@JUDGMENTTAG-ORDER
A.K. Shrivastava, J.
Convicted accused/appellant, Rajoo, has filed this appeal against the judgment of conviction dated 22.1.1990 passed by the learned 1st Additional Sessions Judge, Jabalpur in Sessions Trial No. 214/88 convicting him of the offence punishable u/s 302 IPC and imposing sentence of ringorous imprisonment of life and fine of Rs. 500/-, in default thereof, to suffer two months'' further rigorous imprisonment.
In brief, the case of prosecution is that 7-8 days prior to the date of incident, there had been a squabble between deceased Banu Barman and one Chhinga Mehler. On the date of incident, 28.11.1997, at 6 p.m., the accused and the deceased, reached near the shop of PW-2, Pandit Banshilal, near which a well is situated. The brother of deceased, Pappu (PW-1) was storing the water.
The further case of the prosecution is that near the place of occurrence, altercation continued between the deceased and the accused. The accused, as the allegation proceeds, called the deceased a ''scavenger'' as he was assaulted by a person belonging to that strata. The deceased reacted to the same and in turn stated that the accused and his father were ''scavengers''. In reply the accused said that, as deceased was denoting his father to be a scavenger, he would be killed. The accused thereafter went inside his house and came along with a Spear. His wife tried to stop him but she was thrust by the accused. Pandit Banshilal (PW-2) and Pappu (PW-1) also requested him to stop, but, he did not pay any heed and gave a blow of spear on the neck of deceased, as a result of which, he fell down and died.
The brother of deceased, namely. Pappu (PW-1) when came to the spot, found the deceased was besmeared with the blood and was dead. The accused when observed that deceased has died, fled from the spot.
The incident was reported by Pappu (PW-1), the brother of deceased, at the police station soon after the incident within half an hour, at 6.30 p.m. The first Information Report is Ex.P-1 which set the criminal law in motion.
Hardas Bairagi (PW-12) Town Inspector of Police Station Garha, reached the spot and found the dead body lying there. A ''Panchanama'' (Ex.P-10) was prepared, and the dead-body was sent to Medical College for post-mortem. Shri Bairagi seized the blood-stained earth, ordinary earth, the broken pieces of bangles of the wife of accused from his house and also seized the spear.
The blood stained clothes of deceased were seized, the accused was arrested on 29.11.1987 and after the investigation, the charge-sheet was filed u/s 302 IPC in the competent Court, which committed the matter to the Court of Session.
The learned Trial Judge, framed charge u/s 302 IPC, which was denied by the accused/appellant. His defense is on of false implication.
The prosecution, so as to bring home the charge, examined as many as 13 witnesses. Pappu (PW-1) is the author of First Information Report (Ex.P-1) and also an eye-witness. The other eye-witnesses are Banshilal (PW-2) and Lal Singh (PW-7) but they had turned hostile, Phoolwati (PW-3) is the wife of deceased who arrived at the spot, upon the information being supplied to her that her husband had been killed. Madhav Prasad (PW-4) is the formal witness of seizure memo of the dead-body, Pratap Singh (PW-5) is Constable who carried the dead-body of deceased to Medical College for post-mortem, Parwati Bai (PW-6), Virendra Kumar Palwari (PW-8), Beni Prasad (PW-9) and Bhagwandeen (PW-10) are the formal witnesses. Arjun (PW-11) is the witness of seizure of blood stained spear. Hardas Bairagi (PW-12) is the investigating officer and Dr. B.M. Shrivastava (PW-13) is the Autopsy surgeon.
The autopsy surgeon, Dr. B.M. Shrivastava, conducted the post-mortem on 29.11.1987 and notice deep incised wound 4" x 3" x 3" (deep over left side neck) extending from 3" below left cutting the cervical vertebra, soft tissues, veins, trachea, esophagus and spinal cord. The Doctor opined that the injury caused was homicidal in nature and was caused by hard and sharp object.
According to the Doctor the cause of death was shock, due to chopping off carotid arteries and spinal cord. His report is Ex. P-15.
The learned Trial Judge, after carefully scrutinizing the ocular and documentary evidence, held that the accused/appellant did commit the murder and found the charge of Section 302 IPC to be proved, as a result of which convicted the accused and passed the sentence mentioned hereinabove.
The accused/appellant feeling aggrieved by the impugned judgment and sentence, has filed this appeal.
