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A.F.R.

Court No. - 4

Case :- CRIMINAL APPEAL No. - 757 of 2011

Appellant :- Shyam Singh @ Kala Nad Others

Respondent :- State Of U.P.

Counsel for Appellant :- Anurag Pathak,Mohit Kumar,Noor

Mohammad

Counsel for Respondent :- Govt. Advocate

Hon'ble Bala Krishna Narayana,J.

Hon'ble Prakash Padia,J.

Per Hon'ble B. K. Narayana, J.

Heard Sri Noor Mohammad, learned counsel for the appellants and

Smt. Manju Thakur, learned A.G.A.-I for the State.

This criminal appeal has been preferred by the appellants Shyam

Singh @ Kala (A1), Suresh @ Sonu (A2), Manoj @ Monu (A3) and Jony

(A4) against the judgement and order dated 27.01.2011 passed by

Additional Sessions Judge, Court No. 2, Saharanpur in S.T. No. 150 of

2009, 'State Versus Shyam Singh @ Kala and others' arising out of Case

Crime No. 289 of 2008, P.S.- Fatehpur, District- Saharanpur, by which all

the four appellants have been convicted and sentenced to imprisonment

for life and a fine of Rs. 5000/- each in case of default in payment of fine,

six months additional simple imprisonment u/s 302 r/w 34 I.P.C., six

months rigorous imprisonment and a fine of Rs. 1,000/- each and in case

of default in payment of fine, 45 days additional simple imprisonment u/s

323 r/w 34 I.P.C.

Facts of the case are briefly stated hereinbelow :-

One P.W.3 informant Bhopal Singh gave a written report at P.S.-

Fatehpur, District- Saharanpur (Ext.Ka.1) on 10.11.2008 at about 16.45

hours stating therein that on 09.11.2008 at about 8 p.m., his nephew

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Ravindra Pratap Singh was belaboured by Shyam Singh @ Kala (A1) son

of Beeru, Suresh @ Sonu (A2) son of Mamchand, Manoj @ Monu (A3)

son of Mamchand and Jony (A4) son of Mamchand by 'danda', shears and

iron rods with the intention of causing his death near the shop of 'Chauhal'

on the road in village- Bahera Kala, P.S.- Fatehpur, District- Saharanpur.

When P.W.1 Brijpal Singh son of Balveer Singh and P.W.2 Rajendra

Singh son of Roop Singh reached the place of occurrence to save him, the

aforesaid accused exhorting that they were also sympathizers of Ravindra

Pratap Singh, attacked them also with their weapons with the object of

causing their death and inflicted injuries on them. On hearing the noise,

P.W.4 Sarve Singh son of Gulab Singh, Rampal Singh son of Lekhraj and

several other villagers arrived at the place of incident and witnessed the

occurrence in the moonlight and with great difficulty managed to save

Ravindra Pratap Singh, P.W.1 Brijpal Singh and P.W.2 Rajendra Singh. He

took the injured with the help of villagers to the Government Hospital,

Saharanpur where the doctors considering the serious condition of

Ravindra Pratap Singh, referred him for treatment to higher centre while

admitted P.W.1 Brijpal Singh and P.W.2 Rajendra Singh. The entire

incident was narrated to him by the villagers and the witnesses and he

made a prayer in the written report that appropriate action be taken against

the accused.

On the basis of the written report of the occurrence (Ext.Ka.1),

Case Crime No. 289 of 2008 u/s 307/323 I.P.C. was registered against all

the accused-appellants.

The injuries of Ravindra Pratap Singh (deceased), P.W.1 Brijpal

Singh and P.W.2 Rajendra Singh were examined at S.B.D. Hospital,

Saharanpur on 09.11.2008 at 10.05 p.m., 10.15 p.m. and 10.25 p.m.

respectively by P.W.5 Dr. Naresh Chand, Medical Officer, S.B.D.

Hospital, Saharanpur who also prepared their injury reports (Exts.Ka.3,

Ka.4 and Ka.5).

The injury report of Ravindra Pratap Singh (deceased) indicated

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following injuries on his person :-

(1) L.W. 5 cm x 1.5 cm x bone deep, 5 cm above rt. ear on rt. side

head. Advised x-ray of skull.

