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TMI Blog2006 (5) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... of their son Rajveer Singh (the first informant). 2. Appellant No. 1-Budh Singh, Appellant No. 2-Prem Singh and Appellant No. 3-Jagan Singh are real brothers. The Appellant No. 4-Mahesh Singh is son of Budh Singh, whereas Appellant No. 6-Rajendra Singh is son of Prem Singh. Appellant No. 5-Ram Raj is not related to other Appellants, but he is stated to be belonging to the group of the other appellants. The deceased Ram Gopal owned agricultural land towards west side of the village Lalapur Pipalsana. Some lands belonging to the Gram Samaj were situate adjoining the said land. Appellant No. 1-Budh Singh and one Kanhai were said to have illegally occupied about 40-45 bighas land of the said Gram Samaj. They allegedly intended to take possession of the land belonging to the deceased on the pretext that the same also belonged to Gram Sabha. The dispute between the parties in regard to the said land had been pending for a long. At about 9.00 p.m. on 12.4.1992, the deceased and his wife Chatarvati were said to be irrigating their sugarcane field with the help of motor pump. It was said to be a moonlit night. A lantern had also been kept hanging from a nearby tree. The Appellants, at that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at an X-ray of the injured part of the body required to be taken. X-ray, however, was taken on 18.4.1992 by P.W.6-Dr. Om Mehrotra, Senior Radiologist District Hospital Moradabad, who found an opaque substance which according to him, was a metallic pellet seen in upper part of right arm of P.W.1. 3. P.W.1 allegedly came back to his village at about 6 a.m. in the morning. The inquest of the dead bodies started at 8 a.m. and concluded at from 9.30 in the morning on 13.4.1992, The dead bodies were sent in a tractor for autopsy at about 12-1230 during the day time by P.W.5-Constable Chandra Sen. The post-mortem examination of the both the dead bodies were, however, not done on 13.4.1992, because no autopsy surgeon was available. The post-mortem of the deceased was carried out by P.W.9-Dr. Madan Mohan, G.D.M.O., Central Police Hospital. Moradabad on 14.4.1992. The ante-mortem injuries found on the dead bodies are as under: Injuries found on the dead body of Ram Gopal: 1. Multiple gun shot wounds entry 0.3 cm x 0.3 cm in front of chest abdomen above the interior sup. Iliac spine in an area 40 cm x 2 cm. Margins inverted and lacerated. No charring blackening and tattooing present. On op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of the Trial Court without assigning sufficient and cogent reasons therefore. The learned Senior Counsel urged that the prosecution has failed to prove that the injuries suffered by P.W.1 was a gun shot injury. The learned Counsel also contended that the prosecution failed to prove its case from all ancles. In this connection, our attention has been drawn to the fact that it the medical evidence is taken to be correct the mode and manner in which the occurrence took place cannot be said to have been proved. It is further submitted that the prosecution has failed to explain as to why the FIR, which is said to have been lodged on 13.4.1992 at about 00.25 hours, was received by the Court of Chief Judicial Magistrate on 18.4.1992. The explanation sought to be given that the said FIR was; not directly sent to the Court but through the Circle Officer, also does not satisfy the mandatory requirement of the provisions contained in Section 157 of the Code of Criminal Procedure ('Cr.P.C.', for short). It was furthermore urged that P.W.5, Who had taken the dead bodies for getting the post-mortem examination done, although started at about 12.30 in the noon, failed to prove tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rime number has been mentioned, which would clearly prove that the FIR has been lodged prior thereto. Under what circumstances it reached to the Court of Chief Judicial Magistrate only on 18.4.1992, according to Mr. Swarup, might not have been explained but only because of the said, the prosecution case cannot be thrown out. The learned Counsel further urged that P.W.1 was medically examined by Dr. S.K. Verma-P.W.4. He had only found a lacerated wound which was a simple injury and might not have thought it necessary to provide him with any further medical treatment or advised him to take any X-ray on that date itself and thus, the same had been taken on 18.4.1992. As the report had been proved by the Radiologist, Dr. Om Mehrotra-P.W.6, non-production of X-ray plate, according to the learned Counsel, would not be material. 