but also by ignoring material

infirmities in the prosecution case."

Yet again in Shailendra Pratap & Anr. v. State of U.P., [2003] 1 SCC 761,

the law was laid down in the following terms :

"Having heard learned counsel appearing on behalf of the parties we

are of the opinion that the trial court was quite justified in

acquitting the appellants of the charges as the view taken by it

was a reasonable one and the order of acquittal cannot be said to

be perverse. It is well settled that the appellate court would not

be justified in interfering with the order of acquittal unless the

same is found to be perverse. In the present case, the High Court

has committed an error in interfering with the order of acquittal

of the appellants recorded by the trial court as the same did not

suffer from the vice of perversity."

In Narendra Singh & Anr. v. State of M.P., [2004] 10 SCC 699, wherein one

of us (Sinha, J.) was a partly it was categorically held that the Court

must bear in mind the presumption of innocence of the accused in setting

the law. The said view has been reiterated in Ranjitsing Brahmajeetsing

Sharma v. State of Maharashtra & Anr., [2005] 5 SCC 294 in the following

terms :

"Presumption of innocence is a human right. (See Narendrasingh v.

State of M.P., SCC para 31.) Article 21 in view of its expansive

meaning not only protects life and liberty but also envisages a

fair procedure. Liberty of a person should not ordinarily be

interfered with unless there exist cogent grounds therefor. Sub-

section (4) of Section 21 must be interpreted keeping in view the

aforementioned salutary principles. Giving an opportunity to the

Public Prosecutor to oppose an application for release of an

accused appears to be reasonable restriction but clause (b) of sub-

section (4) of Section 21 must be given a proper meaning."

The main contention of the appellant is that the FIR is ante-timed. The

learned Trial Judge, in his judgment, assigned three reasons in support of

his finding that it was so.

It is not in dispute that the written report, although, is said to have

been lodged at 00.25 hours on 13.4.192, the same was received in the Court

of the Judicial Magistrate as late as on 18.4.1992. The only explanation

offered by P.W. 5 was that although the same has been sent at 6.25 in the

evening, it could not be sent directly, as in view of the provisions, the

same was to be sent through the Circle Officer. The State has not offered

any explanation as to why the Circle Officer, a post held by an officer of

the rank of Deputy Superintendent of Police, would not act responsibly.

Section 157 Cr.P.C. as also Article 21 of the Constitution of India provide

for a safeguard in such a manner directing that FIR should be sent to the

Court of Chief Judicial Magistrate within a period of 24 hours.

The learned Trial Judge further was of the opinion that the copy of the FIR

had not been served upon the complainant P.W 1 forthwith and the signature

of the informant had also not been obtained in chik report (sic for check).

There was no reason as to why Rajveer Singh was not sent for medical

examination immediately after registration of the case, although the

Primary Health Centre was situated nearby the police station. The Trial

Judge further noticed that `chiti mazroobi' had not been sent from the

police station to examine the injured. Such a `chiti mazroobi', according

to the learned Trial Judge, would contain not only the details of the

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accused, but full particulars of the case, as also the injuries appearing

on the person of the victim.

The High Court, however, reversed the said findings opining that issuance

of `chiti mazroobi' was not mandatory, particularly, when P.W. 1 was sent

for medical examination along with a Head Constable. It was further opined

that the Investigating Officer not being present in the police station,

there might have been a delay in medical examination by the doctor. The

High Court, without any evidence on record, held that the doctor might not

be available and he must have gone to his house for taking rest. It was

further opined that P.W. 1 being a young man, must have acted in accordance

with the directions of the police.

There is some amount of surmises and conjectures in the opinion of the High

Court. The Investigation Officer-P.W. 7, although, might not have been

present at the police station, but according to the evidence available on

records one R.A. Singh was present. The medical examination report of

Rajveer Singh bore the date as 4.4.1997. Why such a wrong date was

mentioned, has not been explained. P.W. 1 in his cross-examination

categorically admitted that he received the chik report in the morning. A

suggestion was given to P.W. 5 that when he reached the place of

occurrence, the FIR was not in existence. P.W. 7, the Investigating

Officer, in paragraph 19 of his deposition admitted that no date below the

signature of the Circle Officer in he first case diary had been mentioned.