(2) L.W. 6 cm x 0.5 cm x bone deep, left side front of head 6 cm

above left eyebrow. Advised x-ray.

The injury report of P.W.1 Brijpal Singh indicated following

injuries on his person :-

(1) T.S. 6 cm x 4 cm on left side head 9 cm above left ear. Advised

x-ray of skull.

(2) Red abraded contused swelling 6 cm x 5 cm back of and

middle of rt. forearm. Advised x-ray of rt. forearm.

(3) L.W. 2.5 cm x 1 cm x bone deep on outer aspect of rt. thigh

and lower part. Advised x-ray of rt. thigh and knee joint.

(4) L.W. 1 cm x 0.5 cm x bone deep front and middle of left leg.

Advised x-ray of left leg.

The injury report of P.W.2 Rajendra Singh indicated following

injuries on his person :-

(1) L.W. 1.5 cm x 1 cm x bone deep in medial end of rt. eyebrow.

Advised x-ray of skull.

(2) L.W. 1.5 cm x 0.5 cm x skin deep on rt. side face, 1.5 cm below

rt. eye.

Supplementary report of P.W.2 Rajendra Singh (Ext.Kha.1) dated

24.12.2008 indicates that no abnormality was found in his skull. His

injury no. 1 which was kept under observation was found to be simple in

nature. Similarly, the supplementary report of P.W.1 Brijpal Singh

(Ext.Kha.2) dated 24.12.2008 also indicates that no abnormality was

found in any of the four injuries received by them and his injuries were

opined to be simple in nature.

The investigation of the case was entrusted to P.W.9 S.I. Rampal

Singh Pawar who started the same on 11.11.2008 and after recording the

statement of the author of check F.I.R. (Ext.Ka.16), arrested the accused-

appellant Shyam Singh @ Kala (A1), Suresh @ Sonu (A2) and Jony (A4)

on the same day and thereafter inspected the place of occurrence at the

instance of P.W.3 informant Bhopal Singh and prepared its site plan

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(Ext.Ka.16). During the course of investigation, he also recovered two

sticks, one iron rod and one 'palta' from the front room of house of Shyam

Singh @ Kala (A1) hidden behind the door and prepared its recovery

memo (Ext.Ka.2). In the meantime, Ravindra Pratap Singh died on

16.11.2008 as a result of the injuries received by him in the occurrence,

intimation whereof was given to the concerned police station vide Death

Intimation Slip (Ext.Ka.22) on which his case was converted to one u/s

302 I.P.C. He also recorded the statement of Manoj @ Monu (A3) on

18.11.2008 who had surrendered himself before the trial court.

Postmortem on the body of deceased Ravindra Pratap Singh was

conducted by P.W.8 Dr. Parveen Kumar Jha, Senior Eye Surgeon, State

Hospital, Gautam Buddh Nagar on 16.11.2008 at 5 p.m. who also

prepared his postmortem report (Ext.Ka.15). He noted following ante-

mortem injuries on the person of Ravindra Pratap Singh :-

(1) Stitched wound in the area 8 cm x 3 cm on the top of rt. side

head (no. of stitches- 7).

(2) Stitched wound 6 cm in length (no. of stitches- 9) on the left

side fore of scalp, 6 cm above the left eyebrow.

(3) Chest tube burnt on the rt. side front of chest 2 cm x 1 cm at 5

cm lateral to rt. mammary gland.

According to P.W.8 Dr. Parveen Kumar Jha, the cause of death of

Ravindra Pratap Singh was a result of excessive bleeding due to ante-

mortem injuries.

On 19.11.2008, the investigation of the case was transferred to

P.W.7 S.I. Subhash Chand Rathore who took possession of the blood-

stained clothes of injured Ravindra Pratap Singh, P.W.1 Brijpal Singh and

P.W.2 Rajendra Singh on 23.11.2008 and prepared their recovery memos

(Exts.Ka.9, Ka.10 and Ka.11) respectively. On 28.11.2008, he obtained

police custody of Manoj @ Monu (A3) from District Jail and got his

statement recorded in the police station on 29.11.2008. On the same day,

P.W.7 S.I. Subhash Chand Rathore went to the house of his brother Suresh

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@ Sonu (A2) and recovered one blood-stained 'saria' like piece of iron

from the north-west corner of the house, hidden under domestic items on

the pointing out of Manoj @ Monu (A3) and prepared its recovery memo

(Ext.Ka.12). He also prepared the site plan of the place of recovery of the

iron rod as (Ext.Ka.13).

