Anoop Kumar vs State Of Delhi
2011 Latest Caselaw 1585 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        RESERVED ON: 23.02.2011
                                        PRONOUNCED ON: 21.03.2011

+                CRIMINAL APPEAL NOS.296/1997, 477/1997, 38/1998 & 99/1998

CRL. APPEAL NO.296/1997

RAJINDER

CRL. APPEAL NO.477/1997

RAJ PAL

CRL. APPEAL NO.38/1998

RAVI PRAKASH TIWARI @ PANDIT @ PAPPU

CRL. APPEAL NO.99/1998

ANOOP KUMAR                                                                       ...Appellants
                                   Through: Mr. Manu Sharma, Advocate in Crl. A. No.296/1997.
                                   Mr. A.J. Bhambani with Ms. Nisha Bhambani,
                                   Mr. Victor Ahanthem and Ms. Lakshita Sethi, Advocates
                                   in Crl. A. Nos.477/1997, 38/1998 & 99/1998.

                          versus

STATE OF DELHI                                                                    .... Respondent

Through: Mr. Jaideep Malik, APP for the State in all the matters.

CORAM:

MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE G.P. MITTAL

1.      Whether the Reporters of local papers           YES
        may be allowed to see the judgment?

2.      To be referred to Reporter or not?              YES

3.      Whether the judgment should be                  YES
        reported in the Digest?

        MR. JUSTICE S.RAVINDRA BHAT

% 1. This judgment will dispose of Crl. Appeal Nos. 296/1997, 477/1997, 38/1998

and 98/1998. They are directed against a common judgment and order of the Additional

Sessions Judge, Delhi, dated 20.05.1997, in SC No. 61/1996.

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 1

2. The prosecution case, in brief was that on 05.09.94, around 3:00 PM, the Appellant Rajender along with the Appellant Pappu @ Pandit, were urinating in Trilok Puri, near 19/350, under the influence of liquor. It was alleged that PW-2 Chander Mohan was passing by, and asked them not to do so. At this, the two of them, i.e. Rajender and Pappu, caught hold of PW-2; upon hearing the commotion, Vijay (hereafter, "the deceased") and others from the locality (mohalla) reached the spot, and pacified the attackers; upon this, Rajender, while leaving the spot, threatened Vijay and his brother (Bal Kishan, hereafter called "PW- 1") that they would be killed. The accused Rajender, under the influence of liquor, apparently had received injuries at that time. It was alleged that on 07.09.94, at about 1:00 PM in the afternoon, when Vijay was drinking water from a tap located opposite his house, and PW-1 as well as PW-2 were sitting outside on the floor, at their doorstep, the appellants reached there. It is alleged that the appellant Pappu asked the others to kill Vijay, pointing him out to them. Raj Pal caught hold of Vijay by both his hands, from behind him; Rajender, armed with a knife, and Anoop, with a sword, stabbed Vijay repeatedly; he started to bleed profusely. Thereupon, PW-1 and PW-3 raised an alarm; the appellant Anoop pointed his sword at them, and threatened that anyone approaching them would be killed. All four appellants ran away from the spot. PW-1 and PW-2 took Vijay, in a TSR to JPN Hospital, where he was declared brought dead. It is alleged that the police received intimation, by telephone, and a DD entry (Ex. PW-16/A) was made. ASI Vijay Pal proceeded to the hospital, where he collected the MLC of the deceased (Ex. PW-3/A). PW-16 recorded the statement of PW-1; the case was forwarded for registration of FIR, through endorsement, Ex. PW-16/B. Photographs of the spot were taken and investigation commenced.

3. It was alleged that on the same day, at about 10:00 PM, upon receipt of secret information, the appellants were arrested, near No. 13 Block bus stand of Trilok Puri. It was alleged that the search of appellant Rajender led to recovery of a 12.1" churra with an 8" long blade. Appellant Anoop Kumar disclosed that he had thrown away the sword, behind the wall near the bus stand. He led the police party to a wall in Block 13 which led to the discovery of the sword, which was behind a wall. Inquest proceedings were held, and recorded as Ex. PW- 16/D. Brief facts Ex. PW-16/E were recorded and forwarded with a request for holding post mortem of the body. The post mortem report was received, as also the CFSL report. The police filed the charge sheet in court, which led to the appellants being charged with committing the offences punishable under Sections 302/34 IPC. Charges under sections 27/54/59 of the Arms Act, were framed against the appellants, Anoop Kumar and Rajender

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 2 Kumar. The prosecution relied on the testimony of sixteen witnesses; the main witnesses who deposed in the case, and whose testimonies were relied on by the Trial Court, to record the findings of guilt, were PWs 1 and 2, PW-11, the doctor and PW-16, Inspector Ashok Kumar.

4. The Trial Court held that the prosecution had proved the allegations against the appellants. It held that the prompt recording of the FIR, and the follow up investigation, within an hour, after the incident, ruled out any scope for manipulation or improvement. It was held that the testimonies of PW-1 and PW-2 were credible, and trustworthy for the court to hold the appellants guilty of the offences they were charged with. It was concluded that both PW-1 and PW-2 had witnessed the incident, and given an accurate and faithful narrative, which did not leave any doubt about the identity, events or sequence of the attack, and role of each accused. It was held that the medical evidence, in the form of the post mortem report, and the testimony of PW-11, the doctor, corroborated the eyewitness‟s testimony. The court also believed the recovery of the weapons of offence, as alleged by the prosecution, and ruled that the accused/appellants made no attempt to explain their conduct, when opportunity was given to them; they also did not choose to lead any defence evidence.