The date, which appeared in the case dairy, is 16.4. In terms of the U.P.

Police Regulation, to which we may short to a little later, the copies of

the case diary were required to be sent to the Superintendent of Police and

other high officer the next day. In this case the said requirement was not

complied with.

P.W. 7 further admitted that some numerical had been written on the said

page but he could not say who wrote them and what was the significance

thereof. It further appears from his evidence that no name of the accused

had been recorded on the inquest and other papers, which were 18 in number.

He could not infer even the gist of the incident from the face of the

inquest report. He admitted that he was not able to understand the contents

of column 2 of the inquest, i.e., the manner of the report. According to

him, he had merely read in the said column "murder by gun shot". He

admittedly had not mentioned about the nature of the weapon or the person

who was responsible for the murder, although in the FIR not only the nature

of weapon was mentioned, it was categorically stated as to how the incident

took place, including the fact that the DBBL gun held by appellant No. 1

herein was a licensed gun.

Yet again, to P.W. 8, Shailesh Tyagi, clear suggestion was given that

"writing of diary was stopped" and FIR was recorded when Investigating

Officer returned in the afternoon on 13.4.1992 from the place of occurrence

and thereafter the special report was sent. The FIR, according to the said

witness, was sent by post. He merely stated that the Constable who went to

the police station, which was at a distance of 50 kms. from the

Headquarter, took with him the FIR also but no date or case number had been

mentioned in the prescribed column.

He accepted that the FIR was produced before the Court of Chief Judicial

Magistrate on 18.4.1992.This Court in Meharaj Singh v. State of U.P.,

[1994] 5 SCC 188, as regards the requirement of sending of the FIR to the

Court, the inquest report as also the requirements to comply with other

formalities provided for external checks, categorically held :

"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

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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 of 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 bee 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 Cr.P.C., 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-time 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."

The said decision of this Court was followed by a Three Judge Bench of this

Court in Thanedar Singh v. State of M.P., [2002] 1 SCC 487 and also in,

Rajeevan & Anr. v. State of Kerala, [2003] 3 SCC 355 and Bijoy Singh & Anr.

v. State of Bihar, [2002] 9 SCC 147.

We are, however, not oblivious of the fact that Meharaj Singh (supra) has

been distinguished in Rajesh @ Raju Chandulal Gandhi & Anr. v. State of

Gujarat, [2002] 4 SCC 426, stating :

"Relying upon the judgment of Meharaj Singh (L/Nk.) v. State of

U.P. the learned counsel appearing for the appellants has submitted

that FIR in a criminal case is a vital and valuable piece of

evidence for the purpose of appreciating the evidence led in the

trial. The object of insisting upon prompt lodging of the FIR is to

obtain information regarding the circumstances in which the crime

was committed including the names of actual culprits and the part

played by them, the weapon of offence used as also the names of the

witnesses. One of the external checks which the courts generally

look for is the sanding of the copy of the FIR along with the dead

body and its reference in the inquest report. The absence of

details in the inquest report may be indicative of the fact that

the prosecution story was still in embryo and had not been given

any shape and that the FIR came to be recorded later on after due

deliberations and consultation and was then ante-timed to give it a

colour of promptly lodged FIR. The reliance of learned counsel for

the appellant on Meharaj Singh case is of no help to him in the

instant case inasmuch as all requisite details are mentioned in

panchnama Exhibit P-32. Mere omission to mention the number of the

FIR and the name of the complainant in Ext. P-37 has not persuaded

us to hold that the FIR was ante-timed in view of the peculiar

facts and circumstances of the case as noticed by the trial court,

the High Court and by us hereinabove."

