FIR placed before the Magistrate three days after registration –Cannot be
concluded that FIR was antetimed, ante dated and fabricated.
We also fully agree with the views expressed by the High Court that the FIR was not
anti dated, anti timed or was subsequently created. The verbal submission of PW 1 was
reduced into writing by PW 15 and the same was treated as the FIR (Ext.3). The formal FIR
was marked ext.3/3. Those documents would clearly indicate that the incident took place on
26.4.1984 at about 12 hrs and the FIR was recorded at village Pechaliya at 6.05 PM and after
it was sent to the Khairasole police station which was registered as Khairasole P.S. Case
No.10 dated 26.4.1984 at 7.25 P.M. There is nothing to show that the FIR was anti dated, anti
timed or fabricated. Merely because the FIR was placed before the learned Magistrate on
30.4.1984, three days after registration of FIR, it cannot be said that the FIR was anti timed,
anti dated and fabricated. In fact, no question was put to the Investigating Officer as to the
cause of delay in sending FIR to the Magistrate.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1268 OF 2007
GUIRAM MONDAL .. Appellant
Versus
STATE OF WEST BENGAL .. Respondent
J U D G M E N T
K. S. Radhakrishnan, J
Citation;2013 (2)Crimes 324 (SC)
Dated;April 26, 2013
1. The appellant, the 10th accused in Sessions Case No.20 of 1986, was
charge-sheeted along with others for the offences punishable under Section
147, 148, 149, 323 and 302 of the Indian Penal Code and Section 25/27 of
the Arms Act. The Trial Court, after appreciation of the oral and
documentary evidence vide its judgment dated 22.4.1987 acquitted all the
accused persons, except Accused No.3 Tarun Mondal, who was convicted for
the offences punishable under Section148 and 302 of IPC for causing the
murder of Amrita Dome and sentenced him to suffer imprisonment for life
under Section 302 IPC.
2. The State of West Bengal, aggrieved by the order of acquittal,
preferred G.A. No.22 of 1987 before the High Court of Calcutta. The High
Court vide its judgment dated 28.11.2006 partly allowed the appeal and
convicted the appellant along with four others, while maintaining the order
of acquittal passed by the trial Court, in respect of rest of the accused
persons. Tarun Mondal, 3rd accused, was further found guilty of the murder
of Sultan Khan.
3. We are, in this case, concerned only with the appeal filed by Guiram
Mondal, 10th accused. The prosecution case, in short, is that on 26.4.1984
at about 12 hours the accused persons formed an unlawful assembly with
deadly weapons and took along with them Amrita Dome and Sultan Khan through
a kuchha road in village Pechaliya and, in the process, assaulted both
Amrita Dome and Sultan Khan. Some of the witnesses, who are relatives of
the deceased Amrita Dome, tried to save him but they were also assaulted by
the accused persons and the informant Sadananda Dome (PW1) was shot at by a
pipe-gun and he sustained injuries. While the accused persons were
proceeding as such, Amrita Dome managed to escape from their clutches and
took shelter in the house of Monohar Mondal @ Manu Mondal (PW2). The
accused persons, however, chased Amrita Dome and brought him out of the
house of Manu Mondal and killed him in the passage or pathway lying between
the house of Manu Mondal and his nephew Sahadeb Mondal. Accused persons
after murdering Amrita Dome left the spot to chase Sultan Khan, who was
left injured in front of Durga temple which was close to the house of
Monohar Mondal. Sultan Khan was also murdered by them and they carried
away his death body to the grazing field and left it there.
4. Sadananda Dome (PW1) then passed this information, which was recorded
in writing by PW 15 on 26.4.1984 at 6.05 PM and the same was treated as the
FIR. The same was sent to the police station and was received there at
7.25 PM and on the basis of that FIR a case was registered against the
accused persons and they were charge-sheeted for the offences, already
mentioned earlier. PW 15, the Investigating Officer visited the place of
occurrence and prepared the sketch map and conducted the inquest in the
presence of PW 10, the Pradhan of the Gram Panchayat and sent both the dead
bodies for post-mortem examination through constable PW 13.
5. PW 12 Dr. S. Nath, conducted the post-mortem on both the dead bodies
and opined that the death was due to effect of head injury and associated
injuries which were anti mortem and homicidal in nature. PW 15 on
13.5.1984 arrested various accused persons including the appellant and were
brought before the trial court. On the side of the prosecution 16
witnesses were examined. PW 1 Sadananda Dome, the first informant is the
brother of the deceased Amrita Dome. Monohar Mondal, in whose house the
deceased Amrita Dome took shelter, was examined as PW2. Menoka Dome,
wife of deceased Amrita Dome, was also examined as PW 3 and Sankar Dome,
the father of the deceased Amrita Dome was also examined as PW 5. On the
side of the defence, Joydev Garian DW1 was examined.