5. Mr. A.J. Bhambani, learned amicus curie appointed by the court to appear on behalf of the appellants Rajpal, Pappu and Anoop Kumar, submitted that the findings (of guilt) recorded by the Trial Court are unsustainable, and contrary to the probabilities discernable on a fair reading of the evidence available in this regard. It was submitted that the entire story about the previous incident, of 05.09.94, when the accused Rajender is alleged to have got angry at the intervention of Vijay, and the subsequent attack, alleged to have been launched by them, is utterly unbelievable. It was submitted that the prosecution could not produce a single independent witness who was present on the previous day, even though its version was that several people from the vicinity intervened and quelled the fight, between Rajender and Chander Mohan. It was submitted, in this context that the previous incident was far too trivial to act as a motivation for such a serious attack upon the deceased. In any event, the role of the deceased by all accounts was only that of someone who intervened to save his father, PW-2. If such was the correct position, there ought to have been no reason at all for any of the accused to take exception and be motivated to avenge such a trivial fight. Even if it were assumed that some incident did take place on 05.09.94, the role of only two accused in that was alleged; in any case the altercation or quarrel if at all, was with the father, PW-2. If in fact the prosecution were to be believed on that aspect, the murderous attack ought to have been launched against him and not against the deceased. Therefore, argued learned counsel

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 3 that the so-called motive was not only suspect but entirely not believable. It was next argued that the prosecution witnesses PW-1 and PW-2 deposed that all the four appellants had suddenly emerged and attacked an unwary Vijay, when he was drinking water from a public tap. If the allegations with regard to the previous incident of 05.09.94 were to be believed, that incident occurred at 03:00 PM in the afternoon. According to the prosecution, on that day, the altercation between Rajender and PW-2 was stopped at the intervention of the deceased and other members of the public. It was pointed out that the place where the alleged attack took place on 07.09.94, was a public one and in fact a thoroughfare, surrounded by residential buildings and blocks. Even in the afternoon, there were members of the public available at hand, on 05-09-1994, to stop the aggravation of a verbal altercation. Yet, on the fateful day, according to the testimonies of PW-1 and PW-2, no such member of the public was available at a much earlier hour of the day, i.e. 01:00 PM, just around lunchtime. This is all the more incredible, since the two witnesses had deposed that the spot where the incident occurred was surrounded by residences and jhuggis. This prosecution story was utterly unbelievable. However the Trial Court not only believed such an improbable version but proceeded to convict the appellants on the basis of such an inherently unbelievable story.

6. Mr. Bhambani contended that the version of PW-1 and PW-2 cannot also be relied upon for the simple reason that they deposed to having witnessed the entire episode, but not to having taken any steps to save the deceased Vijay, who is alleged to have been inflicted with no less than 13 stab injuries inflicted with a knife and a sword. It is submitted that the recovery of the sword, from a public place, as alleged by the prosecution is unbelievable, and that in any case, the prosecution has not relied on any disclosure statement, made by the appellant Anoop. In the absence of any such statement, the Memo through which the knife was merely "pointed out" as alleged by the prosecution, is inadmissible, on a reading of Section 27 of the Evidence Act, 1872.

7. It was urged that the presence of PW-2 at the scene at that time, is suspect. Both PW- 1 and PW-2 had deposed that the latter used to vend vegetables, in a Thiya, about 8-10 minutes‟ walk away from the scene of occurrence. Such being the case, the probability of PW-2 having been an eye-witness was remote. Further, submitted the amicus, PW-1 had deposed about intimating a police post (PP) which was at a very short distance away from the spot, when allegedly taking the deceased to the hospital. However, this was contradicted by PW-5, who mentioned that the said witnesses did not go there, on their way to the hospital. The credibility of PW-2 was also doubted, because he mentioned having been in the hospital,

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 4 on the date of the incident, till 12:00 midnight; yet PW-16, the IO clearly deposed that he (PW-2) and PW-1 had gone back from the hospital at 3:30.

8. The learned counsel urged that even though PW-5 deposed that news of the incident was received and a DD was prepared at 12:55 PM, immediately after which the police party left for the hospital, the police made no effort to register the FIR; it was in fact recorded much later, i.e. three hours after the alleged time of occurrence, at 4:00 PM. This, taken with the circumstance that the IO deposed not having recorded the statement of any witnesses, in the hospital, contrary to the depositions of PW-1 and PW-2 (who testified that their statements were taken down in the hospital), falsified the prosecution case. Therefore, urged the learned amicus, the findings recorded by the Trial Court are liable to be set aside.

9. Mr. Bhambani also argued that both PW-1 and PW-2 claimed to know the appellants; PW-2 mentioned that he recognized and could identify all of them; however, PW-1 stated that he knew the identity of three of them (ie. all except Rajender, whom he recognized by face). Yet, neither the MLC, nor the DD entry which are the first police records in the case, reveal the names of any of the alleged accused. These, coupled with the late recording of FIR, casts serious doubts about the veracity of the prosecution story. Similarly, PW-2‟s credibility is further shaken, because he deposed having stayed on in the hospital till 12:00 midnight, on 07.09.94; however, PW-1 as well as PW-16 the IO, stated that the two witnesses had left the hospital. Also, PW-1 mentioned that a police post was located on the way to the hospital; this was also spoken about by PW-2. According to PW-1, before reaching the hospital, the police were intimated, at that PP; yet PW-5 confirmed that no such intimation was received, and that information about the attack was received differently.

10. It was submitted that the alleged arrest of the four appellants from near a bus stand, and the recovery of the sword, with which Anoop Kumar allegedly assaulted the deceased, have not been proved. In this context, learned counsel argued that PW-5 deposed that secret information was received regarding whereabouts of the appellants, and the prosecution alleged that they were arrested at 10:00 PM that night. Yet, the same witness admitted that the so called informer was not even present at the spot of arrest, thus falsifying the version. Similarly, the sword was admittedly recovered from a public place, i.e. a park. This was around midnight. Besides the sheer improbability of such alleged recovery, there is in fact no disclosure statement, produced on the record, which connects any Appellant to the weapon. It is argued by learned amicus that besides the testimony of the two witnesses, who were

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 5 interested, there is no material to connect the Appellant Anoop Singh, with the crime. No motive can be attributed to him, since he was not present at the scene at the time of the previous incident, on 05.09.94. Concededly the prosecution story was that on that (the previous) day Rajender and Pappu were involved in the altercation. It was urged, that significantly, the prosecution was unable to establish that Anoop had in fact used the sword; there was no objective corroboration through fingerprint examination, etc. It was also argued that the prosecution case is utterly implausible, about the discovery of the sword, or that it was the weapon of offence, since the CFSL report Ex. PW-16/H clearly mentioned that the blood found on the sword, (marked as Parcel III; Bio-C) was not of human origin. The blood samples found on the articles seized, matched with the deceased‟s blood group (A) only in respect of his undergarments, and the trouser as well as the belt he (the deceased) was wearing (Parcel 1, Bio A-1 and Bio A-2). Thus, the whole theory of an attack by Anoop, and the other accused, with deadly weapons, including a sword, which is said to have caused the fatal injury, was unbelievable. These pointed to a tainted prosecution.

