Prosecution case cannot be disbelieved only because there is discrepancy in the inquest report, F.I.R. and postmortem report.

The First Information Report, the Inquest Report and Postmortem Report are not the substantive pieces of evidence and variance in those documents without causing prejudice to accused is always not fatal to the prosecution. The F.I.R. is an earliest version of a cognizable offence given to police by the informant which puts the law in motion. It is not necessary that after recording of Fardbeyan no investigation can proceed without registering a formal F.I.R. The F.I.R. is for the purpose of corroborating or contradicting the informant in court. In a case of murder preparation of inquest report is part of investigation. The very purpose of preparing inquest report is to record the apparent cause of the death of deceased, the visible injuries, the place and circumstances in which the dead body is noticed by a police officer, the wearing apparel of the deceased and other formal 16

informations disclosing cause of the death of the deceased. The inquest report is prepared by a police officer who took the charge of investigation or accompany the Investigating Officer and he is not a ballistic or medical expert to give his opinion regarding weapon used or nature of injuries causing death of the deceased. Therefore inquest report could be said a formal document which is being prepared by a police officer in course of the investigation.

8. The postmortem report is the evidence of medical expert, who after noticing the injuries appearing on the dead body gives his opinion regarding cause of death, possible weapon used for causing injuries tentative time of death and the possible informations which the medical expert note down while conducting postmortem examination.

9. The prosecution case cannot be disbelieved only because there is discrepancy in the inquest report, F.I.R. and postmortem report. Non mention of all the sections in the inquest report for which the F.I.R. has been registered is not fatal and it is not the requirement of inquest report. If the I.O. fails to give details of every injury or omit to record certain injury in the inquest report, it is not sufficient to disbelieve the version of the informant disclosing about the use of firearm and injuries sustained to the deceased, made in the F.I.R. The question regarding details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted, is foreign to the ambit and scope of proceeding under Section 174 Cr.P.C. under which an inquest report is prepared. The names of the assailants and the manner of assault are not required to be mentioned in the inquest 17

report.

Jharkhand High Court

Law Tiwari @ Upendra Kumar Tiwary vs The State Of Jharkhand on 7 May, 2012

D.N.Upadhyay, J These criminal appeals have been directed against the judgment of conviction dated 27.5.2002 and sentence dated 28.5.2002 passed by the learned Sessions Judge, Garhwa in connection with Sessions Trial No. 159 of 2001(G)/354 of 2000(P), whereby the appellants have been held guilty for 2
offence punishable under Sections 302/34 I.P.C. and sentenced to undergo R.I. for life. The appellant Pappu Tiwari has also been held guilty for offence punishable under Section 27 of the Arms Act and sentenced to undergo R.I. for 3 years. The sentences so passed were directed to be run concurrently. The Facts:
2. The fact emerges from the Fardbeyan of Pankaj Kumar Singh recorded on 7.3.2000 at 14 hours at Sadar Hospital, Garhwa is that Vikas Kumar Singh (deceased) elder brother of the informant was going to Gym from his house at about 1 P.M. When he reached near the house of Ramadhar Ram, all the appellants who are named in the F.I.R. restrained him and Pappu Tiwari opened fire from his pistol, as a result Vikas Kumar Singh sustained injury and fell down. Thereafter the remaining appellants pounced over Vikas Kumar Singh and indiscriminatory inflected blows by means of dagger. On hulla when the informant and villagers assembled, the miscreants after hurling threats fled away. The informant could further learn that the appellants had used Maruti Van No. DL 2C 5177 belonging to Pintu Tiwari to make their escape good. Vikas Kumar Singh was removed to Sadar Hospital, Garhwa where he was declared dead. The reason behind the incident has been assigned that two days ago, Pappu Tiwari, Sanjay Ram and Luv Tiwari had demanded motorcycle from the deceased to go to Meral but the deceased did not oblige them and therefore an altercation between them had taken place and the accused persons had threatened to kill him within a week. On the basis of Fardbeyan, Garhwa P.S. Case 3
No. 33 of 2000 under Sections 302/34 I.P.C. and Section 27 of the Arms Act against all the six appellants was registered and after investigation they were charge-sheeted. The case was committed to the Court of Sessions and the appellants were put on trial.
