TMI Blog2006 (5) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... t Nos. 1 and 2 in commission of the crime. Similarly, appellant Nos. 3 and 4 were cousins. Except making a statement that they had been carrying some country made pistols and fired from their respective weapons, no evidence has been brought on record to that effect. We also fail to understand as to why the Investigating Officer, who took over the investigation from P.W.7 and who had investigated only for 8 days, had not been examined. No explanation whatsoever has been offered by the prosecution in this regard. The version of the prosecution is that the lands belonging to P.Ws.2 and 3 were half a kilometer away and they do not have any field near the field of the deceased. There was no standing crops in the field. The view of the Trial Court having regard to the aforementioned facts and circumstances of the case, was, therefore, a possible view and as such we need not go into the other contentions as regard the motive or time of death, vis-a-vis, the medical opinion etc. Thus, we are of the opinion that the High Court was not correct in arriving at the conclusion that the view of the Trial Court was wholly perverse and could not be sustained on me materials brought on record by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al land of the deceased. Appellant No. 1-Budh Singh was said to be armed with double barrel gun, whereas Prem Singh, Jagan Singh and Ram Raj were armed with country made guns and Mahesh and Rajendra Singh were said to be armed with country made pistols. They stopped running of the motor, as a result whereof there had been exchange of abuses. The appellants allegedly said that the land belonged to Gram Samaj and they would cultivate the same. At that Time, hearing the noise, Chet Ram-P.W.2. Shiv Singh-P.W.3. Veer Singh and Sawan Singh allegedly arrived at the place of occurrence. They were allegedly having torches in their hands. The Appellant No. 1-Budh Singh allegedly fired from his gun upon Ram Gopal, whereas Appellant No. 5-Ram Raj fired a shot on the wife of the deceased Chatarvati. Appellant No. 6-Rajendra Singh is said to have fired a shot on Rajveer Singh. Other accused persons also stated to have tired from their respective weapons. On receiving injuries on their person, both Ram Gopal and his wife Chatarvati ran a few paces, but fell down dead at some distance, P.W.1-Rajveer Singh, who was, at the material time, about 16 years old, thereafter went to the house of one Hori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m underneath are lacerated. Direction posterior and downward. 2. Gun shot wound 0.3 cm x 0.3 cm entry in front and outer and upper part of right thigh above 12 cm below the ant. Sup. Iliac spine, margin lacerated and inverted. No charring blackening and tattooing present. 3. Gun shot Wound entry 0.3 cm x 0.3 cm in front of left thigh...(sic) 10 cm below interior, superior Iliac spine...(sic) with margins inverted. No charring blackening present. Injuries found on the dead body of Chatarvati: 1. Gun shot wound of entry 6 cm x 3 cm on rt. Side chest upper part over clavicle medial part x chest cavity deep. Piece of left lung cavity out of no injuries. Margin lacerated inverted. Skin around this wound is charred, blackened and tattooing present. The right clavicle 1st rib, rt. and IInd rib, right fractured. Direction from anterior to poster ally medically and size 18 metallic pellets, one Cap and two wadding recovered from the right lung and cavity with Abrasion 2 cm x 1/2 cm on left side chest below the left clavicle middle part. 4. Before the learned Trial Court, P.W.1-Rajveer Singh, P.W.2-Chet Ram and P.W.3-Shiv Singh were examined as eye-witnesses to the occurrence. Three police p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14.4.1992 and why the doctors were not available. From the post-mortem report the learned Counsel would submit it would appear that the death could have taken place any time between 3 p.m. on 12.4.1992 and 3 p.m. on 13.4.1992, as only liquefied substance had been found in the stomach. Even in regard to the time of arrival of P.W.5 at the District Headquarters, the said explanation has not been entered in the General Diary. He did not even give any statement before the Investigating Officer under Section 161 Cr.P.C. The learned Counsel would submit that P.W.7, who at the relevant point of time, was not the officer-in-charge of Thakurdwara Police Station, took up the investigation of the case. He, however, investigated the matter only for eight days. The prosecution has not produced any officer who had investigated the case thereafter. It was further submitted that even in the site plan drawn by P.W.7, the place from where the cartridges had been recovered, has not been shown. We have been taken through the deposition of the eye-witnesses. Our attention has, particularly, been drawn to the fact that the agricultural lands belonging to P.W.3 being situated at a distance of half a kilo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce and in that view of the matter, the learned Trial Judge was not correct in doubting the time of death, as disclosed by PWs.1, 2 and 3. 