11. The learned amicus argued that the prosecution unfairly did not produce a material witness, i.e. the individual who allegedly accompanied PW-1 and PW-2 in a TSR to the hospital, when they went along with the deceased. According to their depositions, that stranger was unknown to them; yet he helped them in removing Vijay, accompanied them to the hospital and even paid the TSR fare. His testimony would have shed light to the surrounding circumstances; yet no effort was made to trace or summon him. Similarly, urged the amicus, PW-5‟s evidence showed that finger print experts had visited the scene of occurrence; yet their report was not produced, or made available.

12. The learned amicus submitted that all the facts pointed to the prosecution fabricating the story and implicating the accused. Both PW-1 and PW-2 deposed that they were well aware of Anoop, Rajpal and Pappu. Anoop, in his statement under Section 313, Cr. PC stated that he was not present, and had been pulled out from his house. He also alleged false implication, since Pappu and Rajender were known to him. Similarly, it was submitted that in his response, Rajpal too alleged that PW-1 and PW-2 harboured a grudge against him, since he was acquainted with Rajender and Pappu. These statements, it was urged, received corroboration from the depositions of PW-1 and PW-2, who stated their prior knowledge of the four accused.

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 6

13. The learned amicus lastly argued, in the alternative that assuming without admitting that an attack did take place, there was hardly any motive for it, and the circumstances as well as the facts proved, did not show any pre-meditation of any Appellant. He relied on the decision reported as Ramashish Yadav v. State of Bihar, (1999) 8 SCC 555, where the Supreme Court observed as follows:

"According to the prosecution case these accused persons were ploughing the land claiming the land to be theirs on the date of occurrence and some of the accused persons had a gun while some others had weapons like gandasa and lathis. When the informant and some others belonging to his party went and protested as to why they were ploughing the land belonging to the informant the accused persons asserted that it was their land and, therefore, they would continue to plough the land in question. On this score there was some altercation and then accused Ram Das Yadav brought out the gun and fired which hit Mundrika and Mundrika died at the spot. Two other accused persons, namely, Ram Pravesh Yadav and Ramanand Yadav suddenly came and caught hold of Tapeshwar Yadav belonging to the complainant party and at that point of time Samundar Yadav and Sheo Layak Yadav came with gandasa in their hands and gave blows on the head of Tapeshwar by means of gandasa. The informant was caught hold of by Ramanand Yadav, Sukhdeo Yadav, Sheo Layak Yadav and Ram Ishwar Yadav who has already died, gave a lathi-blow on the wrist and Ramanand Yadav gave a chhura-blow.

........ ...................................

Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre- arrangement or premeditated concert. This being the requirement of law for applicability of Section 34 IPC, from the mere fact that accused Ram Pravesh Yadav and Ramanand Yadav came and caught hold of Tapeshwar, whereafter Samundar Yadav and Sheo Layak Yadav came with gandasa in their hands and gave blows by means of gandasa, it cannot be said that the accused Ram Pravesh Yadav and Ramanand Yadav shared the common intention with accused Samundar Yadav and Sheo Layak Yadav."

14. Mr. Manu Sharma, counsel appearing on behalf of the Appellant Rajender, argued that the recovery of churri is utterly unbelievable. He pointed out that the recovery from Rajender was in the most improbable circumstances. According to the prosecution version, PW-1/C was the personal search memo of Rajender; it clearly stated that nothing was found, upon his search. Yet, by PW-1/H, the churri was recovered from him. To compound this further, the weapon was 12.1‟ long with an 8‟ long blade and 4.1‟ handle; it was supposed to be recovered from the said Appellant, after 10:00 PM, i.e. over 9 hours after the alleged incident. It was submitted that the sheer improbability of such a recovery, has to be only mentioned, to emphasize that the story was false. It was also argued that the CFSL report PW-16/H, in the case of the churri, clearly pointed to blood being found on it; yet, the tests

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 7 drew a negative; that was not human blood. If this circumstance were to be seen together with the alleged recovery - from Rajender‟s person, implying that he was carrying the knife all along, there ought to have been traces of the deceased‟s blood. However, it contained traces of blood, which were not even of human origin. Mr. Sharma argued that the post mortem report suggested that the weapon which caused the fatal injury, No. 13, could only have been caused by the Talwar (i.e. the sword). Also, the post mortem report stated that six injuries were caused by a blunt weapon. The prosecution story did not admit of use of any blunt weapon, since both eyewitnesses talked about attack with a knife, and a sword. Taken together cumulatively, all these painted a false case foisted upon the Appellant Rajender.

15. It was submitted that despite PW-1 and PW-2 allegedly knowing all the appellants, they were not named in the MLC, or in the DD. Their names were mentioned in the FIR for the first time, at 4:00 PM, which is over three hours after the incident. Learned counsel relied on two Supreme Court rulings, reported as Thanedar Singh v. State of M.P.,(2002) 1 SCC 487, and Meharaj Singh v. State of U.P.1994 (5) SCC 188, for the purpose of submitting that having regard to the alleged knowledge about the identity of the assailants, omission of their names in the earliest documents, i.e. MLC and the first DD entry - both of them a part of the record, and these documents falsifying PW-1‟s evidence about having disclosed the names to the doctor attending when the MLC was prepared, deals a fatal blow to the genuineness of the prosecution story. It was submitted that these two judgments clarify that depending on the circumstances, on account of delay; an FIR gets bereft of the advantage of spontaneity, and runs the danger of the introduction of a coloured version or exaggerated story.

16. Mr. Sharma argued that in the present case, the false nature of the prosecution version is further underlined by several important circumstances. First, the request for postmortem was made on 08.09.94, i.e. a day after the incident. Second, the inquest form in this case (PW-16/D) does not even mention the FIR number. Third, the material witnesses PW-1 and PW-2 were available in the hospital; their statements were recorded on 07.09.94, according to PW-1, PW-2 and PW-5. The MLC and the dead body were also available. Yet, the IO, PW- 16 did not hold the inquest, inexplicably, and chose to do so a day later. Learned counsel relied on Banwari v State of Rajasthan 1976 CrLJ 161 in support of the submission that the inquest report is of vital importance and has to be prepared immediately since it has to be sent to the doctor, along with request for postmortem examination of the dead body. An unexplained delay in this regard would have fatal consequences on the prosecution version.