3. The prosecution has examined altogether 22 witnesses and proved documents and produced material exhibit to substantiate the charges, whereas appellants have also examined two defence witnesses. Alimuddin Khan and Akshay Kumar Mehta have been examined as C.W. 1 and C.W. 2, respectively. Dr. Mahesh Prasad, P.W. 1 had conducted postmortem examination on the dead body of Vikas Kumar Singh on 7.3.2000 at Sadar Hospital, Garhwa and described the injures noticed by him and proved the postmortem report Ext. 1. Ramadhar Ram P.W. 2, Jitendra Kumar Sinha P.W. 3, Binda Devi P.W. 4 (wife of Ramadhar Ram), Pinki Kumari P.W. 14 (daughter of Ramadhar Ram), Ajit Kumar Ram P.W. 16 and Girija Prasad P.W. 17 are the hearsay witnesses, out of whom Ramadhar Ram is also a witness to the seizure of blood stained soil. Arbind Kumar Singh P.W. 5, Pankaj Kumar Singh P.W. 6 (informant), Pravin Kumar Singh, P.W. 19 are the brothers of the deceased and Md. Zaffar Khan P.W. 21 is the formal witnesses. Subodh Kumar Singh P.W. 13 and Chandraman Singh, P.W. 18 are the independent eye witnesses. Naresh Ram P.W. 7, Shambhu Ram P.W. 8 had witnessed the recovery of a knife. Haider Ali Khan P.W. 9 who is a formal witness has proved the seizure list Ext. 3. Manoj Ram P.W. 10, is a witness in whose presence knife, on the basis of 4
confession made by appellant Sanjay Ram, was recovered from a drain and accordingly seizure list was prepared which was also signed by him. This witness had also proved said knife in court and it was marked material Ext. 1. Lakshman Jha P.W. 11, is a Police Officer and he has seized Maruti Car bearing registration No. DL2C 5177 from the Garage of Md. Muslim and said Maruti Car was allegedly used by the appellants after the incident. Parsuram Singh P.W. 12 is a witness to the inquest and he had reached to he Hospital after knowing about the incident. Shiv Ram P.W. 15 is a Chowkidar who along with a constable took the dead body for postmortem examination. Baldeo Pandey P.W. 22 is the Investigating Officer.
Rajendra Yadav D.W. 1 has proved receipt issued by Xray Clinic indicating that Xray of the right knee joint of appellant Upendra Tiwari was done on 24.1.2000. Samsuddin Ansari D.W. 2 has supported the fact that Upendra Tiwari @ Luv Tiwari had sustained injuries on his knee on 24.1.2000 and he was removed to Hospital on a rickshaw. Alimuddin Khan C.W. 1 has proved the prescription issued by Dr. M.P. Singh. Akshay C.W. 2 had also supported that he had seen plaster on the leg of Luv Kumar Tiwari on 9.3.2000. Aforesaid defence and court witnesses have been examined to show that Luv Tiwari @ Upendra Tiwari had sustained injury on his knee in an accident took place on 24.1.2000 and the knee was under plaster even at the time and date of occurrence.
4. We feel that the the evidence of P.W. 5, P.W. 6, P.W. 13, P.W. 18, P.W. 19 as well as evidence of Dr. P.W. 1 and the I.O. 5
P.W. 22 are required to be summarily reproduced for appreciating the matter.