After completing the investigation, P.W.7 S.I. Subhash Chand

Rathore filed charge-sheet (Ext.Ka.14) against all the accused-appellants

before Chief Judicial Magistrate, Saharanpur.

Since the offences mentioned in the charge-sheet were triable

exclusively by the Court of Sessions, Chief Judicial Magistrate,

Saharanpur committed the accused for trial for the offences u/s 302, 323,

307 I.P.C. on 02.03.2009 to the Court of Sessions Judge, Saharanpur

where Case Crime No. 289 of 2008 was registered as S.T. No. 150 of

2009, 'State Versus Shyam Singh @ Kala and others' and made over for

trial from there to the Court of Additional Sessions Judge, Court No. 2,

Saharanpur who on the basis of material collected during the investigation

and after affording opportunity of hearing to the prosecution as well as the

accused on the point of charge, framed charge u/s 302/34 & 307/34 I.P.C.

against all the four accused-appellants who abjured the charges framed

against them and claimed trial.

The prosecution in order to prove its case against the accused-

appellants examined as many as nine witnesses of whom P.W.1 Brijpal

Singh, P.W.2 Rajendra Singh, P.W.3 informant Bhopal Singh and P.W.4

Sarva Singh were examined as witnesses of fact while P.W.5 Dr. Naresh

Chand who had examined the injuries of the injured, prepared and proved

their injury reports as (Exts.Ka.3 to Ka.5), P.W.6 Dr. Rajan Dang who had

admitted the injured to the District Hospital, Saharanpur on 09.11.2008

and proved their bed head tickets (Exts.Ka.6 to Ka.8) during the trial,

P.W.7 S.I. Subhash Chand Rathore, the second Investigating Officer of the

case who had completed the investigation and filed charge-sheet

(Ext.Ka.14) against all the accused-appellants, P.W.8 Dr. Parveen Kumar

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Jha who had conducted postmortem on the body of deceased and prepared

his postmortem report (Ext.Ka.15) and P.W.9 S.I. Rampal Singh Pawar,

the first Investigating Officer of the case who had recorded the statement

of author of check F.I.R. (Ext.Ka.16) and had prepared the site plan of the

place of occurrence (Ext.Ka.16), were produced as formal witnesses.

The accused-appellants in their statements recorded u/s 313 Cr.P.C.

denied the prosecution case as false and alleged false implication due to

previous enmity.

Learned Additional Sessions Judge, Court No. 2, Saharanpur, after

considering the submissions advanced before him by the learned counsel

for the parties and scrutinizing the evidence on record, by the impugned

judgement and order, convicted all the four appellants and awarded

aforesaid sentences to them.

Hence, this appeal.

Sri Noor Mohammad, learned counsel for the appellants submitted

that considering the fact that the incident had taken place in the night and

there being inordinate and unexplained delay of almost 20 hours in the

lodging of the F.I.R., without any satisfactory explanation for the same,

possibility of no one having either seen the incident or the incident having

not taken place in the manner as alleged in the F.I.R. or the appellants not

being the perpetrators of the crime and the written report of the incident

was prepared after due deliberations with the ulterior intention of falsely

implicating the appellants in consultation with the police, cannot be ruled

out. It is further contended that the injury reports and the supplementary

reports of the injured fully establish that the injuries which were allegedly

inflicted on them by the appellants were found to be simple in nature and

hence, the recorded conviction of the appellants u/s 302/34 I.P.C. and the

sentence of life imprisonment awarded to them cannot be sustained.