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 8

17. It was argued on behalf of Rajender that in the present case, the prosecution has not even established that the FIR was sent to the concerned magistrate, let alone sent there within reasonable time of recording it. It was highlighted that the prosecution is under an obligation, by reason of Section 157 of the Code of Criminal Procedure to forward the special report, about the occurrence of a death due to suspected offence, with utmost dispatch. Relying on Mehraj Singh (supra) learned counsel urged that failure to send the report, or delaying the report can persuade the court to conclude that the FIR contains a thought out, padded case, falsely implicating the accused.

18. Learned counsel lastly relied on Ramesh Kumar v. Delhi Administration 1990 Crl. LJ 255 to emphasize the adverse effect on the prosecution case, due to the non-forwarding, of the FIR to the Magistrate and the absence of identification of the assailants in the MLC. He relied on Mahabir Singh v. State 1979 Crl. LJ 1159, for the proposition that non-compliance of Sections 154 and 157 Cr. PC, is a factor to be considered seriously while appreciating the entire evidence. If the dead body is sent within reasonable time for the post mortem, the court can conclude about the veracity of FIR; an unreasonable delay casts a doubt about the time, and the contents.

19. The learned APP submitted that the Trial Court correctly convicted the appellants under Section 302 IPC. It was argued that the previous incident of 05.09.94 was not denied by Rajender or Pappu. It was argued that in fact, the line of questioning adopted on behalf of some of the appellants, and the answers given by them, under the statements recorded pursuant to questions put under Sections 313, Cr. PC, showed that they did not deny the altercation, and instead, their case was that the matter ended that day itself. In such a situation, it cannot be argued now that the previous incident had not been established, or that there was insufficient motive. The learned APP argued that motive in such cases, where the prosecution relies on ocular evidence, pales into insignificance.

20. The prosecution next argued that the absence of the assailants‟ names in the MLC and the DD does not vitiate or undermine the prosecution version, because the concerned witness, PW-1 did say that he had named the appellants to the doctor, though the latter did not mention it in the MLC. No attempt was made to contradict the witness, or confront him, with the MLC, as is normally done in such cases.

21. It was argued that minor details such as the distance from where the two eyewitnesses observed the incident, or particulars cannot be highlighted, to argue about so-called

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 9 contradictions. The learned APP submitted, in this context, that the two eyewitnesses had no reason to falsely implicate the appellants, as argued by them. They clearly mentioned the role of each of them. A mere unsubstantiated allegation of the appellants‟ previous grudge, vaguely leveled, without any particulars, was not enough to shake the otherwise sound and credible eye-witness testimony of the two witnesses, PW-1 and PW-2. The learned APP argued that in all particulars, each of the said witnesses corroborated the other.

22. It was argued that merely because the father (PW-2) and brother (PW-1) of the deceased did not try to save him, one cannot conclude they were not present in the scene of offence. Every individual has a different way of reacting to particular situations. It was emphasized that the testimony of the two eyewitnesses also established that the appellants had threatened to kill anyone who tried to save Vijay. Under these circumstances, it was reasonable for any one, including the unarmed relatives of someone being attacked, to be cautious while taking any step towards aiding the victim.

23. It was submitted that the mere circumstance that some witness was related to the injured, or the deceased, would be insufficient to conclude that his or her testimony cannot be relied on, or is unsafe. Likewise, the soundness of the prosecution case cannot be judged merely on the ground that there are no independent witnesses to substantiate its claims. As long as the witness is truthful and credible, courts can rely on their depositions. In this case, the said two witnesses also deposed about the recovery, and were not cross examined with the relevant suggestions, or confronted with any contradictions. There is no reason to disbelieve them. It was also submitted that the appellants can no longer question the recovery of the articles, made by the police, because at the relevant time, the concerned witnesses who deposed about the recovery were not even cross examined.

24. It was argued by the APP that mere non-seizure of clothes of the witnesses cannot be fatal to the prosecution case. There is no reason to doubt that bleeding of the deceased, as testified by the eyewitnesses, took place. The witnesses were in fact cross examined unsuccessfully, on this aspect. Therefore, the authorities relied on by the appellants, are irrelevant. Likewise, submitted the APP, the IO was not asked why the blood soaked clothes of witnesses were not seized.

25. It was submitted that there was in fact no delay in recording the FIR in the present case. The attack took place, and the deceased was taken to the hospital at 1:00 PM; the police reached soon thereafter, and it naturally took some time, for them to record the statements.

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 10 PW-16 and the eyewitnesses PW-1 and PW-2 had deposed that statements were recorded around 3:30 PM. In the circumstances, the formal recording of the FIR took place within reasonable time of the incident itself. Having regard to all these facts, submitted the APP, this court should not interfere with the findings and judgment of the Trial Court.

26. As may be seen from the above narration, the incident in this case took place on 07.09.94, at about 1:00 PM. The prosecution alleged that the Appellant Pappu and the Appellant Rajender had previously, on 05.09.94, an altercation with PW-2. The deceased Vijay allegedly intervened, which was resented by Rajender, and Pappu. They held out a threat against Vijay, and left. That day several people were present at the spot, and had also intervened to stop the quarrel. On 07.09.94, the day of the incident, at the relevant time, the four appellants attacked Vijay, who was drinking water from a public tap. Rajender wielded the knife; Anoop Kumar attacked with a sword, Pappu exhorted the others also to attack. Rajpal held and detained the deceased, while others were beating or stabbing him. After attacking the deceased, the accused fled the spot. The deceased‟s father and brother took him to the hospital; he was declared brought dead. The police, in the meanwhile reached the spot, and started the investigations. To arrive at the findings of guilt, the Trial Court primarily relied on the evidence of PW-1, PW-2, PW-5 and PW-16.