Arvind Kumar Singh (P.W. 5) happens to be the brother of the deceased and he has stated that on 7.3.2000 at about 1 P.M., his brother Vikash Singh, in course of going to Gym, was intercepted on the way by the appellants who caused him firearm injury and injuries by means of knife. Vikas Singh (deceased) was removed to Sadar Hospital, Garhwa, where he was declared dead. After receiving such information, he went to hospital and learnt that two days ago Pappu Tiwari, Luv Tiwari and Sanjay Ram had threatened Vikas Kumar Singh to kill, when he did not give them motorcycle. On that occasion they had manhandled each other. He further says that Fardbeyan of Pankaj was recorded in hospital in his presence, but he was examined by the police on the next day. Contradictions have been referred to this witness in Paragraph-8. He confirms that inquest report was also prepared but he could not remember whether it was signed by him or not. Pankaj Kumar Singh (P.W. 6) is the informant and he is also brother of the deceased. He has fully supported the prosecution case, as made out by him in the Fardbeyan. He has stated that on 7.3.2000 his brother Vikas Kumar Singh (deceased) left home at 1 P.M. for going to gym but on the way near the house of Ramadhar Ram he was intercepted by the appellants who were armed with pistol, Gupti and Knife. Pappu Tiwari opened fire from his pistol causing injury to Vikash as a result he fell down. Thereafter remaining appellants inflicted blows by means of knife and Gupti. Ajay Pal was armed with 6
Gupti and other appellants were armed with knife. The occurrence was witnessed by Subodh Singh (P.W. 13), Chandraman Singh (P.W. 18) and Pravin Kumar Singh (P.W. 19). The appellants after committing the occurrence fled away on a white coloured Maruti Van. Vikas Singh was removed to Garhwa Hospital on a rickshaw by this witness, where he was declared dead. The police arrived at the hospital, recorded his Fardbean and prepared inquest report in presence of witnesses. The place of occurrence was visited by the police and blood-stained soil was seized in presence of witnesses Jitendra Kumar Singh and Ramadhar Ram. He has proved the inquest report and signature of the witnesses on the seizure list and claimed to identify the appellants in Dock. It is also disclosed that he was receiving regular threats from the appellants and their family members. On 13.6.2001, the relatives of the appellants had caused him injuries by means of firearm, for which a separate case has been registered. He has proved the Fardbeyan as Ext. 4 and signature of Pravin Kumar Singh appearing on the Fardbeyan as Ext. 4/A. Subodh Kumar Singh (P.W. 13) has been examined by the prosecution as an independent eye witness. He has supported the prosecution case as disclosed by the informant. He says that at the time of incident he was tenant in the house of Ganesh Ram and he was residing there to appear in the Matriculation examination with his maternal uncle Chandraman Singh (P.W. 18). He has repeated the same fact that on 7.3.2000 at about 1.00 P.M. Vikas Kumar Singh was restrained by the appellants near the house of Ramadhar Ram. Pappu Tiwari was having 7
pistol, Ajay Pal was having Gupti whereas remaining 4 appellants were having knife in their hands. Pappu Tiwari opened fire from his pistol causing injury to Vikas as a result he fell down. Ajay Pal caused injury by means of Gupti (a long sharp pointed weapon), the remaining 4 appellants inflicted knife blows. Pankaj Singh who was going 50 steps behind Vikas, raised alarm after seeing the incident. When the villagers attracted towards the incident, the accused persons fled away on a Maruti Van which was parked at some distance from the place of occurrence. Pravin Singh (P.W. 19), Pankaj Singh (informant) and the villagers took Vikas Singh to hospital, where he was declared dead. He had a talk with Pankaj Singh in the hospital who had disclosed that 4-5 days ago Pappu Tiwari, Sanjay Ram and Luv Tiwari had demanded motorcycle from Vikas to which he had refused and therefore exchange of hot words took place between them and they had threatened Vikas to kill within a week. This witness has stated that he knows the accused persons because they were the Boss of the area. He has claimed to identify the appellants in Court.
Chandraman Singh (P.W. 18) has also corroborated same detail of the incident as disclosed by Subodh Singh (P.W. 13). In addition to that he says that on 20.2.2000 he had arranged a room on rent in the house of Ganesh Ram in the said village. The house was taken on rent for providing accommodation to Subodh for his appearance in Matriculation examination. They had occupied said house on 27.2.2000 and stayed their for a month. The rent was Rs. 150/- per month and it was vacated on 8
29.3.2000. Location of the house of Ganesh Ram was described in Paragraph-3 of the deposition.
Pravin Kumar Singh (P.W. 19) is another brother of deceased. He has stated that a scooterist informed him that some persons are causing assault to Vikas Singh near the house of Ramadhar Ram. After receiving such information, he rushed on his motorcycle towards the house of Ramadhar Ram. When he reached there, he found his brother Vikas Singh having injures on his persons. Pankaj Singh (P.W. 6), Subodh Kumar Singh (P.W. 13, Chandraman Singh (P.W. 18) and 15-20 villagers were present at the place. He had seen the appellants fleeing towards South. Pankaj Singh narrated about the incident thereafter they took Vikas Singh to hospital on a rickshaw but Vikas Singh could not survive. The Fardbeyan of Pankaj Singh was recorded by the police in the hospital and he had signed the Fardbeyan as attesting witness.
