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Mahender Singh and anr. Vs. the State of Raj. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Appeal No. 308 of 1972
Judge
Reported in1972WLN790
AppellantMahender Singh and anr.
RespondentThe State of Raj.
DispositionAppeal allowed
Cases ReferredBala Krishna v. State of Orissa
Excerpt:
.....and consultation.;(b) cr. p.c. - fir--object of--delay in filing fir--effect of.;first information report in a. criminal case is a vital and valuable piece of evidence for the purpose of corroborating oral evidence adduced at the trial.;if the first information report is filed with delay, there is the danger of the introduction of coloured version, exaggerated account or concocted story as a result of consultation or deliberation.;(c) words and phrases - 'forth with' in section 157, cr. p.c--meaning of.;it is true that though the word 'forthwith' has not a fixed and an absolute meaning, it 'must be construed with reference to the object of the particular provision of law and the circumstances of the case. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of..........13, rwd shiv karan had sold his land to santa singh, father of accused mahender singh and vichiter singh. udram had filed a pre-emption suit in respect of this land in the court of civil judge, hanumangarh. an application under section 145, cr. p.c. was also made by, udram, to the court of sub-divisional magistrate, hanumangarh on account of the litigation between the parties, the two accused bare enmity against, udram deceased. it is alleged that a few days prior to the occurrence mahendersingh had told udram that he would some day retaliate on october 23, 1971, at 2 p.m. mahender singh and vichiter singh came out of their 'dhani. they reached at killa nos. 7 and 8 marked in the site plane ex-p 11 udram at that time was ploughing his land mahander; singh was armed, with a 'gandasi' and.....
Judgment:

L.S. Mehta, J.

1. This appeal emerges from the judgment, dated April 17, 1972, of Mr. Devi Singh, Sessions Judge, 'Ganganagar, convicting accused Mahender Singh and Vichiter Singh of the offence under Section 304/34 I.P.C. and sentencing each of them to undergo rigorous imprisonment for five years.

2. Succinct facts of this case are that Shiv Karan and deceased Udram were brothers. They had a command and, situate at the outskirts of village Bhuranpura, in Chak No. 13, RWD Shiv Karan had sold his land to Santa Singh, father of accused Mahender Singh and Vichiter Singh. Udram had filed a pre-emption suit in respect of this land in the court of Civil Judge, Hanumangarh. An application under Section 145, Cr. P.C. was also made by, Udram, to the court of sub-Divisional Magistrate, Hanumangarh On account of the litigation between the parties, the two accused bare enmity against, Udram deceased. It is alleged that a few days prior to the occurrence Mahendersingh had told Udram that he would some day retaliate On October 23, 1971, at 2 p.m. Mahender Singh and Vichiter Singh came out of their 'Dhani. They reached at Killa Nos. 7 and 8 marked in the site plane Ex-P 11 Udram at that time was ploughing his land Mahander; Singh was armed, with a 'Gandasi' and Vichiter Singh with a lathi. Mahender Singh inflicted, a 'Gandasi' blow as a result thereof he fell down. Thereafter both Mahender Singh and Vichiter Singh inflicted several blows with the weapons with which they were equipped. The incident was alleged to have been seen by PW 4 Shri Ram and PW 5 Ram Jas from point No. 3 given in the site plan Ex-P. 11. Gome Khan and one Gopi, who was the owner of an adjacent, field, had also arrived there. On their challenge both the accused took to their heels. The witnesses found Udram unconscious and bleeding on account of multiple injuries. He was taken on a camel back to village Bauranpura and from there he was shifted to Rawatsar Hospital for treatment in a jeep-car. Because of his serious condition he was subsequently removed to Ganganagar Hospital Soon after Shri Ram went back to his village Bhuranpura. He then contacted Nand Ram, PW 3, Sarpanch Chahuwali and than bath Shri Ram and Nand Ram went to police station, Tibbi and lodged first information report Ex-P 1 at 2,10 a.m. on October 24, 1971. Nasir Ahmed, PW 10, incharge of the police station, Tibbi, registered a case under Sections 307 and 447, I.P.C. and took over investigation. Subsequently Udram died' in Ganganagar Hospital on October, 24, 1971, at 3.30 p.m. The police then altered the offence from Section 307, 302, I.P.C. Postmortem examination of the dead body of Udram was conducted by Dr. A.R. Das, PW 12, Medical Jurist, Ganganagar Hospital. He found the following injuries on the person of the deceased:

1. lacerated wound 2' x x bone deep on the back portion of the fronto-parietal region of head from left to mid-line;

2. lacerated wound suspected underlying fracture of scalp bone 1' x ' x bone deep on the back portion of the parietal region of the head;

3. bruise with swelling 3' x 1' on the upper surface of the left shoulder;

4. bruise with abrasion 4:' x 1:' x on the outer side of the left arm;

5. bruise 3' x :' on the outer side of the left forearm;

6. bruise with abrasion 3:' x 1' on the left scapular region;

7. bruise 5' x 1' on the back side of the left chest;

8. bruise 4' x 1:' x on the outer and the back side of the right arm;?

9. abrasion 2' x :' on the medial side of the right forearm;

10. bruise with abrasion 1' x 1' on the outer side of the right thigh;

11. abrasion 1.' x :' x on the front side of the left knee joint;

12. abrasion 1' x 1' on the lateral side of the left ankle joint.

In the opinion of the Doctor injury No. 2 was grievous and the rest of the injuries were simple in nature. All the injuries were caused with a blunt object. The head-injury causing shock & haemorrhage resulted in the death of Udram. That injury was sufficient in the ordinary course of nature to have resulted in his death. After necessary investigation the police put up a challan against the accuseds appellants in the court of Munsiff Magistrate, Hanumangarh. Learned Munsiff-Magistrate conducted preliminary inquiry and committed the accused to the court of Sessions Judge, Ganganagar, to face trial under Section 302, I.P.C. The accused were charged under the aforesaid section of the Indian Penal Code, to which they pleaded not guilty. In support of its case the prosecution examined 11 witnesses. The statement of the Medical Officer, Dr. A.R. Das, recorded by Munsiff-Magistrate. Hanumangarh, was brought on record in accordance with the provisions of Section 509, Cr. P.C. The accused in their statements, recorded under Section 342, Cr. P.C. denied the prosecution allegations. They did not produce any evidence in their defence. Eventually the trial court convicted and sentenced the accused as mentioned above.

3. Dissatisfied by the above verdict, accused Mahender Singh and Vichiter Singh have taken this appeal. The contentions of learned Counsel for the appellants are that the copy of the first information report Ex-P 1 was not sent to the court of Munsiff Magistrate, Hanumangarh, forthwith in accordance with the provisions of Section 157, Cr. P.C. His next contention is that the first information report has been filed with delay. The document was prepared in consultation with Sarpanch Nand Ram PW 3, and. therefore, no reliance can be placed on it. His another grievance is that prior to the occurrence both the civil suit and the proceedings under Section 145, Cr. P.C. had terminated in favour of the accused and against deceased Udram and, therefore, they had no grievance against the deceased. His last submission is that the two eye-witnesses Shri Ram, PW 4 and Ram Jas, PW 5 were in fact not present on the spot. They have given false evidence to implicate the accused. Learned Dy. Govt Advocate has supported the judgment of the court below.

4. I now take up the first point raised on behalf of the appellants. A pesusal of the first information report Ex-P 1 shows that it was received by the police station, Tibbi. On October 24, 1971, at 2.10 a.m. The Munsiff-Magistrate, Hanumangarh, ordered for its registration on October 26, 1971. Learned Deputy Government Advocate submits that from the statement of Nasir Ahmed, ASI (PW 10) it is apparent that a copy of Ex P 1 had been sent to the Munsiff-Magistrate, that very day. If the copy of the first information report had been sent to the Munsiff-Magistrate, Hanumangarh, on October 24, 1971, there is no reason why the Munsiff-Magistrate should make endorsement for its registration on October 26, 1971. October 24, 1971, was Sunday. October 25, 1971 was a working day. The first information report could have at the latest been sent to the Munsiff Magistrate on October 25, 1971, but that was not done. Section 157(1), Cr. P.C. reads:

If, from information received or otherwise, an officer-in-charge of a police station has reason to suspect the Commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribed in this behalf to proceed, to the spot, to investigate the facts and circumstances of he case, and, if necessary, to take measures for the discovery and arrest of the offender;