27. In his deposition, PW-1, the deceased‟s brother deposed about the previous incident, of 05.09.94, and stated that Rajender too had suffered some injuries at that time. He (Rajender) while leaving the place threatened PW-1 and the deceased not to spare them. He deposed that his brother, Vijay was drinking water from the tap opposite to their house (on 7th September 1994). He (PW-1) and his father were sitting outside the door on the floor. At that time the four accused present in the court came there. He knew all them since earlier. The accused Pappu asked others to kill Vijay, pointing towards him. He also stated that Rajpal caught hold of Vijay with his two hands from behind, Rajender, with a knife and Anoop with a talwar, stabbed Vijay repeatedly resulting in serious injuries to him. The witness and his father raised an alarm. Anoop, showing the Talwar, warned that if anyone would come forward, he would be killed. PW-1 further deposed that he and PW-2 took Vijay to JPN hospital and got him admitted there; he was declared brought dead. He deposed that the police arrested all four accused persons (identified by him in the court) in his presence, at about 10 PM and effected their personal searches; the Accused were arrested from the bus stand. Rajender had a knife which was seized by I.O. The appellants then led the witnesses to

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 11 the spot and a Talwar was recovered from behind the wall near the Block 13, bus stand at the instance of Anoop, at 12:00 midnight.

28. In cross examination, PW-1 deposed that there were houses on both sides of his house, and about 8-10 Jhuggies near the big parking in front of his house, and about 10-12 houses in the street where his house is situated. The house is situated in the middle of these houses. People used to pass through the street. In cross examination, he stated that the „Theia‟ of his father was at a distance of about 8 -10 minutes‟ walk from their house. He admitted that people with families lived in all the houses near his house and were also living during the day of occurrence. None had gathered at the time of occurrence. He deposed having accompanied the deceased, to the PP for a few minutes. The police who met him there asked him take his brother to the hospital. He did not tell the police man the name of the culprit and the manner of occurrence. PW-1 stated having taken the injured in TSR. They hired the TSR after about ½ minute of the occurrence. They reached the hospital by 1:30 PM. His clothes and those of PW2 had blood stains of deceased Vijay. PW-1 and PW2 did not pay the TSR fare to the TSR driver, it must have been paid by the third man who had gone with them but the witness did not remember his name. That man never demanded back the hire charges from PWs-1 and 2. The witness claims to have named the culprits to the doctor, and also told about the knife and talwar and the spot of occurrence. The Police had recorded his statement in the hospital at about 3 PM. The police had recorded PW-2‟s statement too, in the hospital after his statement. He elaborated on the arrest of the appellants, stating that the four appellants were arrested on receipt of secret information while he and other witnesses were standing at block 25, near Nirankari Bhawan. He says that the informer had told the police that the four culprits were standing near block No.13; but the informer did not accompany them to the block No.13. He claimed to know three accused Anoop, Rajpal, and Pappu for a long time prior to the occurrence (of the incident). He claimed having seen the forth accused one or two times prior to the occurrence but did not know him by name. The witness deposed that about 50-100 persons had gathered at the previous occasion (5th September 1994). He denied the suggestion that till the admission of the deceased in the hospital they (PW-1 and PW-2) did not know the name of the accused.

29. PW-2 stated that the police met him the day of the incident, at the hospital, where he was questioned and he stayed there. He returned home at 12:00 AM. His clothes were blood stained; he was wearing the same clothes when the police reached the hospital. They did not ask him about the blood nor did he produce the clothes to the police. He says that he and PW-

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 12 1 hired a TSR near the Police Post but was not able to recollect the person who had picked them up; he also deposed that a policeman was present in the PP and told them immediately to take the injured to the hospital. He says that the occurrence of 05.09.94 took place for about 5 minutes hardly and about 10-15 persons gathered at that time. The occurrence dated 07.09.94 ended within 2 minutes and people of the Gali gathered thereafter. He futher states that the place of occurrence was a thorough fare, with houses on both sides. On the front side of his house there was a 7 feet wide passage. PW-2 deposed that Pappu used to live near the rear side of his house and Rajender used to come to the Gali; he also knew Anoop as he used to go near his shop. He knew Rajpal accused as he was living in block No.18 earlier and was his distant relative.

30. PW-5, Constable Om Pal Singh deposed that he, with the complainant PW-1, Constable Narinder and Inspector Ashok Kumar, went searching for the appellants and arrested all of them at about 10 PM opposite Nirankari Bhawan, Plot No.25 on the pointing out of PW-1. He stated that one churri was recovered from the right dub of the accused Rajender. Accused Anoop was interrogated and he stated that he had concealed the sword behind a wall at bus stand No.13 and he lead the police party to the said place and produced a talwar from behind the wall of the bus stand. In the cross examination, he stated that the SHO returned from the hospital at about 4 PM and ASI Vijay had received the DD in the PP at about 12:55 PM and he reached on foot from PP to the spot of occurrence. He stated that the photographer and finger print expert reached the spot together. He says that Vijay‟s father was also joined during the investigation in between 4-5 PM at the spot of incident and he corroborated that there are several residential houses near the spot of the incident. The police returned to the Police Station the night after the arrest of the accused, at about 12 AM. He deposed that some secret information was received at about 10 PM at Nirankari Bhawan. He further states that the passersby refused to join the investigation. He stated having told the police, in his statement that a churri was recovered from the right "dub" of Rajender; he was confronted with his previous statement where he stated that this was done from the left "dub". PW-15 stated that the subsequent FIR 450/1994 was recorded on 08.09.94, at about 11:40 AM and that in DD No.11 and 12 the name of the assailants, name of the deceased, place of occurrence, and the name of the Complainant were not mentioned.

31. PW-16 was the investigating officer in this case; he deposed that he along with his other staff including PW-1 and PW-2 went back to the spot of incident. He claims having received secret information about the accused‟s presence, at 10:00 PM on 07.09.94 when he was present near Nirankari Bhawan, TrilokPuri that the accused in this case were present near