8. The Trial Court as noticed hereinbefore, recorded a judgment of acquittal upon assigning several reasons. Before adverting to the rival contentions of the parties, it will be beneficial to remind ourselves about the established principles of law that the High Court does not ordinarily set aside a judgment of acquittal in case where two view are possible, although, the view of the Appellate Court is a more probable one. It is, however, true that the High Court, while dealing with a judgment of acquittal, is free to consider the entire evidences on record so as to arrive at a finding as to whether the views of the Trial Judge is perverse or otherwise bad in law. The Appellate Court shall also be entitled to take into consideration as to whether in arriving at a finding of fact, the Trial Judge has failed to take into consideration admissible evidence and has taken into consideration evidences brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of the scrutiny by the Appellate Court. (a) In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinarily be interfered with unless there exist cogent grounds therefore. Sub-section (4) of Section 21 must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the Public Prosecutor to oppose an application for release of an accused appears to be reasonable restriction but Clause (b) of Sub-section (4) of Section 21 must be given a proper meaning. The main contention of the appellant is that the FIR is ante-timed. The learned Trial Judge, in his judgment assigned three reasons in support of his finding that it was so. 9. It is not in dispute that me written report although, is said to have been lodged at 00.25 hours on 13.4.1992, the same was received in the Court of the Judicial Magistrate as late as on 18.4.1992. The only explanation offered by P.W.5 was that although the same has been sent at 6.25 in the evening, it could not be sent directly, as in view of the provisions, the same was to be sent through the Circle Officer. The State has not offered any explanation as to why the Circle Officer, a post held by an officer of the rank of Deputy Superintendent of Police, would not act responsibly. Section 157 Cr.P.C. as also Article 21 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se diary, is 16.4. In terms of the U.P. Police Regulation, to which we may advert to a little later, the copies of the case diary were required to be sent to the Superintendent of Police and other high officer the next day. In this case the said requirement was not complied with. 13. P.W.7 further admitted that some numerical had been written on the said page but he could not say who wrote them and what was the significance thereof. It further appears from his evidence that no name of the accused had been recorded on the inquest and other papers, which were 18 in number. He could not infer even the gist of the incident from the face of the inquest report. He admitted that he was not able to understand the contents of column 2 of the inquest i.e..., the manner of the report. According to him, he had merely read in the said column murder by gun shot . He admittedly had not mentioned about the nature of the weapon or the person who was responsible for the murder, although in the FIR not only the nature of weapon was mentioned, it was categorically stated as to how the incident took place, including the fact that the DBBL gun held by appellant No. 1 herein was a licensed gun. 14. Yet a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence in the inquest report. Even though the inquest report prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8. The said decision of this Court was followed by a Three Judge Bench of this Court in Thanedar Singh v. State of M.P. 2002 CriLJ 254 and also in, Rajeevan and Anr. v. State of Kerala 2003 CriLJ 1572 and Bijoy Singh and Anr. v. State of Bihar 2002 CriLJ 2623. 16. We are, however, not oblivious of the fact that Meharaj Singh (supra) has been distinguished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Police. Regulation 108 emphasizes the need of maintaining the case diary stating that time and place should be noted in the diary by the Investigating Officer when beginning the investigation; whereafter only, he should inspect the scene of the alleged offence and question the complainant and any other person who may be able to throw light on the circumstances. Regulation 109 provides that the case diary must contain the particulars required by Section 172 of the Code of Criminal Procedure in sufficient detail so as to enable the supervising officer to appreciate the facts. 18. The learned Trial Judge, in view of the aforementioned conduct of the prosecution and the available materials on records, was of the opinion that defence version is possible. The learned Trial Judge recorded that the statement of Veer Singh had not been recorded by the Investigating Officer. The High court opined that Veer Singh was not an eye-witness of the FIR. The High Court committed an error of record as in the FIR it has clearly been stated that Veer Singh went with the complainant P.W.1-Rajveer Singh to lodge the FIR and he was present in the police station. In the FIR it was clearly stated: On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not available on record. 