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Th 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 from 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, know 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 learned Trial Judge, in view of the aforementioned conduct of the

prosecution and the available materials on records, was of the opinion that

defence version is possible. The learned Trial Judge recorded that the

statement of Veer Singh had not been recorded by the Investigating Officer.

The High court opined that Veer Singh was not an eye-witness of the FIR.

The High Court committed an error of record as in the FIR it has clearly

been stated that Veer Singh went with the complainant P.W. 1-Rajveer Singh

to lodge the FIR and he was present in the police station. In the FIR it

was clearly stated :

"On commotion my uncle Veer Singh and Chetram son of Kalu, Shiv

Singh son of Chotte, Sawan son of Bhaggan of our village reached

there flashing their torches."

The High Court was of the view that evidence shows that the investigation

of the case was entrusted to P.W. 7-S.P.S. Tomar, but he was not present at

the police station. The said finding may be correct but it has also been

brought on record that one R.A. Singh was present. There was no reason as

to why he did not taken up the investigation immediately. It is not the

case of the prosecution that S.P.S. Tomar was the officer-in-charge of the

police station. Shri R.A. Singh could have recorded the statement of P.W.

1, as also the said Veer Singh. According to P.W. 7, he recorded the

statement of eye-witnesses after sunrise on 13.4.1992. If that is so, he

should have mentioned the said fact in the general diary after he came back

to the police station. He admittedly did not do so, although, the same was

required to be done in terms of Section 44 of the Police Act, 1861, which

is in the following terms :

"44. Police-officers to keep diary. - It shall be the duty of every

officer-in-charge of a police-station to keep a general diary in

such from as shall, from time to time, be prescribed by the State

Government and to record, therein, all complaints and charges

preferred, the names of all persons arrested, the names of the

complainants, the offences charged against them, the weapons or

property that shall have been taken from their possession or

otherwise, and the names of the witnesses who shall have been

examined.

The Magistrate of the district shall be at liberty to call for and

inspect such diary."

Furthermore, even the statement of Sawan Singh had not been recorded under

Section 161. P.W. 1, who is an eye-witness, stated that his evidence has

been taken at about 7.30 a.m. and only thereafter, inquest had been carried

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out. Although, inquest had been carried out in his presence, his signatures

were not taken on the `Panchayatnama'. P.W. 2-Chet Ram stated that the

inspector did not examine him about the murder at all and he did not meet

the inspector after sealing of the dead bodies. The Investigating Officer,

who was examined as P.W. 7 did not contradict him.

We do not know as to whether copy of the statement of P.W. 2, recorded in

terms of Section 161 Cr.P.C., had been handed over to the accused. Even the

same is not available on record.

The High Court opined that the Investigating Officer might have taken the

statement of the witnesses on the next day when he had conducted a raid on

the house of the accused. Admittedly, the copy of the FIR reached the place

of occurrence only in the morning of 13.4.1992. He did not have with him a

copy of the FIR. Without a copy of the FIR, it is surprising that he could

make raids.

P.W. 1 was stated to have been examined on 4 O`clock in the morning on

13.4.1992. He, however, stated that he was examined at about 1/1.30 a.m.

If, according to the doctor, some X-ray was to be taken, the same should

have been taken immediately. Assuming the High Court is right in its

observations that he must have been busy in relation to the investigation

in regard to death of his parents, he was admittedly available in the town

on 13th April. Post-mortem examination had only been carried out on

14.4.1992. There was not reason as to why he was not taken for an X-ray on

13.4.1992. Even assuming that there was good reason for taking the X-ray on

18.4.1992, it is significant to note, the X-ray plate had not been filed in

the Court. A supplementary injury report had been prepared by P.W. 6, but

the said report is not admissible in evidence, as the primary document, on

the basis whereof he prepared his report, was not made available. He could

have been effectively examined as regards the correctness or otherwise of

the report only if the X-ray plate was placed on record. According to the

Trial Court, although, the number of FIR was mentioned, as we have noticed

hereinbefore, other details were lacking. There Investigating Officer also

did not explain as to why he waited to make the investigation till 8 a.m.

or 9 a.m. of 13th April, 1992.