6. Dr. S. Nath was examined as PW12, who conducted the post-mortem on
the dead bodies on 27.4.1984 deposed that on the dead body of Amrita Dome
he found (1) one incised wound on right lateral aspect of forehead 2.5” x
2” x .5” (2) one incised wound in mid-region of forehead 3” x 2” x .5” (3)
one incised would 3” below the midpoint of chin 4” x 2” x 2.5” laryns and
tranches cut off. He also noticed fracture of 4th, 5th ^ 6th ribs on the
right side (2) fracture of 4th and 5th ribs on the right side (3) right
lung was found ruptured. Further, it was also noticed a fracture of
frontal bone. PW 12 has opined that the death was due to the effects of
head injury and associated injury was ante mortem and homicidal in nature.
PW12 conducted the post-mortem over the dead body of Sultan Khan and found
(1) one incised would 3” x 2” x 1” on back portion of head (2) one incised
would on left lateral aspect of neck 2” x 1.5” x 1” and (3) one incised
would 4” x 3” x 5” x4” aspect of neck 2” x 1.5” x 1”. He also found
fracture of 4th, 5th, 6th and 7th rib of the right side and fracture of
4th, 5th and 6th ribs of the left side. He found fracture of occipital
bone and both the lungs were ruptured. In his opinion, death was due to
head injury and associated injury ante mortem and homicidal in nature.
7. PW 1, the brother of the deceased Amrita Dome, who is also an injured
witness, had clearly and unequivocally supported the prosecution case and
stated that he had seen the accused persons armed with deadly weapons like
bhojali, axe, pipe gun and dragger etc. catching hold of his brother Amrita
Dome and one Sultan Khan. Amrita Dome had managed to escape from the
clutches of the accused persons and took shelter in the house of Monohar
Mondal. PW1 also deposed that Sultan Khan in that process was half dead
and lying in front of Durga Temple. PW 1 deposed that the accused persons
took Amrita Dome out of the house of Monohar Mondal and assaulted with
lathi, dagger, bhojali etc. PW 1 stated that he tried to save his elder
brother but was shot at by a pipe-gun which caused injury on his shoulder.
PW 1 also noticed that Kristo Gorain cut the throat of Sultan Khan and
thereafter brought Sultan Khan to a grazing field and left the body there.
8. We have also gone through the evidence of the eye-witnesses PWs 2, 3,
4, 8 and 11 and their versions corroborate fully the version of PW 1, the
first informant and eye-witness, relating to the incident of assault and
murder of Amrita Dome and Sultan Khan. The specific part played by the
various accused persons, including the appellant, has been narrated by
those witnesses. PW 2 had deposed that on the date of the incident he was
in the cow-shed and as soon as he heard a hue and cry, he came out and
found that some persons, including the appellant, forcibly taking away
Amrita Dome from the house of Manu Mondal. PW 2 had also requested the
accused persons to not to assault Amrita Dome but was pushed away by the
accused persons. Later he found Amrita Dome dead and the body was lying on
the path-way between his house and the house of Sadananda Mondal.
9. PW 3, the wife of Amrita Dome, also fully supported the prosecution
case and also PW8, the mother of the deceased Amrita Dome and P.W.11, the
wife of the brother of the deceased. The High Court has correctly
appreciated the evidence rendered by those witnesses. The High Court after
examining the oral and documentary evidence came to the conclusion that the
trial court was completely in error by over-looking some crucial and
important evidence and placed much reliance on non-mention of name of
accused persons in the inquest report. The High Court, in our view,
correctly applied the legal principle that non-mention of name of the few
accused persons in the inquest report is of no consequence.