Dr. Mahesh Prasad Singh (P.W. 1) conducted postmortem examination on the dead body of Vikas Kumar Singh on 7.3.2000 at 3.15 P.M. and found as many as 26 ante mortem injuries on the person of the deceased. Injuries No. 1 and 2 were lacerated wounds caused by firearm, whereas injures No. 3 to 9 and 13 to 26 were incised wounds caused by sharp cutting or penetrating weapons. The injuries No. 10, 11, 12 were abrasions caused by hard and blunt substance. He admits that no charring mark regarding injuries No. 1 and 2 is mentioned, but he has mentioned blackened margin against injury No. 1 which was wound of entry. He further admits, while describing the injuries, it 9
was not mentioned that the injuries were penetrating but he has opined that incised as penetrating and it is not specifically mentioned by him which of the injury was fatal. The stomach of the deceased was found empty. He has proved the postmortem report as Ext 1.
Baldeo Pandey (P.W. 22) is the Investigating Officer. On 7.3.2000 he was posted at Garhwa Police Station and he had taken charge of investigation relating to Garhwa P.S. Case No. of 33 of 2000. The statement of the informant was recorded and the place of occurrence was inspected by him. He has proved Fardbeyan and inquest report recorded in the writing of Rajni Kant Jha, an A.S.I. of Police and formal F.I.R. written and signed by the then Officer Incharge, Vinay Krishna. On 7.4.2000, on the basis of confession made by Sanjay Ram, knife used for committing murder was recovered from a big drain known as Jamua Nala. He has proved the seizure list as Ext. 7. The place of occurrence had been described in Para-2 of his deposition. The seizure list of blood-stained soil has been marked as Ext. 8. After completing investigating, he had submitted charge-sheet against the appellants. The confessional statement of Sanjay Ram, recorded by the then Officer Incharge, Vinay Krishna, has also been proved as Ext. 9. The Maruti Van No. DL 2C 5177 which was used by the appellants after committing the offence was seized from the Garage of Md. Muslim. The information received from hospital that a person in injured condition has been brought to the hospital was entered as S.D.E. 144 dated 7.3.2000. Station Diary Entries have been proved as Ext. 10 and 10
10/1. The criminal history of the appellants find mentioned in Paragraph-165, 166 and 167 of the case diary and that part of the case diary have been marked as Ext. 1, 11/1 and 11/2. The contradictions taken from the witnesses have been referred to this witness.
The Submission:
5. The learned senior counsel has assailed the impugned judgment on various grounds. It was argued that there was delay in sending the F.I.R. to Court though it was drawn at 2 P.M. and the distance from the hospital to Court is hardly 1 Km. Since there was delay in sending the F.I.R., it cast serious doubt on the prosecution case. Sri P.P.N. Roy, learned senior counsel, has vehemently argued that the details mentioned in inquest report did not tally either with the statement made in the Fardbeyan or with the findings given by the Doctor in postmortem report. Admittedly, the inquest report was prepared after the Fardbeyan was recorded, but the injuries caused by firearm is absent and the Police Officer had noted only 6 injuries appearing on the dead body caused by knife. The wearing apparel of the deceased were not examined. It was argued that the Doctor who conducted postmortem examination had found as many as 26 injuries on the person of deceased and some of the injures were indicated to be caused on the back of the deceased, though none of the witness has deposed that injuries were caused to the deceased on his back. What they have said is that after receiving gun shot injures the deceased fell down and knife blows were inflicted and he remained lying on his back till he was lifted by the witnesses for 11
his removal to hospital meaning thereby the witnesses have not said about the injuries on back. The informant in his Fardbeyan has stated that the firearm by PappuTiwari was used after which Vikas sustained injuries and fell down and then knife blows by remaining appellants were inflicted, if it was so, the gun shot injury must have been noticed by the police officer who prepared the inquest report. The number of injuries noted in the inquest report are 6, whereas postmortem report discloses about 26 injuries. These are the vital contradictions appearing in those three documents on which the prosecution is relying upon. It was submitted that no one had seen the incident and the police had recorded the statement of so-called eye witnesses including informant after knowing the facts noted down in the postmortem report. The Fardbeyan was recorded in such a manner and with such detail so that it may match with the findings given in the postmortem report. These contradictions in those documents are sufficient to indicate that the Fardbeyan and inquest report are ante dated and ante timed.