7. Our attention has been drawn to the evidence of P.W.9-Dr. Madan Mohan. It was submitted that from a perusal of the post-mortem examination report it would appear that no undigested food was found in the stomach of the deceased. They had taken their food at 10 a.m. in the morning on 12.4.1992 and only some liquid was found in their stomach which would clearly g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own in the following terms: Having heard learned Counsel appearing on behalf of the parties we are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was a reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that the appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity. (d) In Narendra Singh and Anr. v. State of M.P. 2004 CriLJ 2842, wherein one of us (Sinha. J.) was a party, it was categorically held that the Court must bear in mind the presumption of innocence of the accused in setting the law. The said view has been reiterated in Ranjit Singh Brahmajeet Singh Sharma v. State of Maharashtra and Anr. 2005 CriLJ 2533 in the following terms: Presumption of innocence is a human right. (See Narendra singh v. State of M.P., SCC para 31.) Article 21 in view of its expansive meaning not only protects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r medical examination along with a Head Constable. It was further opined that the Investigating Officer not being present in the police station, there might have been a delay in medical examination by the doctor. The High Court without any evidence on record, held that the doctor might not be available and he must have gone to his house for taking rest. It was further opined that P.W.1 being a young man, must have acted in accordance with the directions of the police. 12. There is some amount of surmises and conjectures in the opinion of the High Court. The Investigating Officer-P.W.7, although, might not have been present at the police station, but according to the evidence available on records one R.A. Singh was present. The medical examination report of Rajveer Singh bore the date as 4.4.1997. Why such a wrong date was mentioned, has not been explained. P.W.1 in his cross-examination categorically admitted that be received the chik report in the morning. A suggestion was given to P.W.5 that when he reached the place of occurrence, the FIR was not in existence. P.W.7, the Investigating Officer, in paragraph 19 of his deposition admitted that no date below the signature of the Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The reliance of learned Counsel for the appellant on Meharaj Singh case is of no help to him in the instant case inasmuch as all requisite details are mentioned in panchnama Exhibit P-32. Mere omission to mention the number of the FIR and the name of the complainant in Ext. P-37 has not persuaded us to hold that the FIR was ante-timed in view of the peculiar facts and circumstances of the case as noticed by the trial court, the High Court and by us hereinabove. 17. The State of U.P. had made regulations in terms of the Police Act which are statutory in nature. Regulation 97 provides as to how and in what form the information relating to commission of a cognizable offence when given to an officer-in-charge of a police station, is to be recorded. Such a First Information Report known as chik (check) report should be taken out in triplicate in the prescribed form and the "true facts should be ascertained by a preliminary investigation'. In the event a written report is received, an exact copy thereof should be made and the officer-in-charge of the station is required to sign on each of the pages and put the seal of the police station thereupon. The duplicate copy is to be given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iary.- It shall be the duty of every officer in-charge of a police-station to keep a general diary in such form as shall from time to time, be prescribed by the State Government and to record therein, all complaints and charges preferred, the names of all persons arrested, the names of the complainants, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined. The Magistrate of the district shall be at liberty to call for and inspect such diary. Furthermore, even the statement of Sawan Singh had not been recorded under Section 161. P.W.1, who is an eye-witness, stated that his evidence has been taken at about 7.30 a.m. and only thereafter, inquest had been carried out. Although, inquest had been carried out in his presence, his signatures were not taken on the 'Panchayatnama'. P.W.2-Chet Ram stated that the inspector did not examine him about the murder at all and he did not meet the inspector after sealing of the dead bodies. The Investigating Officer, who was examined as P.W.7 did not contradict him. We do not know as to whether copy of the state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and conjectures. We may, at this juncture, also