10. The inquest report normally would not contain the manner in which the
incident took place or the names of eye-witnesses as well as names of
accused persons. The basic purpose of holding an inquest is to report
regarding the cause of death, namely whether it is suicidal, homicidal,
accidental etc. Reference may be made to the Judgment of this Court in
Pedda Narayana and others v. State of Andhra Pradesh (1975) 4 SCC 153 and
Amar Singh v. Balwinder Singh and Others (2003) 2 SCC 518. In Radha
Mohan Singh @ Lal Saheb and Others v. State of U.P. (2006) 2 SCC 450, this
Court held that the scope of inquest is limited and is confined to
ascertainment of apparent cause of death. Inquest is concerned with
discovering whether in a given case the death was accident, suicidal or
homicidal, and in what manner or by what weapon or instrument the injuries
on the body appear to have been inflicted. The details of overt acts need
not be recorded in the inquest report. The High Court has rightly held
that the manner and approach of the trial court in disbelieving the
prosecution story by placing reliance on the inquest report was erroneous
and bad in law.
11. We also fully agree with the views expressed by the High Court that
the FIR was not anti dated, anti timed or was subsequently created. The
verbal submission of PW 1 was reduced into writing by PW 15 and the same
was treated as the FIR (Ext.3). The formal FIR was marked ext.3/3. Those
documents would clearly indicate that the incident took place on 26.4.1984
at about 12 hrs and the FIR was recorded at village Pechaliya at 6.05 PM
and after it was sent to the Khairasole police station which was registered
as Khairasole P.S. Case No.10 dated 26.4.1984 at 7.25 P.M. There is
nothing to show that the FIR was anti dated, anti timed or fabricated.
Merely because the FIR was placed before the learned Magistrate on
30.4.1984, three days after registration of FIR, it cannot be said that the
FIR was anti timed, anti dated and fabricated. In fact, no question was
put to the Investigating Officer as to the cause of delay in sending FIR to
the Magistrate.
12. This Court in State of Jammu and Kashmir v. S. Mohan Singh and
Another (2006) 9 SCC 272 held that the mere delay in sending the First
Information Report to a Magistrate cannot be a ground to throw out
prosecution case if the evidence adduced is otherwise found credible and
trustworthy. We are of the view that the High Court has rightly held that
there is no reason to hold that the FIR was a fabricated document or anti
dated or anti timed.
13. We are also not impressed by the argument of Ms. Rupali S Ghose,
learned counsel appearing for the appellant, that not much reliance could
be placed on the evidence of eye-witnesses as most of them are relatives of
Amrita Dome and not a single independent witness was examined by the
prosecution. In our view, merely because a witness is a relative of the
deceased is not a reason for discarding his evidence. Many a time,
strangers will not come forward depose as witnesses, even if they have
witnessed the crime. Further, possibility of influencing such witnesses is
also not uncommon. Evidence of relatives can be acted upon if the court
finds that the evidence of such a witness is reliable and trustworthy. In
this connection reference may be made to the Judgments of this Court in
Seeman @ Veeranam v. State by Inspector of Police (2005) 11 SCC 142,
Alamgir v. State (NCT, Delhi) (2003) 1 SCC 21, Dalbir Kaur and Others v.
State of Punjab (1976) 4 SCC 158, State of U.P. v. Jodha Singh and Others
(1989) 3 SCC 465, Labh Singh and Others v. State of Punjab (1976) 1 SCC
181, Visveswaran v. State represented by SDM (2003) 6 SCC 73.
14. PW2, Monohar @ Manu Mondal, it may be noted, was not a relative of
Amrita Dome. A close scrutiny of the evidence rendered by the eye-
witnesses, some of which are relative of the deceased, clearly establishes
the involvement of the accused. Further, in the cross examination of the
eye witnesses, we have not noticed any serious contradiction, omission,
infirmity, defect or lacuna which can make their evidence unbelievable and
to make them untrustworthy witnesses. Further, the evidence of eye-
witnesses have been fully corroborated by the evidence of PW 12, the
autopsy surgeon relating to the nature of injuries and places of injuries
on the person of the deceased. We notice that, earlier, the appeal was
filed by Guiram Mondal along with Kisto Gorain and Madhusudan Mondal.
Appeal was initially dismissed on 17.9.2007 since they had not complied
with the orders of this Court dated 19.4.2007 for surrendering. Later, the
appellant herein was arrested and his case was restored on 28.11.2008 by
this Court.
15. Considering the totality of the evidence and circumstances of the
case, we are of the view that the High Court has rightly reversed the
judgment of the trial court after finding the appellant guilty under
Section 302 read with Section 148 of IPC for the murder of Amrita Dome and
awarded the sentence of life imprisonment. We, therefore, find no reason
to interfere with the judgment of the High Court. The appeal lacks merit
and the same is dismissed.
……………………………..J.
(K.S. Radhakrishnan)
……………………………..J.
(Dipak Misra)
New Delhi,
April 26, 2013
No comments:
Post a Comment