Mr. Usmani, learned counsel for the appellant raised the following contentions:
(i) The FIR which has been lodged by PW-1, Pappu, has not been signed by him, hence, it is not admissible being in deviation of Section 154 of Code of Criminal Procedure;
(ii)it is unbelievable that PW-1, Pappu, was present at the spot, in as much, as he has not taken any steps to gather people who were present there to stop the accused from assaulting the deceased:,
(iii) if paragraph 3 of the cross-examination of PW-3, Phoolwati, the wife, is appreciated in proper perspective it would go a long way to show that the PW-1, Pappu. behaved in an unnatural manner. Hence it creates a dent in the fabric of the prosecution;
(iv) PW-12, Hardas Bairagi, the investigating officer has deposed that possibly the Kotwar lodged the FIR but no effort was made to bring the same on record and that creates concavity in the version of the prosecution;
(v) the eye-witnesses who have been declared hostile stood firm in their testimony;
(vi) ''Farsa'' seized from the accused used in the assault, though contained blood, has not been sent to for forensic examination and that is a factor to be taken note of in favor of the accused:
(vii) conduct of the deceased is also a facet to be taken note of in as much as the deceased had seen the accused coming with a lethal weapon but did not move from the place. This is an unnatural conduct on the part of the deceased.
The learned State counsel combated the aforesaid submission raising following pronouncements :
(a) Non-signing of the FIR by the informant is not fatal to the prosecution case in as much as the FIR is not the summum bonum of the criminal case but it only sets the criminal law in motion. Non-signing of the FIR may be an irregularity but it can not overturn the prosecution.
(b) The weapon is not sent to the forensic laboratory in certain cases but that is not of great significance and it cannot be the concluding factor to record an order of acuittal. He has placed reliance on the decision rendered in the case of
(c) There is no suggestion with regard to the non-signing of the FIR and hence, it does not render a vital blow to the prosecution case;
(d) There is no evidence on record that the deceased was aware that the accused was bringing a lethal weapon to attack him and in the absence of such evidence the conduct of the deceased can not be taken exception to.
Before appreciating the rival contentions of learned counsel for the parties, it will be relevant to mention certain important facts and evidence. Pappu @ Shyam Sunder (PW-1) is the brother of the deceased, he is also the author of First Information Report (Ex. P-1). This witness has stated that accused was telling to the deceased, as he was beaten by a ''Mehtar'', he too has become Mether, deceased opposed his version and replied denoting the accused and his father to be ''Mehter'' as a result of which the accused got annoyed and said that he would not spare and kill him. Thereafter he (accused) went to his house and came with a spear. He was stopped by his wife, who caught hold of him but accused thrust her. and she fell down. Thereafter inhabitants of the village tried to stop him, but, overpowering them, he gave a blow of spear on the neck, which resulted in the death deceased. The accused/appellant thereafter threw the spear in his house and took to his heels. This witness came to the spot from the well and found that the neck of deceased was chopped and he had breathed the last. The witness further states that there were exchange of abuses between the deceased and the accused for last 5 to 6 days. After considering his evidence deeply, we find nothing in his testimony so as to disbelieve him. This witness has proved the FIR (Ex.P-1) and there is nothing inconsistent in his testimony. He was cross-examined at length, but, he remained stable and firm. The entire picture of the brutal episode became visible like a scene projected in mirror by the testimony of this witness.
Hardas Bairagi (PW-12) is the Town Inspector. This witness has reduced the FIR (Ex. P-1) into writing, which was lodged within 30 minutes of the incident. After arriving at the place of incident, he seized the dead-body, bloodstained earth, sent the dead body for the post-mortem, recorded the statement of the witnesses u/s 161 Cr.P.C, arrested the accused person and seized the weapon (the spear). He further states that on the same day i.e. 28.11.1997 he seized, the broken pieces of the bangles of the wife of accused from his house. The bangles, were broken as she tried to restrain the accused to commit the said sin.
Arjun (PW-11) is the witness to seizure of spear. This witness has stated that in his presence the police seized blood stained spear from the house of the accused, the seizure memo (Ex. P-9) bears his signatures. Nothing has been elicited in the cross-examination so as to dis-believe this witness.