The story of use of Gupti is quite absent in the Fardbeyan but the witnesses in their depositions had introduced use of Gupti by appellant Ajay Pal with an intention to match the penetrating incised wound which the Doctor had found at the time of postmortem examination. In the inquest report, Section 34 I.P.C. and Section 27 Arms Act are also missing though in the formal F.I.R. these sections were noted down. The account of ocular evidence given by so-called eye witnesses did not tally with the medical evidence. No witness had described about the injuries 12
inflicted on the back of the deceased. The place of occurrence has not been proved by the prosecution. According to the eye witnesses, the occurrence took place on the road near the house of Ramadhar Ram, but the wife of Ramadhar Ram has said that she had noticed blood-stain at the door of her house. Some of the witnesses have deposed that occurrence took place near the window of the house of Ramadhar Ram, therefore, discrepancy is appearing in the statement of witnesses and the place of occurrence has not been pinpointed. The blood-stained soil, the seized knife were not sent for chemical examination to S.F.S.L. The wearing apparel of the deceased was neither seized nor examined by any expert.
Learned senior counsel has challenged the testimony of the so-called eye witnesses i.e. P.W. 6, P.W. 13 and P.W. 18. He has submitted that P.W. 18 was examined more than two months after the incident. The Investigating Officer has stated that he did not find any independent eye witness, if it was so how P.W. 13 and P.W. 18 were traced out. The informant himself has stated that on Hulla, he reached to the place of occurrence. If the version of this witness is taken to be true, there was no occasion for him to see the gun shot injuries which was alleged to be caused by Pappu Tiwari. He did not say in his Fardbeyan that Gupti was also used by the assailant, but in his deposition in Court he has exaggerated his statement and introduced use of Gupti to match the injuries noticed by the Doctor in the postmortem report. P.W. 13 is a chance witness and he is not the resident of that village where the incident took place. He had 13
come for appearing in the matriculation examination. He had no occasion to know the names of assailants and the explanation extended by him as to how he knew the appellants, is not tenable. The arrival of P.W. 19 at the place of occurrence is also doubtful and the statement made by this witness could not be relied upon in view of the fact that the scooterist who informed him has not been named by this witness, nor examined by the Investigating Officer.
The Statement of three eye witnesses i.e. P.W. 6, P.W. 13 and P.W. 18 are contradictory to each other, variance at many points are apparent and therefore these witnesses could not be considered reliable and no conviction can be based on such testimony.
The scooterist who informed P.W. 19, the rickshaw puller on whose rickshaw the deceased was removed to hospital, Rajnikant Jha, A.S.I. of Police who recorded the Fardbeyan and prepared the inquest report, Md. Muslim from whose garage the Maruti Van was seized, Ganesh Ram in whose house P.W. 13 and P.W. 18 were residing on rent and Vinay Krishna, the then Officer Incharge, Garhwa P.S., have not been examined, which is fatal to the prosecution. The Investigating Officer has performed perfunctory investigating which could not be relied upon. The so- called eye witnesses have made their statements to match the prosecution story and the findings of the Doctor. The conduct of the eye witnesses are doubtful and they cannot considered trustworthy.
Learned Sessions Judge has miserably failed to appreciate 14
the evidence on record, the evidence of defence witnesses and court witnesses. Luv Tiwari has taken a plea of alibi that he was not present at the place of occurrence, rather his leg was under plaster since he had sustained injuries on knee in an accident. The learned senior counsel has placed reliance on the following Judgments:-
i. 2002 Cr. L.J. 341(SC)
ii. 2001 Cr.L.J. 3283 (SC)
iii. E. Cr. C. 200(1) 153
iv. 1999 Cr. L.J. 1132 (SC)
v. 2002(1) E. Cr. L. 463
vi. 1993 (@) E.Cr. C. 516
vii. 2000 Cr. L. J. 599
viii. E.Cr. C. 2001(1) 224 S.C.