According to the High Court's opinion :

"It is quite likely that he may have thought of commencing inquest

after finishing the daily chores of life like going to toilet,

taking a bath and having some break fast. After touching a dead

body many people do not eat anything without taking a bath. It is

quite likely that P.W. 7 may have thought of commencing holding of

inquest after taking break fast etc."

No such explanation has been offered by P.W. 7. The opinion of the High

Court is based on the surmises and conjectures. We may, at this juncture,

also notice the medical evidences brought on record. P.W. 9-Dr. Madan

Mohan, performed the post-mortem examination. He conducted the post-mortem

examination on 14.4.1992 both of Ram Gopal and Chatarvati. The death,

according to him, took place on 1+ day before the examination, which would

take us about 10 p.m. on 12.4.1992. The ante-mortem injuries found on the

body of Ram Gopal are already mentioned. He, in his evidence, stated :

"The direction of injury No. 1 of Ram Gopal was from upwards to

downwards. The injury No. 1 is possible is somebody is lying and

one fires from the side of head towards the legs from the top

keeping his barrel parallel to the direction of body, from a

distance. But then in that condition injuries No. 2 and 3 are not

possible from one fire. There is a bleak possibility that Ram Gopal

had received all the three injuries, from three different shots."

The direction and dispersal of injury sustained by Ram Gopal did not tally

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with the prosecution case, which, according to the learned Trial Judge,

raises a doubt about the presence of the prosecution witnesses. The High

Court, however, opined that the pellets were of small size and could be

deflected easily and there is a possibility of it that pellets could change

their direction after hitting them with a force. The said opinion was

arrived at by the High Court on the premise that the dispersal of pellets,

as mentioned in authoritative texts, were regular factory made cartridges.

The High Court failed to notice that appellant No. 1 was said to have been

carrying licensed double barrel gun and thus authoritative text as regard

direction and dispersal of the injuries could be relied upon. The High

Court, in this regard, opined as under :

"The dispersal of the pellets as mentioned in authoritative texts

is with regard to regular factory made cartridges. Besides Budh

Singh, the remaining five accused were carrying country made

pistols and country made guns. It is quite likely that locally made

or hand-filled cartridge had been used where the position of

dispersal of pellets may be entirely diffent."

We have not been shown that there was any injury to the bone. Only Budh

singh, according to P.W. 1, was responsible for firing from his double

barrel licensed gun. It had been noticed by the learned Trial Judge, as

also by us, the ante-mortem injuries suffered by Ram Gopal. The opinion of

the High Court does not find support from the medical evidence.

The prosecution witnesses, namely, P.Ws. 1, 2 and 3 further stated that the

appellants and the deceased had been standing. According to them, only

appellant No. 1 fired one shot. From the medical evidence, however, it

appears that the direction of injury was from upwards to downwards, which

belies the statement of the prosecution witnesses that both of them were in

standing position and in fact, were quarrelling with each other. The

opinion of the doctor is that at the time of firing Ram Gopal must have

been laying down and the firing must have been done from a distance, which

would mean from a higher level. In view of the nature of injuries suffered

by Ram Gopal, such firing was possible from a distance of 40 to 45 feet and

not from a close range. He did not find any charring, bleeding and

tattooing marks. Furthermore, the margin of injury was found to be

inverted. No corresponding exit would of the bullet was found. Even so far

the injuries found on left thigh and right thigh are concerned, the same

were inverted in nature. The reasons assigned by the learned Trial Judge in

this behalf, thus, cannot be said to be perverse.