Taking into consideration the testimony of Pappu (PW-1), Arjun (PW-11), Hardas Bairagi, I.O. (PW-12) and PW-13, Dr. B.M. Shrivastava (the autopsy surgeon), as well as the documents Ex.P-1 the FIR, EX.P-8 the seizure memo of Spear, Ex.P-13 the seizure memo of broken bangles of the wife of deceased, Ex. P-15 post-mortem report, it would reveal, that, there is no room, to hold the accused to be innocent and he had not committed any offence. The evidence adduced demonstrate that accused/appellant committed culpable homicide amounting to number.
Now we shall proceed to consider the contentions raised by learned counsel for the appellant. The first contention he has raised is that the FIR, which has been lodged by PW-1 Pappu, has not been signed by him, hence, the same is not admissible, being in deviation of Section 154 of the Code of Criminal Procedure. The contention at a glance appears to be attractive, but, on deep scrutiny found to be devoid of any force. Section 154 of the Code of Criminal Procedure reads as under :
154. Information in cognizable cases. -(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) ***
(3) ***
(emphasis supplied)
It is well settled in law that FIR is not a substantive piece of evidence and has a limited use. It can be used to either contradict or corroborate the maker thereof in the manner provided under the Evidence Act. The real purpose of the FIR is to set the criminal law in motion and to confront for the purpose of finding out any contradiction. We may refer with profit to the decision of the Apex Court in this regard.
Non-obtaining of signature is a procedural irregularity, but, it can not over-turn prosecution. This proposition was specifically dealt with by the Division Bench of Calcutta High Court in the case of
The Division Bech of Bombay High Court in the case of
Now, the admissibility of first information report depends not on the fact that it is signed by the person making it, but on the fact a first information report given in writing or taken down by a police officer would be a part of the official record as the substance of such information is to be entered in a book kept by the station officer in the form prescribed and that may attract the operation of the provisions of S.35 of the Indian Evidence Act. See
The division Bench of Punjab & Haryana High Court in the case of Zora Singh and others vs. State of Punjab 1984 (2) CRIMES 854 has also laid down the same law. Para 9 of the said judgment is worth is reproducing as under:
9. Another argument advanced by the learned counsel on this point is that according to the statement of Inspector Amarjit Singh (P.W. 8) who recorded the First Information Report on the Statement of Manjit Kaur (P.W. 6), her thumb impression or signature was not obtained in the Daily Dairy Register although according to the Police Rules the first informant is required to thumb mark or sign the relevant entry in the Daily Dairy Register relating to the lodging of First Information Report. It is contended that this would show that Manjit Kaur was probably not present in person when the First Information Report was recorded. This contention again is unacceptable. From the non-compliance of Police Rules by the Investigation Officer, the presence of Manjit Kaur (P.W. 6) at the time of the lodging of the Report does not become suspect. It is no fault of her''s that the Police Inspector failed to Obtain her thumb impression on the Daily Diary Register when she lodged the First Information Report.
In this view of the matter, we have no hesitation to hold that FIR was duly lodged by PW-1 Pappu and the same has been proved in accordance with the law. There is no suggestion with regard to the non-signing of FIR in the cross-examination and, therefore, it does not render a fatal blow to the prosecution case. In this context it will be relevant to mention that, u/s 114 (e) of the Indian Evidence Act a legal presumption would be that the official act must have been duly performed. The pronouncement of Apex court in the case of
The Second contention of learned counsel for the appellant is that if the testimony of Phoolwati (PW-3) is taken into consideration, whatever has been said by Pappu (PW-1) does not become untrustworthy. If we see the statement of Phoolwati (PW-3), we find that there is nothing in her statement so as to discredit the testimony of Pappu (PW-1). In para 1 she has stated that on the date of incident at six in the evening, Lal Singh informed her that her husband has died and accused had killed him. She ran towards the spot and fond that near the well dead-body of her husband was lying. In para 3, this witness has denied the Suggestion that, Banshi Lal Singh and Pappu were not present on the spot. We are unable to understand how and in what manner it can be said that testimony of Phoolwati sweeps the testimony of Pappu (PW-1).
The third contention of learned counsel that the statement of PW-1 Pappu is unbelievable. We are not impressed by this argument. Merely because the statement of the eye-witness goes against the appellant, it can not be said that, he is not reliable. Whatever has been staled by him is an outcome of his natural conduct. There is nothing in his testimony, so as to dis-credit or disbelieve him. We are of the firm view that this witness was present when the incident occurred. Merely because this witness has not intervened, is itself no ground to dis-believe him. This witness was bare handed and the accused was having deadly weapon like spear. He inflected a fatal blow despite the fact that his wife endeavoured to restrain him. Therefore, this witness might have, rightly though, not to intervene.