It is next contended by the learned counsel for the appellants that in

view of the injuries allegedly sustained by the deceased Ravindra Pratap

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Singh in the incident and considering the fact that he had died after more

than seven days after the incident, even if the entire prosecution case and

the evidence adduced during the trial for proving the charges framed

against the appellants are believed to be true, the offence, if any,

committed by the appellants does not travel beyond Section 304 (II) I.P.C.

and hence, it is a fit case where this Court, if it comes to the conclusion

that the prosecution has been able to prove the involvement of the

appellants in this occurrence to convert the recorded conviction of the

appellants by the trial court u/s 302/34 I.P.C. to one u/s 304 (II) I.P.C. and

to palliate the sentence of life imprisonment awarded to the appellants to

the period already undergone by them. He lastly submitted that the

irreconcilable discrepancy between the medical evidence and the ocular

version renders the ocular version wholly unreliable and the impugned

judgement and order is liable to be set-aside.

Per contra Smt. Manju Thakur, learned A.G.A.-I appearing for the

State made her submissions in support of the impugned judgement and

order. She submitted that the complicity of the appellants in committing

the crime in question stands fully established from the evidence of the two

injured witnesses, P.W.1 Brijpal Singh and P.W.2 Rajendra Singh whose

presence at the place of incident cannot be doubted even for a moment.

She next submitted that from the medical evidence on record, it is

established beyond all reasonable doubts that the deceased had died as a

result of ante-mortem injuries and hence, there is no merit in the

submission made by learned counsel for the appellants that the offence, if

any, committed by the appellants, in view of the facts on record, does not

travel beyond Section 304 (II) I.P.C. She further submitted that the delay

in lodging the F.I.R. cannot be made a basis for doubting the prosecution

story specially when the three witnesses of fact have fully supported the

prosecution case as spelt out in the F.I.R. She lastly submitted that this

appeal lacks merit and is liable to be dismissed.

We have very carefully heard the learned counsel for the parties and

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perused the entire lower court record.

The only question which arises for our consideration in this appeal

is that whether the prosecution has been able to prove its case against the

accused-appellants beyond all reasonable doubts or not ?

Record shows that the incident had taken place on 09.11.2008 at

about 8 p.m. in which three persons namely deceased Ravindra Pratap

Singh, P.W.1 Brijpal Singh and P.W.2 Rajendra Singh had allegedly

received injuries. Record further indicates that all the three injured were

admitted to S.B.D. District Hospital on the same day at about 10.05 p.m.,

10.15 p.m. and 10.25 p.m. respectively as is evident from their bed head

tickets (Exts.Ka.6 to Ka.8) which were proved by P.W.6 Dr. Rajan Dang

in his evidence tendered during the trial.

We have already referred to the injury reports of the deceased

Ravindra Pratap Singh, P.W.1 Brijpal Singh and P.W.2 Rajendra Singh

and the supplementary reports of P.W.1 Brijpal Singh and P.W.2 Rajendra

Singh which were proved by P.W.5 Dr. Naresh Chand as (Exts.Kha.2 and

1 respectively).

Deceased Ravindra Pratap Singh was referred for better treatment

to Higher Centre on 16.11.2008 at 4 a.m. where he died on the same day

at 11.10 a.m. as is evident from the death intimation slip (Ext.Ka.22)

which was sent to the concerned police station by the Casualty Medical

Officer, P.W.8 Dr. Parveen Verma.

The inquest on the body of deceased Ravindra Pratap Singh was

conducted on 16.11.2008 between 13.45 p.m. and completed at 15 hours.

His inquest report has been brought on record as (Ext.Ka.17). The

postmortem on the body of deceased Ravindra Pratap Singh was

conducted by P.W.8 Dr. Parveen Kumar Jha who also prepared and proved

his postmortem report as (Ext.Ka.15).

P.W.5 Dr. Naresh Chand on page 56 of his cross-examination has

admitted that the injuries which he had found on the person of P.W.1

Brijpal Singh and P.W.2 Rajendra Singh were simple in nature.

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P.W.8 Dr. Parveen Kumar Jha who had conducted postmortem on

the body of deceased had categorically deposed on page 67 of the paper

book in his cross-examination that the internal damage which was caused

to the deceased was a result of injury no. 1 and as far as injury no. 2 is

concerned, the same did not cause any internal damage.