6. Learned A.P.P. has opposed the arguments, supported the impugned judgment and the findings of the learned Sessions Judge. It was submitted that the evidence of P.W. 6, P.W. 13 are consistent and free from any doubt and there is no material contradictions in their statements. There was delay in examination of P.W. 18 because he was not the resident of that village and after leaving his Bhagina Subodh Singh (P.W. 13), he had gone to his own village and therefore, he was not available just after the incident to give his evidence. The confession of Sanjay Ram leading to recovery of knife used for committing the offence is admissible in law. There is no irregularity or illegality in recording the Fardbeyan, preparing the inquest report and sending the dead body for postmortem examination. It was 15
pointed out that the occurrence took place at 1 P.M., Fardbeyan was recorded at 2 P.M., inquest report was prepared at 2.10 P.M., the dead body was sent for postmortem examination at 2.45 P.M. and the postmortem commenced at 3.15 P.M. and therefore, within three hours the police has promptly acted upon and completed the initial part of investigation. The witnesses who are residents of the same village were examined and place of occurrence was duly inspected. On the very next date, the F.I.R. was sent to court and there is no need to explain each and every hour taken in sending the F.I.R. to Court. The appellants have rightly been held guilty and inflicted with an appropriate sentence and therefore the appeals are liable to be dismissed. The Discussions & Conclusions:
7. The First Information Report, the Inquest Report and Postmortem Report are not the substantive pieces of evidence and variance in those documents without causing prejudice to accused is always not fatal to the prosecution. The F.I.R. is an earliest version of a cognizable offence given to police by the informant which puts the law in motion. It is not necessary that after recording of Fardbeyan no investigation can proceed without registering a formal F.I.R. The F.I.R. is for the purpose of corroborating or contradicting the informant in court. In a case of murder preparation of inquest report is part of investigation. The very purpose of preparing inquest report is to record the apparent cause of the death of deceased, the visible injuries, the place and circumstances in which the dead body is noticed by a police officer, the wearing apparel of the deceased and other formal 16
informations disclosing cause of the death of the deceased. The inquest report is prepared by a police officer who took the charge of investigation or accompany the Investigating Officer and he is not a ballistic or medical expert to give his opinion regarding weapon used or nature of injuries causing death of the deceased. Therefore inquest report could be said a formal document which is being prepared by a police officer in course of the investigation.
8. The postmortem report is the evidence of medical expert, who after noticing the injuries appearing on the dead body gives his opinion regarding cause of death, possible weapon used for causing injuries tentative time of death and the possible informations which the medical expert note down while conducting postmortem examination.
9. The prosecution case cannot be disbelieved only because there is discrepancy in the inquest report, F.I.R. and postmortem report. Non mention of all the sections in the inquest report for which the F.I.R. has been registered is not fatal and it is not the requirement of inquest report. If the I.O. fails to give details of every injury or omit to record certain injury in the inquest report, it is not sufficient to disbelieve the version of the informant disclosing about the use of firearm and injuries sustained to the deceased, made in the F.I.R. The question regarding details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted, is foreign to the ambit and scope of proceeding under Section 174 Cr.P.C. under which an inquest report is prepared. The names of the assailants and the manner of assault are not required to be mentioned in the inquest 17
report.
10. It was argued that there was mention of 6 injuries in the inquest report but the Doctor had noticed as many as 26 ante mortem injuries in the postmortem report, and such variance in these two documents is fatal to the prosecution, does not appear to be tenable. Inquest report and postmortem report cannot be termed to be substantive evidence and any discrepancy occurring therein can neither be termed to be fatal nor even a suspicious circumstance which would warrant a benefit to the accused and the resultant dismissal of the prosecution case. The contents of the inquest report cannot be termed as evidence, but that can be looked into to test the veracity of the witnesses. [(2010) 10 SCC 374 Sambhu Das v. State of Assam may be seen].