The fourth point, which has been advanced by the learned counsel for the appellant is also devoid of any force. Merely because some guess work or suggesting is made in the cross-examination in the testimony of I.O. suggestion the possibility of lodging the report by Kotwar would in itself, is no ground to discard the entire case of prosecution. In the same breath this witness has stated that it might be possible that the report, do not constitute any offence. At this juncture, it will be relevant to mention that no such suggestion was ever made to any of the other prosecution witnesses. No such question was put to PW-1 Pappu@ Shyam Sunder (eye-witness) in this respect. In the defense as well, the Kotwar or any other witness had not been examined. In this view of the matter, we are not impressed by the contention raised by learned counsel for the appellant.
The fifth contention which has been raised by learned counsel is that the eye-witnesses who have been declared hostile stood firm in their testimony. Be that as it may, the moot question for consideration is, why the testimony of Pappu (PW-1), who is an eye-witness, should be dis-believed. This witness has not been shaken during cross-examination. He remained firm and stable. Merely because the other eye-witnesses had turned hostile, there is no warrant in law as such to hold that the other eye-witness should be dis-believed. It is true that this witness is the brother of the deceased but this in itself, is no ground to disbelieve his evidence. The law on this point is well settled that the testimony of close relatives should be scrutinized cautiously. We have given our anxious consideration, while appreciating the testimony Pappu and we find nothing to dis-credit him.
The sixth contention raised by the learned counsel for the appellant is that a Farsa seized from the accused containing blood spots, has not been sent for Forensic Examination. It will be relevant to mention that Farsa was seized and the relevant documents of seizure are Ex.p-8 and Ex. P-9. These documents have been proved by Arjun (PW-11). In cross-examination this witness has categorically stated that deceased was not related to him. There is nothing in his testimony to dis-believe him or to discredit the recovery of the weapon (Farsa) in his presence. In the case of Shashidhar Singh and another v. State of M.P. 1998 (I) MPJR 50 : 1998 (1) JLJ 28, this Court has clearly laid down that even non-recovery of the weapon would not amount to a fatal defect. In this view of the matter if the seized blood stained weapon, was not sent for serological examination, it would not be fatal for the prosecution, especially in view of the deposition made by eye-witness Pappu (PW-1) accusing the applicant and the recovery of the weapon (Ex. P-8 and Ex. P-9) proved by Arjun (PW-11). The weapon if not sent to the forensic laboratory in certain cases would not be of great significance and definitely it cannot be the concluding facet to record an order of acquittal. We are fortified in our view by the decision rendered in Raghunandan''s case (Supra). In our considered opinion, the pronouncement of the Apex Court in Raghunandan''s case (Supra) is fully applicable to the case in hand.
Presently we shall proceed to dwell upon the last contention put forth by the learned counsel for the appellant, it is urged by him that conduct of deceased in not reacting after seeing that accused coming with lethal weapon and not moving from the place, is an unnatural conduct on his part and therefore the prosecution case should be dis-believed. According to us, this argument is devoid of any force. If we peruse the spot map (Ex.P-7) it would reveal that the house of appellant is only 36 ft. far off from the place of occurrence. The incident occurred in two parts, in the former part there had been exchange of filthy abuses between the accused and deceased. The accused thereafter went inside his house and came with Faras. Thus it may quite possible that, on seeing the accused going inside his house, deceased might have felt that he was safe and the dispute hand come to an end. But when the accused came out armed with Farsa and the distance of the place of incident from his house is only 36 ft., there was no occasion for him to run away from the spot. There is nothing on record that the deceased was aware that the accused was bringing the lethal weapon to attack him. In the absence of such evidence the conduct of deceased cannot be taken exception to.
In the wake up above discussion, we are not at all impressed by any of the contentions raised by the learned counsel for the appellant. After careful consideration of the entire evidence and other material on record, we are of the firm view that the learned Trial Judge did not commit any error in convicting the appellant of the offence punishable u/s 302 IPC and passing the sentence for rigorous imprisonment of life and fine of Rs. 500/-.
Resultantly, the judgment and sentence passed by the learned Trial Judge are hereby confirmed. The appeal being sans substance, stands dismissed.
