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CASE NO.:

Appeal (crl.) 402 of 2006

PETITIONER:

Mahmood & Anr

RESPONDENT:

State of U.P.

DATE OF JUDGMENT: 15/11/2007

BENCH:

Altamas Kabir & B. Sudershan Reddy

JUDGMENT:

J U D G M E N T

B.Sudershan Reddy, J.

This is an appeal by special leave preferred by

the appellants \026 Mahmood and Khaliq. The appellant \026

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 \026 appellant No.1 both

armed with guns, Khalid \026 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 \026 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

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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.

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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. \023If 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.\024

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. \023But 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.\024

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 prosecution\022s 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

court in Alla China Apparao & Ors. Vs. State of A.P.

wherein this court while construing the expression

\023forthwith\024 in Section (1) of Code of Criminal

Procedure observed that \023 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 \023forthwith\024 within the meaning of Section

157(1) obviously cannot mean that the prosecution is

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required to explain every hour\022s 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

magistrate\022s 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.\024

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.

Vs. State of Punjab and Datar Singh vs. The State of

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.

In Budh Singh & Ors. Vs. State of UP , this court

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

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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 \023the 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.\024

We do not find any fallacy or error in the

reasoning of the High Court. For the aforesaid reasons

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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

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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

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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 \023from the body of deceased one bullet, one

cover \021tikli\022, two dat and 40 \021chare\021 shots were

taken out, put in packet and sealed \005\005..\024 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.