P.W. 4-Dr. S.K. Verma also noticed only a lacerated wound on the person of

P.W. 1. He did not see any pellet. He did not find any inverted wound. Had

he noticed any, he would have mentioned the same. The injury, according to

the doctor was with a sharp round object, which, according to the defence,

could have been self inflicted. It is also of some significance to note

that both the learned Trial Judge as also the High Court did not place any

reliance on the ballistic report of cogent reasons : Firstly, the site of

recovery of pellet had not been shown in the site plan; Secondly, the

envelope, in which the gun and the empty shell had been packed, did not

bear the signatures of the witness and; Thirdly, the exhibits were sent to

the ballistic expert after more than a month, i.e., on 15.5.1992.

P.W. 1, in his evidence stated that apart from both his parents, he himself

received gun shot injuries in a standing position and the accused were also

standing. According to him, his father Ram Gopal ran towards the southern

direction after being shot, whereas his mother ran towards north-west. He

also ran towards the south. If the medical evidence is to be relied upon,

having regard to the nature of ante-mortem injuries suffered by Ram Gopal,

it might not have been possible for him to stand up and then run to some

distance at all. The High Court referred to the Principles and Practice of

Medical Jurisprudence (1984 Edition) by Taylor and Modi's Medical

Jurisprudence and Toxicology (1967 Edition) for the purpose of showing that

there are many instances where persons had been found to be walking to some

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distance after receiving gun shot injury in the heart or even run to some

distance. The learned counsel appearing on behalf of the State had not been

able to show before us that having regard to the nature of the injuries

suffered by Ram Gopal, it was possible for him to stand up as was in a

laying down position and then, run a few yards.

The learned Trial Judge had drawn an adverse inference as no agricultural

implement, as spade etc., were found at the place of occurrence. The High

Court, however, reversed the said findings stating that the deceased and

their son had been irrigating their field. P.W. 1, however, in his evidence

categorically stated :

"I was away from the Engine. I flashed the torch as others who were

having torches were also far from the engine. I was working at

about 10 steps from the engine when the accused came. My mother and

father were working near me. I was towards south from the engine. I

was making bed (kyari) in the feld. Father was making the bed

(kyari). Mother was sitting. We both were making the bed (kyari)

with held of spade. We left the there was the field. When Inspector

came at the spot, there was no spade. I had shown to the Inspector

the place where we were working. I cannot state the reason if he

has not shown the same in the map. I cannot say who had taken away

the spades."

Apart from the place where they had been working had not been shown in the

site plan, the High Court was also not correct to hold that the

agricultural implements were not necessary for preparing kyaries.

Indisputably it was P.W. 5, who had taken the dead bodies for post-mortem

examination. The High Court noticed that P.W. 5, Constable Chandra Sen gave

contradicting statements. He categorically stated that he had come to the

place of occurrence at about 9 O'clock with the Inspector. How the FIR

reached the hands of the Investigating Officer at 6-6.30 in the morning is

a mystery.

The High Court opined as under :

"It may be mentioned that in his examination-in-chief this witness

has merely stated about carrying the dead bodies to the Head

Quarter for their post mortem examination. At three different

places in his cross-examination (paras 4 and 8) he has said that

the matter had become very old and he does not remember the facts.

He is not an eye witness of the occurrence nor he gave his

statements after refreshing his memory from records. As a constable

posted to a police station he may have accompanied the Sub

Inspector or Inspector of Police to scenes of commission of crime

on many occasions and may have carried the dead bodies to the Head

Quarter for post mortem examination. It is quite likely that on

account of confusion of mixing of facts with some other case, he

may have stated that he reached the spot at 9 a.m. If this is

accepted, it would mean that all the three eye witnesses and P.W. 7

S.P.S. Tomar gave false statements that the latter had reached the

spot around 1.30 in the night. If his entire cross examination is

read, it will clearly show that he did not remember the fact

regarding reaching of the I.O. or distance of the bodies and place

where they were lying and not much importance can be attached to

the same."

The evidence on record does not lead to such an inference. If P.W. 5 is to

be believed, the same would clearly suggest that three eye-witnesses, as

also P.W. 7 gave false evidence. If P.W. 5 made some mixing statement, it

was for the prosecution to examine. According to him, he had been present

at the place of occurrence throughout the day, till the dead bodies were

sent to the Head Quarter.