The medical evidence on record which comprises of the injury

reports of deceased Ravindra Pratap Singh, P.W.1 Brijpal Singh and P.W.2

Rajendra Singh (Exts.Ka.3 to Ka.5) and the supplementary reports of

P.W.1 Brijpal Singh and P.W.2 Rajendra Singh (Exts.Kha.2 and Kha.1),

statements of P.W.5 Dr. Naresh Chand, P.W.6 Dr. Rajan Dang and P.W.8

Dr. Parveen Kumar Jha, it is proved that the injuries which the injured had

allegedly sustained in the occurrence, were simple in nature.

As regards deceased Ravindra Pratap Singh, we find that it is

admitted case of the prosecution that he had died after eight days of the

incident. Undoubtedly both the injuries suffered by him were on his head.

It has been argued by the learned counsel for the appellants that the injury

report of the deceased has been tampered with as initially only one injury

was noted by P.W.5 Dr. Naresh Chand on his skull but for the reasons best

known to him, later he made an interpolation in it by recording the second

injury in the injury report by a thin pencil.

In his cross-examination on page 56 of the paper book, P.W.5 Dr.

Naresh Chand stated that he could not notice the second injury on account

of the blood oozing out from the injury no. 1 but when he noted the same,

he recorded it in the injury report but he had neither mentioned the

aforesaid fact nor the fact that the first injury was bleeding so profusely

that he could not notice the same at the time when he had examined the

deceased. He in his cross-examination further very candidly admitted that

the injury no. 2 noted by him in the injury report (Ext.Ka.3) was skin deep

and superficial and the injury no. 1 could also be caused if the deceased's

head was banged against a wall.

Thus, from the perusal of the injury report of the deceased

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(Ext.Ka.3) and the evidence of P.W.5 Dr. Naresh Chand, we have no

hesitation in holding that the deceased had received only one injury

described as injury no. 1 in his injury report (Ext.Ka.3) and the ante-

mortem injury no. 1 in the postmortem report (Ext.Ka.15). Even P.W.8 Dr.

Parveen Kumar Jha who had conducted the autopsy on the deceased's

body, prepared and proved its postmortem report as (Ext.Ka.15), had

categorically deposed on page 67 of the paper book that internal damage

to the deceased's body was caused by injury no. 1. He had not recorded in

the postmortem report that injury no. 2 had caused any internal damage.

Thus, upon a careful scrutiny of the medical evidence on record

which comprises of the injury report (Ext.Ka.3) and postmortem report of

the deceased (Ext.Ka.15), it transpires that the deceased had received only

one injury in the occurrence and the second injury recorded in the injury

report appears to have been interpolated later. The postmortem report of

the deceased indicates fracture of right side temporal bone.

As far as the injuries of the other two injured, P.W.1 Brijpal Singh

and P.W.2 Rajendra Singh, are concerned, we have already recorded that

their injuries were simple and superficial.

We now proceed to examine whether the medical evidence on

record corroborates the ocular version or not ?

The prosecution in order to prove its case against the accused-

appellants, examined as many as four witnesses of fact namely P.W.1

Brijpal Singh, P.W.2 Rajendra Singh, P.W.3 informant Bhopal Singh and

P.W.4 Sarva Singh.

P.W.1 Brijpal Singh in his examination-in-chief stated that accused-

appellants Shyam Singh @ Kala (A1), Suresh @ Sonu (A2), Manoj @

Monu (A3) and Jony (A4) who were present in the Court, were the

residents of his village and were well-known to him. Suresh @ Sonu

(A2), Manoj @ Monu (A3) and Jony (A4) were real brothers and Shyam

Singh @ Kala (A1) was their uncle. The incident had taken place on

09.11.2008 at about 8 p.m. when they were returning after attending a

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marriage ceremony. When they reached near the tea shop of 'Chauhal', all

the four accused-appellants, Shyam Singh @ Kala (A1) and Jony (A4)

armed with sticks and Suresh @ Sonu (A2) and Manoj @ Monu (A3)