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 13 block no.13, bus stop of Trilokpuri. A raid was carried out at block no.13 bus stand and on the pointing out of PW-1 all the four accused were arrested. He searched the accused Rajender which yielded a Churri, which was drawn in a sketch. He claimed that Anoop disclosed having thrown away the Talwar behind the wall near the bus stand. His interrogation was recorded by the witness in the case dairy. He deposed having reached JPN hospital on 08.09.94 and conducted inquest on Vijay‟s body. The report was exhibited as Ex. PW 16/D. He deposed to preparing the brief facts and having recorded statements of the identifying witness, i.e. PW-1 and PW-2. In the cross examination, he deposed that ASI Vijay Pal met him at the spot at about 1.15 PM and stayed there only for 5 minutes. During this period he only enquired about the assailants from ASI Vijay Pal who informed him that the injured had been moved to the hospital. He also stated that he reached JPN hospital at about 2 PM and that he did not interrogate anyone in the hospital before collecting the deceased‟s MLC. He left the hospital along with Bal Kishan and Chandar Mohan at about 3.30 PM. He stated that the police did not have the addresses of the four accused at the time of recording the FIR, and was confronted with Ex. PW-1/A, the previous statement, which did record that the addresses of Rajpal and Anoop were mentioned. He confirmed that the spot of the incident was surrounded by houses and that the distance between the house of the deceased and the first jhuggi of the park was about 12 feet. PW-2 Chandar Mohan was not feeling well when he came to the spot and accordingly left the spot at about 4/4:30 PM. The place where the witness received secret information was a thickly populated area, where people were coming and going at that time. He asked 4/5 persons to join the proceedings but they declined. The distance between the place of information and the place of arrest is about 150/200 yards. The secret informer did not accompany the witness to the place of arrest. No one was present at the bus stand when PW-16 arrested the accused. He stated that the Churri was recovered from Rajender‟s right side dub (of the pant). He did not seize Rajender‟s clothes. The witness confirmed that the seized knife was blood-stained. The sword was seized from Anoop, near a public park, and no residential houses were located. It was lying at the back of the park facing a wall. PW-1 met the witness in the hospital on the following day at about 10:00 AM; Chandra Mohan also met him there. He completed inquest proceedings by 12:00 PM. Immediately thereafter he handed over the inquest papers to the doctor.

32. The Post Mortem report Ex. PW-11/A lists out the injuries found on the deceased‟s body, and the probable cause of death:

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 14 "...Opinion: "Injury No.1,3,4,11,12,14 were caused by some blunt object/surface impact. Injury No.2,5,6,7,8,9,10,13 were caused by the sharp edged weapon. Injury No.13 was sufficient to cause death in ordinary course of nature."

33. The prosecution story hinges to a great extent on the testimonies of PW-1 and PW-2, i.e. the brother and father of the deceased. Both stated that on 05.09.94, there was an altercation, between Rajender and Pappu, on the one hand, and PW-2 on the other. The latter had intervened and rebuked the two accused. The altercation apparently turned into some kind of scuffle. The deceased Vijay too had intervened, as had members of the public. That took place two days prior to the date of the incident, at 03:00 PM in the afternoon. The accused present (Rajender and Pappu) apparently threatened harm to the deceased, and PW-1, when they intervened and tried to pacify the assailants. On the day of the attack, i.e. 07.09.94, around 1:00 PM the four accused attacked the deceased, when he was drinking water from a public tap. Anoop attacked him with a sword; Rajender attacked him with a churri, Rajpal held him with both hands, while Pappu was exhorting the others. This was witnessed by PW- 1 and PW-2, who were near the spot. They however, could not rescue. The appellants‟ argument was that the witnesses deposed falsely, because if indeed they were present, some attempt to rescue the deceased would have been made. However, PW-2 stated that Anoop had threatened them. Moreover, this alone cannot be a circumstance to discount their testimonies, because a sudden attack, of the kind alleged, can stun even bystanders, and the whole incident can be over within a few minutes, leaving such witnesses rooted to where they are. Furthermore, it is unnatural for such bystanders or witnesses not to intervene, for fear of personal harm or injury.

34. There are, however, some fundamental problems with the eyewitness‟s testimony. PW-1 states that they had intimated a PP on the way to the hospital. However, this is not corroborated by the police witnesses, including PW-5. Secondly, there is no dispute about the timing of the attack; all the witnesses mention more or less the same time, i.e. 1:00 PM. It is also a matter on record that the place is in the midst of a crowded neighbourhood, with houses all around, and juggis nearby. PW-1 and PW-2 mentioned that on the day of the previous attack, just two days before the main attack, several persons (10-20) were present, and had intervened to stop the fight. Yet, on the fateful day, the two witnesses depose that no one was present, even though it happened at a reasonably early hour, i.e. just before lunch time. This appears to be highly improbable, in a fairly crowded neighbourhood. The prosecution does not also suggest that this was a special day, or a holiday. Thirdly, PW-2

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 15 stated that his Thiya was some distance away; according to him, it was 8-10 minutes‟ walk, whereas PW-1 stated that it was 10-15 minutes‟ walk away from the place of incident (which was near their house). Considering that PW-2 was a vegetable vendor, the chances of his being present at the spot, at such an early hour, seem doubtful. Fourthly, there are discrepancies between the version of various witnesses about the investigation and recording of statements. PW-2 deposed that:

"I was interrogated by the police in the hospital. I stayed in the Hospital and PW1 had also gone with the police. I returned to my house at about 12 midnight." However, PW-5 deposed that:

"The father of Vijay was also joined during the investigation in between 4-5pm at the spot of incident"

Yet other versions were furnished by the IO, PW-16:

"I along with my other staff including Balkishan and chandarmohan came back at the spot of incident.....

....I left the hospital along with Bal Kishan and Chandar Mohan at about 3.30pm Chandar Mohan was not feeling well when he came to the spot and accordingly left the spot at about 4/4:30."

Lastly, the MLC PW-3/A mentions that the patient (Vijay) was accompanied by his brother to the hospital (PW-1) with a history of stabbing. It also says that the brother recognized the assailants; yet the names are not recorded in the document. However, PW-1 recognized and identified the assailants, and even deposed that the names were furnished to the doctor attending the deceased. These, as well as the absence of any name in the earliest DD entry, of the assailants, cast grave doubts about the veracity of PW-1 and PW-2.