11. We do not consider this proposition that unexplained delay in sending the F.I.R. to court is always fatal to the prosecution. It depends on the facts and circumstances of each and every case. The delay in sending the F.I.R. to Court may be fatal to the facts of one case, but it may not be fatal to the facts of another case. Unless prejudice is not caused the delay in sending the F.I.R. to court is not sufficient to admit that the F.I.R. was ante dated or ante timed. Section 157 Cr.P.C. is like a check to the investigation. As soon as a cognizable offence is reported to the police, the investigation commenced and therefore Section 157 provides that information of such cognizable offence should be communicated to the nearest magistrate having jurisdiction within 24 hours so that the court may have a watch on the action of the police. Here in the instant case, the alleged occurrence took 18
place at 1.00 P.M., the F.I.R. was recorded at 2.00 P.M., the inquest report was prepared at 2.10 P.M. in the hospital where the deceased was brought, the dead body was received in the postmortem house at 2.45 P.M. and the postmortem commenced at 3.15. Thereafter the investigating officer inspected the place of occurrence and recorded the statements of witnesses available. On the very next day, the F.I.R. was received in Court. We do not find, there was delay in sending the F.I.R. and it has caused any prejudice to the appellants.
It was observed by the Hon'ble Apex Court in the case of Munshi Prasad & others v. State of Bihar(2002) 1 SCC 351:- "13. ..... While it is true that Section 157 of the Code makes it obligatory on the officer in charge of the police station to send a report of the information received to a Magistrate forthwith, but that does not mean and imply to denounce and discard an otherwise positive and trustworthy evidence on record. Technicality ought not to outweigh the course of justice- if the court is otherwise convinced and has come a conclusion as regards the truthfulness of the prosecution case, mere delay, which can otherwise be ascribed to be reasonable, would not by itself demolish the prosecution case. The decision of this Court in Shiv Ram v. State of U.P. (1998) 1 SCC 149 lends support to the observation as above."
"14. This Court further in State of Karnataka v. Moin Patel stated vis-a-vis the issue of delay in dispatch of FIR as below (SCC pp. 175-76, para 16)
"16. The matter can be viewed from another angle also. It has already been found by us that the prosecution case that the FIR was promptly lodged at or about 1.30 a.m. and that the investigation started on the basis thereof is wholly reliable and acceptable. Judged in the context of 19
the above facts the mere delay in dispatch of the FIR- and for that matter in receipt thereof by he Magistrate-would not make prosecution case suspect for as has been pointed out by a three-Judge Bench of this Court in Pala Singh v. State of Punjab, the relevant provision contained in Section 157 CrPC regarding forthwith dispatch of the report (FIR) is really designed to keep the Magistrate informed of the investigation and if necessary to give proper direction under Section 159 CrPC and therefore if in a given case it is found that FIR was recorded without delay and the investigation started on that FIR then however improper or objectionable the delayed receipt of the report by the Magistrate concerned may be, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution unsupportable."
12. The learned counsel has given much stress on the non- examination of scooterist who informed P.W. 19 about the occurrence and rickshaw puller on whose rickshaw Vikas Singh (deceased) was removed to hospital. We do not find that due to non-examination of the aforesaid witnesses, any prejudice has caused to appellants. Had they been examined, it would not have made any difference in the prosecution case which is presented by the prosecution. The evidence of I.O. is very clear when he says that the information received from the hospital that an injured has come to hospital and after making Station Diary Entry, the police proceeded to the hospital and found Vikas Singh dead, the informant, his family members and witnesses were present. The Fardbeyan was promptly recorded and the investigation proceeded ahead. Their lordships have held in the judgment of Sambhu Das (Supra)
"Criminal Trial-Examination-Non-examination/failure to 20
examine witness-Non-examination of witness- Whether fatal to prosecution version-One U who informed PW 1 (wife of deceased) about not corrode vitality of prosecution version, particularly when witnesses examined have withstood cross-examination and pointed to accused persons as perpetrators of the crime."