There are two reasons why the Legislature has provided in Section 157, Cr. P.C. that a copy of the first information report should be sent to the Magistrate forthwith. The first object of the report to be sent to the Magistrate concerned is to enable him to have an early information of a very serious crime so that he may be in a position to act, if necessary, under Section 159, Cr. P.C. See Hafiz Md. Sani v. Emperor AIR 1930 Pat 150. The second purpose of sending the report forthwith is not to allow the police to concoct false evidence and not to give the report a colourable picture, It is on account of these two reasons that the Legislature has specifically provided that the police officer, who has reasons to suspect the commission of an offence which he is empowered to investigate, should forthwith report the matter to the Magistrate and then he has to take over the investigation. Thus if is quite clear that in the case of cognizable offences there should be no time lag between the receipt of an information about the commission of an offence and the sending of the report to the Magistrate concerned vide Kochan Velayudhan v. State of Kerala : AIR1961Ker8 there is no reasonable or justifiable explanation as to when the report Ex P. 1 has been received by the police at 2.10. a.m. on October 24, 1971, why it had been sent to the Magistrate as late as October 26, 1971. Delay in sending a copy of the report to the Magistrate is likely to result in embellishment, which is the creature of an after-thought. On account of such delay the report not only gets bereft of spontaneity but danger also creeps in, in respect of the introduction of coloured version as a result of deliberation and conclusion.

5. Learned Deputy Government Advocate submits that in this case there has not been material delay, even if it is assumed that the same was received by the Magistrate on October 26, 1971. The Legislature in its wisdom has used the word 'forthwith' in Section 157, Cr. P.C. The word 'forthwith' has, been interpreted as far back as 1767 in England. Lord Hardwicke observed in Rex v. Francis 94 ER 1129 (at p. 1133A) that the word 'immediately' and the word 'forthwith' bear the same meaning. Lord Hardwicke further laid down:

The word is never understood either to exclude mesne acts or time, but only means, with convenient speed....

In the Queen v. The Justices of Berkshire (1879) 4 QBD 469 Cockburn C.J. has also made made the following observation in respect of the word 'forthwith' and 'immediately'. The learned Judge says:

It is impossible to lay down any hard and fast rules as to what is the meaning of the word 'immediately' in all cases The words 'forthwith' and 'immediately' have the same meaning They are stronger than the expression 'within a reasonable time,' and imply prompt, vigorous action, without any delay, and whether, there has been such action is a question of fact, having regard to the circumstances of the' particular case.

In Re Muscovitch (1939) I All. ER 135 Sir Wilfried Greene, M.R. says:

Word 'forthwith' which is peremptory and admits of no interval of time....

The matter also received the consideration of Chancery Division in the case of Re Muscovitch (1938) 4 All. ER 570. Farwell J. said:

The word 'forthwith' means that the copy of the notice shall be sent immediately upon the appeal being entered, or at any rate within a very short time.

The word 'forthwith' was also interpreted by their Lordships of the Supreme Court in K.N. Joglekar v. Commissioner of Police : 1957CriLJ10 . In that case his Lordship Venkatarama Ayyar J. speaking for the Court, explained the position thus:

On these authorities, it may be taken, an act which is to be done forthwith must be held to have been so done, when it is done with all reasonable despatch and without avoidable delay.

In this case the above delay ha; not been explained. It is true that though the word 'forthwith' has not a fixed and an absolute meaning, it must be construed with reference to the object of the particular provision of law and the circumstances of the case. There is no material on the record to show as to why the copy of the first information report was not sent to the Magistrate promptly, or with reasonable diligence and expedition. The delay in the matter stands unexplained. There is, therefore, scope for doubt about the genuineness of the first information report.