35. The appellants had argued that lodging of the FIR and the surrounding circumstances were suspicious. It was suggested that according to the police witnesses, the FIR entry was made on 07.09.94, at 4:00 PM, even though the first intimation was received at 12:55 PM, and the police officials had reached the hospital, and even recorded statements soon thereafter. Though this by itself does not lead to inference of late recording of the FIR, there are however, other circumstances. PW-15 had stated that the magistrate in charge was intimated through despatch of special report at 4:30 PM, and the constable who took that, reached the police station at 6:30 PM. The document, in the form of despatch entry in the daily diary, marked as Ex. PW-15/C and the inward DD entry PW-15/D was sought to be relied on. However, the actual endorsement was not produced. Moreover, the entries relied

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 16 on, according to the admission of PW-15, did not reveal who the Magistrate was, and where the report was furnished. The third suspicious circumstance in this regard is that the FIR in this case is No. 449/94, recorded at 4:00 PM. The register was however open, in the sense that no other FIR was registered till 11:40 AM on 08.09.94. Other facts having an important bearing on this are that the Inquest Report Ex. PW-16/D was concededly prepared on 08.09.94. If the police had reached the hospital, and taken down the statement of PW-1 and PW-2, there is no reason why the inquest report could not have been prepared the same day; the investigation continued at site according to the prosecution after 4:00 PM. More significantly, the Inquest Report does not bear any FIR number. This is despite the FIR having been registered at 4:00 PM the previous day. There is no reason why the police could not have handed over the body for post-mortem examination on the same day, i.e. 07.09.94, since the details of attack were known. The request for post mortem, and the inquisition, was made on 08.09.94.

36. At this stage, it would be useful to recollect the decision of the Supreme Court in Mehraj Singh (supra) where the duty of the court to scrutinize the evidence and see if the FIR was lodged in time, was emphasized:

"12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging 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 dispatching 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 check equally important is the sending of the copy of the FIR along with the dead body and its reference 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

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 17 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."

This aspect had been highlighted in the earlier decision, reported as Thulika Kali v. State of Tamil Nadu, (1972) 3 SCC 393, to this effect:

"....... First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence 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 eye-witness present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging the first information report should be satisfactorily explained. ...."

In this case, the discrepant nature of evidence, and the circumstances discussed above, throw up doubts about whether the FIR was indeed recorded when it is alleged to have been lodged, by the police. The absence of the Special Report, name of the Magistrate endorsing the same, delay in seeking post mortem, and delay in preparing the inquest report, the absence of the FIR description in the said report, even though the report was prepared the next day, all point to suspicious circumstances about the timing of the FIR, and correspondingly, no satisfactory explanation for such delay was given.

37. That takes the discussion to the arrest and surrounding circumstances. Now, the version of PW-1 and PW-2 was that they knew and could identify the accused. The prosecution case is that the accused had fled the spot and the police had launched a search operation. PW-16 mentioned that they were arrested near block no.13 Bus stand, with the aid of an informer. However, PW-5, another policeman, deposed that they were arrested at the pointing out of Balkishen PW-1.

38. As regards the weapons of offence, and their recovery, the prosecution alleges that they were recovered pursuant to statements of the accused. The appellants, on the other hand, argue that the recovery of the churri was shrouded in suspicion, because Rajender‟s personal search yielded no result, as is evident from Ex. PW-1/C; yet the same day, by PW-1/H, it was supposed to be recovered. It was also submitted that this recovery is unbelievable for the

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 18 reason that a foot long knife could not possibly have been concealed, on the person of the accused, as suggested by the prosecution, the improbability of the recovery being further underlined by the circumstance that the time of offence was 1:00 PM, whereas the recovery was after 10:00 PM, i.e. over 9 hours after the incident. If the Appellant had indeed used it, there would have been no question of his carrying it around all the while. Lastly, it was submitted that there is inherent proof that this article was planted, and was not the weapon of offence, because the blood alleged to have been smeared on it, was confirmed not to be of human origin, let alone of the deceased‟s grouping. It is a fact that the knife is 12.1‟ long with a blade of 8‟ and a width of 3.4 cm or over an inch. Apart from the discrepancy as to which part (left or right dub) of the accused it was recovered from, a minor contradiction, the prosecution does not explain why an assailant who used it within the view of eyewitnesses, who recognize him, and were related to the deceased, should be carrying it all the while. If the prosecution version about the Appellant Rajender having fled the spot, and having to be traced is correct, it is not believable that he would keep the weapon of offence, on his person, and an inconvenient one - being a foot long dagger. To compound this, the prosecution story gets gravely undermined by the fact that even though the knife had some blood, it was not of human origin (Ref PW-16/H, which states that the churri was marked Bio-D, and though it had blood, which was present in other articles, the human origin of the blood could be confirmed only in other articles, i.e. Bio-A1, A2, A3, Bio/ B and Bio/E, not Bio-D : Para 7 of the report). In view of these, the story of recovery of the knife, and it being the weapon of offence, is falsified; it appears to have been introduced by the prosecution to support its case.

39. Similarly, as regards the sword, which the Appellant, Anoop, is alleged to have wielded, to attack the deceased, Ex. PW-1/L is the Memo through which the recovery of this weapon is said to have been effected. The actual words of the accused are that he washed the sword under a water tap, stealthily "maine Talwar ko moke se bhagkar Raste Mein Pani ki Tooti par Chupke se Dhokar Saf Kar diya tha." However, the rest of the statement, about where he hid the sword, its dimensions, its previous use, etc, was recorded in the exhibit. Now, as to the admissibility of this statement, only such of it as facilitates the discovery of an article, or leads the police to the object, is admissible. The admission (about washing the sword stealthily) is clearly inadmissible, by reason of Section 27 of the Evidence Act. The statement as to previous use of the sword, is likewise inadmissible. The question is whether in these circumstances, the document can be relied on for the limited purpose of establishing the recovery itself. The celebrated authority, Pulukuri Kottaya v. Emperor AIR 1947 PC 67

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 19 has guided the judicial approach in this country, for this purpose, and has been followed in several Supreme Court judgments. The Privy Council held, in Kottaya as follows:

"Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown has argued that in such a case the 'fact discovered' is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S. 26, added by S. 27, should not be held to nullify the substance of the section. In their Lordships view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are admissible since they do not relate to the discovery of the knife in the house of the informant."

In this case, there is no disclosure statement. The exhibit is plain and simple a "pointing out" memo. There are no words in the document, connecting the sword with the Appellant Anoop,

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 20 or that he mentioned having hidden it at a specific place, which he wished to reveal. In these circumstances, the recovery memo is insufficient to prove the exhibit. No doubt, the fatal injury - No. 13, in this case, which led to the wound on the carotid artery which caused death could have been inflicted with such a sword, as the medical evidence led, suggests. Yet, there are other circumstances which leads this court to - quite apart from the issue of admissibility of Ex. PW-1/L - disbelieve the prosecution version. Here, the exhibit mentions that the Appellant Anoop had washed the sword, before hiding it. However, the sword, when recovered, according to the prosecution, had blood stains. Yet, according to the CFSL report PW-16/H, which states that the sword marked Bio-C had blood, which was present in other articles as well, but the human origin of blood could be confirmed only in other articles, i.e Bio-A1, A2, A3, Bio/ B and Bio/E, and not in Bio-C. In view of these circumstances, the recovery of the sword, as well as its having been used as a weapon of offence, is doubtful.