20. The High Court opined that the Investigating Officer might have taken the statement of the witnesses on the next day when he had conducted a raid on the house of the accused. Admittedly, the copy of the FIR reached the place of occurrence only in the morning of 13.4.1992. He did not have with him a copy of the FIR. Without a copy of the FIR, it is surprising that he could make raids. P.W.1 was stated to have been examined on 4 O'clock in the morning on 13.4.1992. He, however, stated that he was examined at about 1/130 a.m. 21. If, according to the doctor, some X-ray was to be taken, the same should have been taken immediately. Assuming the High Court is right in its observations that he must have been busy in relation to the investigation in regard to death of his parents, he was admittedly available in the town on 13th April. Post-mortem examination had only been carried out on 14.4.1992. There was no reason as to why he was not taken for an X-ray on 13.4.1992. Even assuming that there was good reason for taking the X-ray on 18.4.1992, it is significant to note, the X-ray plate had not been filed in the Court. A supplementary injury report had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion after hitting them with a force. The said opinion was arrived at by the High court on the premise that the dispersal of pellets, as mentioned in authoritative texts, were regular factory made cartridges. The High Court failed to notice that appellant No. 1 was said to have been carrying licensed double barrel gun and thus authoritative text as regard direction and dispersal of the injuries could be relied upon. The High Court in this regard, opined as under: The dispersal of the pellets as mentioned in authoritative texts is with regard to regular factory made cartridges. Besides Budh Singh, the remaining five accused were carrying country made pistols and country made guns. It is quite likely that locally made or hand-filled cartridge had been used where the position of dispersal of pellets may be entirely different. We have not been shown that there was any injury to the bone. Only Budh singh, according to P.W.1, was responsible for firing from his double barrel licensed gun. It had been noticed by the learned Trial Judge, as also by us, the ante-mortem injuries suffered by Ram Gopal. The opinion of the High Court does not find support from the medical evidence. 24. The prose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have been possible for him to stand up and then run to some distance at all. The High Court referred to the Principles and Practice of Medical Jurisprudence (1984 Edition) by Taylor and Modi's Medical Jurisprudence and Toxicology (1967 Edition) for the purpose of showing that there are many instances where persons had been found to be walking to some distance after receiving gun shot injury in the heart or even run to some distance. The learned Counsel appearing on behalf of the State had not been able to show before us that having regard to the nature of the injuries suffered by Ram Gopal, it was possible for him to stand up as was in a lying down position and then, run a few yards. 27. The learned Trial Judge had drawn an adverse inference as no agricultural implement as spade etc., were found at the place of occurrence. The High Court however, reversed the said findings stating that the deceased and their son had been irrigating their field. P.W.1, however, in his evidence categorically stated: I was away from the Engine. I flashed the torch as others who were having torches were also far from the engine. I was working at about 10 steps from the engine when the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference. If P.W.5 is to be believed, the same would clearly suggest that three eye-witnesses, as also P.W.7 gave false evidence. If P.W.5 made some mixing statement it was for the prosecution to examine. According to him, he had been present at the place of occurrence throughout the day, till the dead bodies were sent to the Head Quarter. 29. The Trial Court disbelieved the evidence of P.W.2 and P.W.3, But P.W.3 had changed his statement regarding place of occurrence where Chatarvati had sustained injuries. The ante-mortem injuries found on the dead body of the Ram Gopal clearly belied the statements of P.Ws. 1, 2 and 3. The High Court, however, held that P.Ws.1 and 2 were not related to the complainant. The following statement of P.W.2 in his cross-examination goes to show that they were related to the complainant: The name of my lather was Kallu. I have no knowledge how many brothers my grandfather, Guljari were. I do not know my grandfather were five brothers. I do not know if Bihari, Gangu, Bhola, Saadhu were brothers of my grandfather. Ram Gopal and Veer Singh are son of Heera. The name of Heera's father was Nannu. The name of Nannu's lather was Bihari. Shiv singh was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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