6. As for the second point raised on behalf of the appellants, the occurrence is alleged to have taken place at about 2 p.m. on October 23, 1971. The distance between Bhuranpura and the police station, Tibbi, is 20 miles. It is in the evidence of P.W. 3 Nand Ram, Sarpanch, that a jeep-car was available in village Bhuranpura and the same was subsequently used for going to the police station. The first information report was filed at the police station at 2.10 a.m. on October 24, 1971. Learned Counsel for the appellants submits that Shri Ram set out from Bhuranpura village for lodging the first information report at about 11 p.m. on October 23, 1971. Up to 11 in the night he was busy in consultation and deliberation as to which accused persons should be involved in the case. This delay has not been explained by the prosecution and, therefore, the prosecution story should be held to be unreliable. It is in the evidence or shri Ram. P.W. 4, that he first met Udram in village Bhuranpura. He reached the village at 4.30 p.m. He started for Rawatsar in a jeep-car, which as at a distance of about 18 miles. He returned to his village at 8 in the night. He contacted Nand Ram at 9 in the right and then he left his village at 11 in the night for filing the first information report. This part of the evidence of Shri Ram is falsified by the statement of Sarpanch Nand Ram. P.W 3, who has deposed that on the date of the incident he was in village Bhuranpura where Shri Ram met him at about 3 or 4 p.m. At 11 in the night both he and Shri Ram left in a jeep-car for police station, Tibbi and they reached the police station at about 1.30 or 2. a.m. The reason for not starting from Bhuranpura Village to the police station from 3. or 4. p.m. to 11 p. m remains unexplained. On the other hand, from the circumstances of and the evidence in the cases of it is clear that. Shri Ram spent about to 7 to 8 hours in village Bhuranpura in deliberations and consultations as to how the first information report should be prepared. First information report in a criminal case is a vital and valuable piece of evidence for the purpose of corroborating oral evidence adduced at the trial. Its importance can hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the first information report at the police station in respect of the commission of the crime is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eye-witnesses present at the scene of the incident. If the first information report it filed with delay, there is the danger of the introduction of coloured version, exaggerated account or concocted story as a result of consultation or deliberation. See Thulia Kali v. The State of Tamil Nadu 1972 SCC (Cr) 543. In the instant case Shri Ram stayed in village Bhuranpura for about 8 hours and during this period he consulted Sarpanch Nand Ram, PW 3. This circumstance would raise considerable doubt regarding the veracity of the case and it is not safe to base conviction upon such dubious character of the first information report.

7. Next I pass on to the motive for the crime. It is in the evidence of Shri Deoki Nandan, P.W. 1, Clerk in the Court of Sub-Divisional Magistrate, Hanumangarh, that the petition of Udram under Section 145, Cr. P.C. was decided on August 24, 1971, by order Ex. P. 7. A preemption suit was brought by Udram against the widow of the father of the accused Sarjeet Kaur and others and that suit was dismissed on May 21, 1971, by the court of Civil Judge, Hanumangarh. The occurrence took place much latter i.e. on October 23, 1971. When the accused party had already won both the cases, it was Udram who should have naturally felt aggrieved against them and not Mahender Singh and Vichiter Singh. In the circumstances, it cannot be said that the prosecution has brought home the motive for the crime against the accused.

8. I now switch over to the appraisement of the eye-witnesses' evidence. Shri Ram, P.W. 4 and Nanda Ram, P.W. 3(Sarpanch) state that the place of the occurrence is at a distance of 400 to 500 'Paundas' from the canal. Similarly the 'Dhani' of the accused was at a distance of 500 'Paundas' from the scene of the incident. That means that the witnesses saw the accused from a distance of 2000 to 2500 ft. and they saw the accused coming out of their 'Dhani' from a distance of about 5000 ft. PW. 4 Shri Ram says that the distance between the canal and the scene of the occurrence is about 4 or 5 Killas. He is not certain whether the distance was 8 or 9 Killas. Distance of 5 Killas in equivalent to 825 ft. Dr. Hans Gross in his treatise 'Criminal Investigation', Fifth Edition, writes at page 159:

Presuming the eyesight to be normal and the light good, one is able in broad daylight to recognise:

(a) persons whom one knows very well, at a distance of from fifty to ninety yards; when there are particular and very characteristic signs, 110 yards; in exceptional cases upto 165 yards.

(b) Persons one does not know very well and has not often seen, from twenty-eight to thirty three yards.

(c) People one has only seen once, sixteen yards.