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The Trial Court disbelieved the evidence of P.W. 2 and P.W. 3. But P.W. 3

had changed his statement regarding place of occurrence where Chatarvati

had sustained injuries. The ante-mortem injuries found on the dead body of

the Ram Gopal clearly belied the statements of P.Ws. 1, 2 and 3. The High

Court, however, held that P.Ws. 2 and 3 were not related to the

complainant. The following statement of P.W. 2 in his cross-examination

goes to show that they were related to the complainant :

"The name of may father was Kallu. I have no knowledge how many

brothers my grandfather, Guljari were. I do not know my grandfather

were five brothers. I do not know if Bihari, Gangu, Bhola, Sandhu

were brothers of my grandfather. Ram Gopal and Veer Singh are son

of Heera. The name of Heers's father was Nannu. The name of Nannu's

father was Bihari. Shiv singh was son of Chotte. I do not know if

Chotte was son of Bihari. I do not know if Nannu and Chotte are

brothers. It is wrong to suggest that I am concealing deliberately

that I am cognate to the Ram Gopal, Veer Singh and Shiv Singh.

Prem and Jagan are separated. They have different fields and

kitchens."

P.W. 3 also stated as under :

"My father were two brothers. The name of father's brother was

Thakura, I do not know the name of my grandfather. It is wrong to

suggest that Nanua was also brother of my father. I do not know the

name of my grandfather was Bihari. Heera is son of Nanua. The name

of Nanua's father is not Bihari. I have no relatoin with Chetram.

Chetram is witness in this case. He has no relationship with me. I

am not uncle of Veer Singh."

It will bear repetition to state that according to P.W. 2, his statements

had not been taken by P.W. 7 under Section 161 Cr.P.C. It is interesting to

note what P.W. 7 in his evidence stated :

"...I cannot tell about the distance between the place where the

dead body of Chatarvati was found and the road which goes towards

village from fields which had been shown in site plan, as I had not

measured the aforesaid distance. I had not seen the fields of

witnesses Veer Singh, Chetram, Shiv Singh & Savan Singh from where

after completion of their work they had reached at the place of

occurrence. I cannot tell the length of the field having trees

belonging to Meer Hasan which is South to the field of witness

Chetram, it is very long. No marks of blood was found between the

place HD and `G'. There was heavy crowd in the night."

We may notice that admittedly the accused No. 6 was not carrying any

weapon. He admittedly had a dispute with Veer Singh. Veer Singh accompanied

the complainant to the police station. No role had been attributed to the

said accused. It is not clear as to why he was implicated. He did not have

any dispute with the deceased, namely, Ram Gopal and Chatarvati. The

prosecution did not lead any evidence as to why he would join the appellant

Nos. 1 and 2 in commission of the crime. Similarly, appellant Nos. 3 and 4

were cousins. Except making a statement that they had been carrying some

country made pistols and fired from their respective weapons, no evidence

has been brought on record to that effect. We also fail to understand as to

why the Investigating Officer, who took over the investigation from P.W. 7

and who had investigated only for 8 days, had not been examined. No

explanation whatsoever has been offered by the prosecution in this regard .

The version of the prosecution is that the lands belonging to P.Ws. 2 and 3

were half a kilometer away and they do not have any field near the field of

the deceased. There was no standing crops in the field. The view of the

Trial Court, having regard to the aforementioned facts and circumstances of

the case, was, therefore, a possible view and as such we need not go into

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the other contentions as regards the motive or time of death, vis-\005-vis,

the medical opinion etc.

For the reasons mentioned hereinbefore, we are of the opinion that the High

Court was not correct in arriving at the conclusion that the view of the

Trial Court was wholly perverse and could not be sustained on the materials

brought on record by the prosecution. This appeal is, therefore, allowed.

The impugned judgment of the High Court is set aside. The appellants are on

bails. They are discharged from their bail bonds.