notice the medical evidences brought on record. P.W.9-Dr. Madan Mohan, performed the post-mortem examination. He conducted the post-mortem examination on 14.4.1992 both of Ram Gopal and Chatarvati. The death, according to him, took place on 1 1/2 day before the examination, which would take us about 10 p.m. on 12.4.1992. The ante-mortem injuries found on the body of Ram Gopal are already mentioned. He, in his evidence, stated: The direction of injury No. 1 of Ram Gopal was from upwards to downwards. The injury No. 1 is possible if somebody is lying and one fires from the side of head towards the legs from the top keeping his barrel parallel to the direction of body, from a distance. But then in that condition injuries No. 2 and 3 are not possible from one fire. There is a bleak possibility that Ram Gopal had received all the three injuries, from three different shots. 23. The direction and dispersal of injury sustained by Ram Gopal did not tally with the prosecution case, which, according to the learned Trial Judge, raises a doubt about the presence of the prosecution witnesses. The High Court, however, opined that the pellets were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this behalf, thus, cannot be said to be perverse. 25. P.W.4-Dr. S.K. Verma also noticed only a lacerated wound on the persons of P.W.1. He did not see any pellet. He did not find any inverted wound. Had he noticed any, he would have mentioned the same. The injury, according to the doctor was with a sharp round object, which, according to the defence, could have been self inflicted. It is also of some significance to note that both the learned Trial Judge as also the High Court did not place any reliance on the ballistic report for cogent reasons: Firstly, the site of recovery of pellet had not been shown in the site plan; Secondly, the envelope, in which the gun and the empty shell had been packed, did not bear the signatures of the witnesses and; Thirdly, the exhibits were sent to the ballistic expert after more than a month, i.e., on 15.5.1992. 26. P.W.1, in his evidence stated that apart from both his parents, he himself received gun shot injuries in a standing position and the accused were also standing. According to him, his tether Ram Gopal ran towards the southern direction after being shot whereas his mother ran towards north-west. He also ran towards the south. If the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ystery. The High Court opined as under: It may be mentioned that in his examination-in-chief this witness has merely stated about carrying the dead bodies to the Head Quarter for their post mortem examination. At three different places in his cross-examination (paras 4 and 8) he has said that the matter had become very old and he does not remember the facts. He is not an eye witness of the occurrence nor he gave his statements after refreshing his memory from records. As a constable posted to a police station he may have accompanied the Sub Inspector or Inspector of Police to scenes of commission of crime on many occasions and may have carried the dead bodies to the Head Quarter for post mortem examination. It is quite likely that on account of confusion or mixing of facts with some other case, he may have stated that he reached the spot at 9 a.m. If this is accepted, it would mean that all the three eye witnesses and P.W.7 S.P.S. Tomar gave false statements that the latter had reached the spot around 1.30 in the night. If his entire cross examination is read, it will clearly show that he did not remember the fact regarding reaching of the I.O. or distance of the bodies and place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards village from fields which had been shown in site plan, as I had not measured the aforesaid distance. I had not seen the fields of witnesses Veer Singh, Chetram, Shiv Singh & Savan Singh from where after completion of their work they had reached at the place of occurrence. I cannot tell the length of the field having trees belonging to Meer Hasan which is South to the field of witness Chetram, it is very long. No marks of blood was found between the place HD and 'G'. There was heavy crowd in the night. 30. We may notice that admittedly the accused No. 6 was not carrying any weapon. He admittedly had a dispute with Veer Singh. Veer Singh accompanied the complainant to the police station. No role had been attributed to the said accused. It is not clear as to why he was implicated. He did not have any dispute with the deceased, namely. Ram Gopal and Chatarvati. The prosecution did not lead any evidence as to why he would join the appellant 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 br ..... X X X X Extracts X X X X X X X X Extracts X X X X
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