40. Apart from the above, the prosecution has not been able to satisfactorily explain if the Special Report was forwarded to the concerned Magistrate, nor why the inquest proceeding could not be held within reasonable time of the incident, because the facts were known, as also the identity of the alleged assailants; the MLC too were available. In Ramesh (supra) a Division Bench of this court emphasized the need to mention the FIR number and other details in the Inquest Report. It was held that:

"17. The law is well settled that the duty officer is required to mention the brief facts including the name of the assailant, names of the witnesses and the weapon used in the daily diary entry about the registration of the case. In the instant case all these details are conspicuous by their absence from D.D. entry Ext. PW 20/DA. There is no valid explanation as to why these details have not been mentioned. We have not been able to appreciate as to how the special report was sent without mentioning the name of the constable through whom it was dispatched, and no efforts have at all been made to bring on record the testimony of this constable which could have led corroboration to the testimony of the duty officer and other police officials about the factum of the recording of the FIR at the time at which it is claimed to have been recorded. We may also note that the prosecution has not even brought on record copy of the FIR which was delivered to the Ilaka Metropolitan Magistrate as a special report as the same would have indicated from the endorsement which is requires to be made by the magistrate showing the date and time of its receipt. As already referred to if Ashok Kumar was present at the spot when police came there as claimed by Dina Nath (PW 2) there could hardly be any occasion for the police officer to record his statement in the hospital. Considering all these facts we have no hesitation in coming to the conclusion that the prosecution has not been able to prove on record that the FIR was recorded at th time at which it is claimed to have been recorded."

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 21 Again, in Mahabir the need to comply with Sections 154 and 157 of the Cr. PC was highlighted as follows:

"25. It is also argued on behalf of the appellants that the inquest reported was delayed as the names of the culprits were not known and that the case was not registered at the time it was purported to have been registered. It is contended that it had been registered at a much later time. Dr. Bishnu Kumar P.W. 21, who performed the post-mortem examination, has made very significant statement. He has deposed that he had made endorsement on Ex. P.W. 21/D that the Investigating Officer had not completed the papers even up to 3 p.m. on 19-10-74 and, therefore, the post- mortem examination could not be held on that day. In his statement the Investigating Officer has admitted that there was some delay in preparing the papers for the post- mortem examination but he has added that the doctor was, pre-occupied and, therefore, the post-mortem examination could not be held on the 19th. No question regarding pre-occupation was put to the doctor. Fact, however, remains that the post- mortem examination was delayed for a day. The learned counsel for the appellants has urged that this delay alone is sufficient to cast a doubt about the authenticity of the F.I.R. Reserving our comments on this aspect of the matter for the present, we may observe that the delay in sending an inquest report to a Medical Officer is a circumstance which goes against the prosecution...

29. Section 154 is the only provision which says that on receipt of information relating to the commission of a cognizable offence it should be reduced to writing and be authenticated by the person giving it. The substance of the information is required to be entered in a book to be kept by the officer in-charge of the police station in such form as the State Government may prescribe in this behalf.

30. Section 157 provides for the sending of the report of information forthwith to the Magistrate empowered to take cognizance of the offence. If on information received or otherwise the officer in-charge of the police station has reason to suspect the commission of an offence, he is empowered to investigate under S. 156 of the Code.

.....Taken singly, such a delay or failure may not be sufficient to lead to the conclusion that the investigation was tainted or unfair. But when considered in conjunction with other infirmities or discrepancies, it may assume great importance and may cause suspicion about the purported time of its recording or even about its contents. First information report is expected to reflect the occurrence truly, without embellishment or fabrication. Its recording without any reasonable delay also excludes the possibility of conjuring up of a false case by the police. Thus to save the report from any kind of attack and also to derive assurance and authenticity to the facts stated in this report, compliance of the provisions of the Code and also of the Punjab Police Rules is essential. But in actual practice it has been noticed that this rule is observed more in breach.

37. The intendment of the legislature or that of the makers of the Rules is clear. No doubt the non-compliance of Section 154 and 157 of the Code or that of the Rules does not constitute a ground to throw away a prosecution case but it does emerge as a factor to be seriously reckoned with while appreciating the entire evidence. Its non-

observance is bound to cast some shadow on the case, obviously to its detriment,

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 22 because of the adverse inference. Its degree depends upon the facts of a particular case.

38. It is further argued on behalf of the State that the intention of sending a copy of the report to the Magistrate is to apprise him about the commission of the crime in his local jurisdiction and also about the fact that cognizance has been taken by the police. On receipt of this information he is able to control the investigation and has the power to give appropriate directions under S. 159 of the Code. It is legally true. The retention of these provisions even in Act No. (2 of 1974) Cr.P.C., 1973 has its own impact. More so, when the legislature has, in its wisdom, neither deleted nor amended them. Thus Sections 154 and 157 have enormous importance and cannot be treated as a mere surplusage. They are very salutary provisions, which can be utilised for counter-checks and balance for testing or evaluating the other evidence."

41. The unreliable recoveries made in this case, the failure of the prosecution to establish that the weapons of offence, alleged against the appellants, and the lack of motive as regards Rajpal, and more importantly Anoop (who is alleged to have used the sword), the delay in recording the FIR, as is apparent from a careful reading of the evidence, the failure to hold the inquest within reasonable time, and corresponding absence of any explanation, the inability to establish that the Special Report was forwarded to the Magistrate, all cumulatively throw doubts about the credibility of the prosecution story. For these reasons, this court is of the opinion that there is insufficient material to conclude that the appellants were guilty of committing the offences they were charged with. The findings recorded by the Trial Court, therefore, require to be, and are set aside. The Appeals accordingly succeed, and are allowed. The bail and surety bonds furnished during pendency of these Appeals are discharged.

S. RAVINDRA BHAT (JUDGE)

G.P. MITTAL (JUDGE)

MARCH 21, 2011

CRL.A.NOS.296/97, 477/97, 38/98 & 99/98 Page 23