armed with iron rods and shears, started beating Ravindra Pratap Singh

with their weapons. In the meantime, someone snatched the shears from

the hands of Manoj @ Monu (A3) on which he picked up the iron rod

lying there and all the four accused-appellants first inflicted injuries on

the head of Ravindra Pratap Singh with their weapons on account of

which he fell down on the ground. Then the accused-appellants also

inflicted injuries on his chest with the object of causing his death and

when he and his companions tried to save him from the accused-

appellants, they also beat them and in the incident, he and P.W.2 Rajendra

Singh also received injuries. The incident was witnessed by P.W.4 Sarva

Singh, Rampal Singh and his brother Kushal Pal who took the injured for

treatment to Saharanpur Hospital where he and the other injured were

medically examined and their injuries were x-rayed. Later Ravindra

Pratap Singh was referred for treatment to Delhi where he was admitted in

Kailash Hospital, NOIDA where he died during treatment. He and P.W.2

Rajendra Singh remained admitted in hospital for 3-4 days and their

injuries were also x-rayed.

P.W.2 Rajendra Singh and P.W.4 Sarva Singh in their evidence

corroborated the evidence of P.W.1 Brijpal Singh on all material

particulars. However, there are glaring contradictions in their statements

with regard to the source of light in which they had seen and identified the

accused. While P.W.1 Brijpal Singh and P.W.2 Rajendra Singh had stated

that they had identified the accused in the moonlight, P.W.4 Sarva Singh

has stated in his examination-in-chief that the place of occurrence was

illuminated with streetlight and he was also carrying a torch with him and

he had seen the occurrence in the light of the torch and streetlight.

P.W.3 informant Bhopal Singh is admittedly not an eye witness of

the occurrence. He in his evidence tendered before the trial court proved

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the written report of the incident which was scribed by him and tendered

at P.S.- Fatehpur (Ext.Ka.1). He in his cross-examination on page 42 of

the paper book has deposed that since after the incident, he had stayed

back with the two injured in the hospital for looking after them, he could

not lodge the F.I.R. of the incident before 10.11.2008.

After going through the oral evidence on record, we find that

although all the three witnesses of fact have deposed in unison that all the

four accused-appellants had assaulted and caused injuries to the deceased

by their weapons on his head and chest but the injury report of the

deceased (Ext.Ka.3) indicates only two injuries, both on his head and out

of the aforesaid two injuries, we found injury no. 2 could be fabricated as

it was recorded in the injury report by P.W.5 Dr. Naresh Chand

subsequently. If we believe the prosecution story to be true then the

deceased could not have escaped with only one injury on his head. The

absence of any injury which could have been inflicted on the deceased's

chest by the weapons which the appellants were carrying, is another

circumstance which belies the claim of P.W.1 Brijpal Singh, P.W.2

Rajendra Singh and P.W.4 Sarva Singh of being the eye witnesses of the

occurrence. The aforesaid irreconcilable conflict between the ocular

version and the medical evidence on record, in our opinion, totally belies

the prosecution story. It is true that there is evidence of P.W.1 Brijpal

Singh and P.W.2 Rajendra Singh on record who according to the

prosecution version, had received injuries in the same incident.

It is undisputed that the evidence of an injured witness stands on a

higher level but at the same time, it is equally true that receiving the

injuries in an incident is a fact which merely proves the presence of the

injured witness at the place of incident but the same is no guarantee of the

fact that whatever the injured witness deposes is gospel truth.

However, since the medical evidence on record indicates that the

injuries allegedly received by them were superficial and simple in nature,

the possibility of the same being received by them in the same incident in

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which the deceased had received injury at the hands of the appellants

considering the nature of weapons with which they had allegedly

assaulted the injured, are too faint and remote. There are, further

discrepancies in the evidence of P.W.1 Brijpal Singh and P.W.2 Rajendra

Singh and P.W.4 Sarva Singh with regard to the source of light in which

they had seen the occurrence and identified the accused.

The medical evidence on record does not support the prosecution

version of the incident according to which the deceased had been

belaboured with sticks, iron rods and shears by all the four appellants and

consequently rendering the eye witness account of the occurrence narrated

by P.W.1 Brijpal Singh, P.W.2 Rajendra Singh and P.W.4 Sarva Singh in

their statements recorded before the trial court, unreliable and

untrustworthy.

The credibility of the prosecution case has also been assailed by the

learned counsel for the appellants on the ground of there being an

inordinate delay in the lodging of the F.I.R.