13. Now the next argument with regard to the credibility of the eye witnesses is left to be discussed. At the outset without discussing the evidence of P.W. 18 it can be observed that delay of more than two months in examination of this witness who has claimed himself to be an eye witness can be excluded from any consideration. But on close scrutiny of evidence of P.W. 6 and P.W. 13, we find statements of these witnesses are quite consistent in all material point and the successfully withstood to the test of cross examination. Because of non-mention of the firearm injury in the inquest report, the contention of the informant that he had seen appellant Pappu Tiwari causing firearm injury to deceased cannot be disbelieved. The informant has given details of the assault caused by the appellants and the specific weapon used by them. We do not ready to accept contention of the appellants that the witnesses had exaggerated their statements in court by introducing use of Gupti by one of the appellant Ajay Pal for the reason that Gupti is also a weapon like pointed dagger. The difference between a dagger and a Gupti is the length of such weapon. Gupti is more longer than a dagger but the discrepancy of these weapons have not been questioned to the witnesses concerned. The informant has clearly disclosed in the Fardbeyan that except Pappu Tiwari remaining appellants were having dagger in their hands and they used the same for causing 21
injury to the deceased. In the Court the weapon used by Ajay Pal has been described as Gupti. The Gupti as well as dagger both are sharp cutting pointed weapon which may cause both types of injuries penetrating and incised. The Doctor has found both types of injuries on the person of deceased and therefore, we do not agree that only because use of Gupti was not specifically mentioned in the Fardbeyan, it would amount a contradiction and fatal to the prosecution. Further argument that the witnesses have said that after having firearm injury, the deceased fell down where after other appellants inflicted knife blows which must have been inflicted only on the front part of the body of the deceased is not acceptable. The postmortem report indicates as many as 26 injures on the person of deceased which were caused on both sides of the body. The firearm injury was on the shoulder and it was not fatal and therefore it could not be said that after having that injury the deceased was not in a position to try to ward off further blows caused to him by means of knife by the 5 appellants. It is not expected that if a person is targeted to be inflicted with injury by means of knife by 5 persons he would invite them to cause injuries only on the front part of the body. It is but natural that he would try to ward off as far as practicable and the accused who was 5 in number would always try to inflict injuries from the every possible angle which part of the body would be available. The deceased had sustained altogether 21 incised and penetrating wounds on both sides of his body and therefore we do not accept the argument that the accused persons did not get try to cause injuries on all sides of the body of 22
the deceased and the version of eye witnesses is not believable. We do not find any reason to disbelieve the version of P.W. 13 who is an independent witness and was staying in the village to appear in Matriculation examination. It is not on record that P.W. 13 is in any way interested and we fully agree with the submission made by the prosecution that he is an independent witness. The reason behind the identification of the accused as explained by this witness is also acceptable. He says that the appellants were the Boss of the area and version of the this witnesses stood corroborated from the criminal history which the I.O. had recorded in the case diary. Those parts of the case diary have been exhibited which can be taken note of.
14. The place of occurrence has also been challenged by the appellants. Some of the witnesses have stated that the occurrence took place on the way near the house of Ramadhar Ram. The wife of Ramadhar Ram has said that she had found blood-stain at the door of her house. Some of the witnesses have said that the deceased was lying near the window of the house of Ramadhar Ram. We do not consider such minor discrepancy sufficient to disbelieve the P.O. The consistent evidence on record is that the deceased was intercepted on the way to Gym near the house of Ramadhar Ram and i.e. the place where he was assaulted by the appellants. The number of accused, the injuries inflicted, the manner of occurrence, the description of place of occurrence as disclosed by I.O. are sufficient to prove that the incident took place in front of the house.
15. We do not find the facts and circumstance appearing 23
in the judgments cited by the learned counsel are available in the present case and therefore those judgments are of no help. We have gone through the judgments of Sambhu Das and Munshi Ram (Supra), which give answer to the most of the questions raised by the appellants in course of the arguments. After carefully considering the evidence on record, we do not find any merit in these appeals and accordingly the judgment of conviction passed against all the appellants stands upheld. the sentence passed against appellants except Pintu Tiwari also affirmed. Since Pintu tiwari was minor on the date of incident as reported by learned C.J.M., after holding inquiry and he has already remained in jail for more than 3 years, no further order for his detention could be passed in view of the provisions contained under Section 15/16 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
(D. N. Upadhyay,J)
(R. K. Merathia, J)
(R. K. Merathia, J)
Dated the 7th May , 2012
Jharkhand High Court, Ranchi
MK/N.A.F.R.