Taking the case to its extreme extent a person with normal eye-sight can recognise another person upto a distance of 495 ft. Presuming that Shri Ram's statement is correct, yet it was not possible for him to have seen the accused persons from a distance of more than 500 ft though according to Nand Ram Sarpanch, PW 3, the distance was about 2500 ft. Shri Ram has stated before the trial court that Mahender Singh give 4 or 5 'Gandasi' blows on Udram's had but according to the medical evidence, Udram sustained only two injuries on the head with a blunt object Again, Shri Ram told the court that he had first seen Mahender Singh causing 'Gandasi' blow to Udram and that Vichiter Singh inflicted lathi blows thereafter. In the police statement ExD.l, at portion marked A to B the witness had deposed that it was Vichiter Singh who inflicted below to Udram first. When the witness was confronted with this discrepancy, his convenient answer was that he had not given such a statement before the police. Again, Shri Ram has deposed that he did not see Mahender Singh causing injuries to Udram when he was standing on the feet, but in the cross-examination the witness took a different position. There he said that when Udram was ploughing his land, Manender Singh gave 'Gandasi' blows to him. The witness then says whether at the time when Vichiter Singh gave blows to Udram he was lying or standing, he could not say. Shri Ram states before the trial court that Vichiter Singh gave 5 or 7 lathi blows to Udaram, but in the committing Court's statement Ex D. 4 at portion marked E to E he had stated that Vichiter Singh gave 10 to 15 blows to Udram. When the witness was confronted with this inconsistency, his answer as that the statement in the committing court was correct. There is another glaring inconsistency in the statement of Shri Ram, recorded under Section 164, Cr. P.C. In that statement he had deposed that Mahender Singh had given lathi blows to Udram on his head As against this in the trial court he has deposed that Mahender Singh gave 'Gandasi' blow to him When the witness was interrogated in respect of this inconsistency, his answer was that his statement under S.l64, Cr. P.C. was wrong.

9. Keeping in view the above improbabilities and inconsistencies as also the distance between the canal where the witness was standing and the scene of the occurrence, I am firmly of the opinion that Shri Ram was not an eyewitness. At the most he was a way fairer. As his been observed by their Lordships of the Supreme Court in Mohan Lal v. Delhi Administration 1969 UJ (SC) 690, criminal courts are familiar with way fairer witnesses and their evidence is generally viewed with suspicion. It should be more so if the witness happens to be an enemy of the accused.

10. I row take up the evidence of Ram Jas, P.W. 5 If Shri Ram's presence at the scene of the occurrence is disproved, the testimony of this witness hardly survives. The story of Shri Ram and Ram Jas is common. Both of them have said that they saw the occurrence from the canal. Ram Jas says that he saw the occurrence from a distance of 150 to 160 'Paundas', which are equivalent to 750 to 800 ft. As has already been discussed above on the basis of authority of Dr. Hans Gross, it was not possible for the witness to have discerned the occurrence from such a long distance. Learned Deputy Government Advocate has referred to a recent decision of their Lordships of the Supreme Court in Janak Singh v. State of U.P : 1972CriLJ1177 . In that case it has been laid down that where eye witnesses gave varying distance from which the accused fired towards the victim, such witness can hardly be expected to make precise distance and that estimated distance is bound to vary and nothing turns on his such variation. In Janak Singh's case, the distance ranged from 2 to 6 paces. It was observed that at the shooting time it was not possible for the witnesses to make correct and precise assessment of the distance. In the present case the distance related to a fixed point as to at what distance the canal is situate from the place where the occurrence took place or at what distance the 'Dhani' of the accused stood from the canal. Therefore, the Supreme Court case (supra) is not of much assistance to the prosecution. The witness was examined by the police on November 5, 1971, i.e. after about 13 days of the occurrence. The Investigating Officer Nisar Ahmed, P.W 10, has stated that he did not record the statement of Ram Jas on the day he had gone to the spot of the occurrence. His statement was recorded on November 5, 1971. Ram Jas, P.W. 5. states that he returned to his village during the night of October 24, 1971. He further says that he does not remember when his statement was recorded by the police. There is thus no reasonable explanation as to why Ram Jas was not examined by the police between October 25 and November 4, 1971, particularly when the witness was available in the village. As has been observed by their Lordships of the Supreme Court in Bala Krishna v. State of Orissa : 1971CriLJ670 , unjustified and unexplained long delay on the part of the investigating officer in recording the statement of material eye-witness during investigation will render the evidence of such witness unreliable. The testimony of Ram Jas, for the reasons stated above hardly inspires any confidence. It appears that he was not an eye-witness of the occurrence. There is no other evidence on the record to connect the accused with the crime.

11. In the result, I accept this appeal, acquit accused Mahender Singh and Vichiter Singh of the offence under Section 304, Part II. I.P.C. They are in jail and shall be released forthwith, if not required in any other case. Learned Deputy Government Advocate prays for leave to appeal to the Supreme Court. I do not think that this is a fit case for the grant of such a leave. The prayer is rejected.


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