The issue whether prosecution case is liable to be thrown out

merely on the ground of inordinate delay in lodging the F.I.R is no longer

res integra and stands settled by a catena of a decision of the Apex Court :

The Apex Court in the case of Apren Joseph alias Current

Kunjukunju and others Vs. State of Kerala reported in AIR

1973 Supreme Court 1, has observed as hereunder:- 

"Delay in lodging the first information report quite often results in

embellishment which is a creature of afterthought. On account

of delay, the report not only gets bereft of the advantage of

spontaneity, danger creeps in of the introduction of coloured

version exaggerated account or concocted story as a result of

deliberation and consultation. It is, therefore, essential that the

delay in lodging of the first information report should be

satisfactorily explained."

The Apex Court in the case of Ravinder Kumar and another

Vs. State of Punjab reported in AIR 2001 SC 3576, has observed

as hereunder:-

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"The attack on prosecution cases on the ground of delay in

lodging FIR has almost bogged down as a stereotyped

redundancy in criminal cases. It is a recurring feature in most of

the criminal cases that there would be some delay in furnishing

the first information to the police. It has to be remembered that

law has not fixed any time for lodging the FIR. Hence a delayed

FIR is not illegal. Of course a prompt and immediate lodging of

the FIR is the ideal as that would give the prosecution a twin

advantage. First is that it affords commencement of the

investigation without any time lapse. Second is that it expels the

opportunity for any possible concoction of a false version. Barring

these two plus points for a promptly lodged FIR the demerits of

the delayed FIR cannot operate as fatal to any prosecution case.

It cannot be overlooked that even a promptly lodged FIR is not an

unreserved guarantee for the genuineness of the version

incorporated therein.

In State of Himanchal Pradesh Vs. Gian Chand reported

in AIR 2001 (1) SC 2075, the Apex Court reiterated as hereunder:-

"Delay in lodging the FIR cannot be used as a ritualistic formula

for doubting the prosecution case and discarding the same

solely on the ground of delay in lodging the first information

report. Delay has the effect of putting the Court in its guard to

search if any explanation has been offered for the delay, and if

offered, whether it is satisfactory or not. If the prosecution fails to

satisfactorily explain the delay and there is possibility of

embellishment in prosecution version on account of such delay,

the delay would be fatal to the prosecution. However, if the delay

is explained to the satisfaction of the court, the delay cannot by

itself be a ground for disbelieving and discarding the entire

prosecution case."

Thus, the legal position which emerges after going through the

gamut of authorities on the issue referred to hereinabove is that it is

settled principle of criminal jurisprudence that mere delay in lodging the

F.I.R. may not prove fatal in all cases, but in the given circumstances of

the case, delay in lodging the F.I.R. can be one of the factors which may

erode the credibility of the prosecution version but delay in lodging the

F.I.R. cannot be a ground itself for throwing away the entire prosecution

version as given in the F.I.R. and later substantiated by the evidence,

unless there are indications of fabrication. The Court has further to seek

explanation for delay and check the truthfulness of the version to inquire

and if the court is satisfied, then the case of prosecution cannot fall on this

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ground alone.

We now proceed to test the credibility of the F.I.R. in this case on

the touch stone of the aforesaid principles and evaluate and scrutinize the

oral evidence on record with the object of assessing whether the delay in

lodging of the F.I.R. has been satisfactorily explained.

We have very carefully gone through the evidence of P.W.3

informant Bhopal Singh in this case but we are constrained to observe that

he has failed to come up with any satisfactory explanation for the delay of

20 hours in lodging the F.I.R. As already noted with regard to the

explanation for the delay in lodging of the F.I.R., P.W.3 informant Bhopal

Singh, in his examination-in-chief had deposed that after the incident, he

had taken all the three injured namely deceased Ravindra Pratap Singh,

P.W.1 Brijpal Singh and P.W.2 Rajendra Singh to the hospital from where

Ravindra Pratap Singh was referred to a Higher Centre on which other

persons who were accompanying him, had left for NOIDA along with

Ravindra Pratap Singh while he had stayed back with the other two

injured, P.W.1 Brijpal Singh and P.W.2 Rajendra Singh, who were

admitted to the hospital and as such he could not lodge the F.I.R. before

10.11.2008 at 16.45 hours. By deposing the aforesaid fact, P.W.3

informant Bhopal Singh wanted to give an impression that after his

companions had taken the deceased Ravindra Pratap Singh to NOIDA for

better treatment on the same day, he had stayed back in the District

Hospital, Saharanpur for looking after the other two injured and hence, he

was left alone. However, the fact stated by P.W.3 informant Bhopal Singh

in his examination-in-chief that his companions had left for NOIDA with

the deceased Ravindra Pratap Singh on the same day on which his injuries

were examined in the District Hospital, Saharanpur, stands totally falsified

from the recitals contained in the Death Intimation Slip of deceased

Ravindra Pratap Singh (Ext.Ka.22) issued by the Casualty Medical

Officer of Kailash Hospital and Heart Centre, NOIDA to the effect that

Ravindra Pratap Singh was admitted to Kailash Hospital, NOIDA on

16

16.11.2008 at 4 a.m. and he expired on the same day at 11.10 a.m. Since,

it is established from the perusal of the Death Intimation Slip (Ext.Ka.22)

that deceased Ravindra Pratap Singh was admitted to Kailash Hospital,

NOIDA on 16.11.2008 at 4 a.m., the fact deposed by P.W.3 informant

Bhopal Singh in his examination-in-chief that he was left alone in the

hospital for looking after the other two injured as the persons who had

accompanied him to the District Hospital, Saharanpur, had left for

NOIDA along with Ravindra Pratap Singh for better treatment, stands

totally belied and it is proved that he had deposed incorrect facts before

the trial court for justifying the inordinate delay on his part in lodging the

F.I.R. of the incident.

Thus, we find that the explanation given by P.W.3 informant

Bhopal Singh for the inordinate delay of about 20 hours in lodging the

F.I.R., neither inspires confidence nor the same is true.

The delay of almost 20 hours in lodging the F.I.R., under the facts

and circumstances of the case, for which no satisfactory explanation has

been furnished by the prosecution, rather a false explanation was given by

P.W.3 informant Bhopal Singh in his statement, in our opinion, shatters

the credibility of the prosecution case. The credibility of the F.I.R. itself

being under a heavy cloud, in our opinion, it would not be safe to uphold

the recorded conviction of the appellants and confirm the sentence of life

imprisonment awarded to them on the basis of the prosecution story

narrated therein. The deceased had received only one injury on his head,

author whereof is not known, and no injury on his chest, although the

prosecution case is that all the four accused-appellants had assaulted him

with their weapons causing injuries on his head and chest. The injury

report of the deceased (Ext.Ka.3) does not disclose any injury on his

chest. The postmortem report of the deceased however indicates an injury

on his chest which has been described as 'chest tube burn on the right side

front of chest' which could not have been caused by any of the weapons

with which the accused were allegedly armed with at the time of the

17

assault and the same may have been caused during his treatment. The

possibility of the second injury found on the head of the deceased being

fabricated also cannot be ruled out under the facts and circumstances of

the case and the evidence on record.

Another aspect of the matter which has intrigued us is that although

the deceased after receiving the injuries in the occurrence, had remained

alive for almost eight days but no effort was made to record his statement

as is evident from the facts deposed by P.W.6 Dr. Rajan Dang in his cross-

examination as his statement would have been the best piece of evidence

corroborating the ocular version as deposed by the three so-called eye

witnesses of the occurrence.

Thus, upon a wholesome consideration of the facts of the case,

attending circumstances and a threadbare evaluation of the evidence on

record, we do not find that the prosecution has been able to prove its case

against the accused- appellants beyond all reasonable doubts and they are

entitled to benefit of doubt.

The appeal succeeds and is accordingly allowed. The impugned

judgement and order are hereby set-aside.

Shyam Singh @ Kala (A1), Suresh @ Sonu (A2), Manoj @ Monu

(A3) and Jony (A4) are in jail. They shall be released forthwith unless

they are wanted in any other case subject to their complying with the

provisions of Section 437-A of Cr.P.C.

There shall however, be no order as to costs.

Order Date :- 19.9.2019

KS