K. Sreedhar Rao, J.@mdashThe material facts of the prosecution case disclose that one Siddaiah is the deceased and he belongs to scheduled caste. PWs.2 and 5 are the sons of the deceased. There was a dispute between the accused and the deceased over sharing of a tree. In that connection there were intermittent quarrels between the accused on the one part and the deceased, PWs.2 and 5 on the other part. On 25.02.2008 in the morning there was a quarrel between the accused and PWs.2 and 5 and in the night the accused was claiming that the deceased belonged to a scheduled caste has become highly arrogant and that he will finish him one day. On the same day, around 8.00 p.m., the deceased was going on the outskirts of Malavalli on Mandya road along with PWs.2 and 6. As per the FIR version, the accused accosted and caused stab injuries on the deceased. PW-1 is the leader of Dalitha Sangarsh Samithi. He received a phone call at 8.30 a.m. about the murder of Siddaiah on the outskirts of Malavalli towards Mandya. PW-1 goes to the spot. He finds PWs.2 and 6 at the spot. PW-2 refused to give complaint on the ground that he will hold Dharna. The dead body was on the road. Since PW2 was not prepared to give the complaint, PW-1 lodged the complaint to the above effect narrating the said fact. PW15 has registered the complaint Ex.Pl and submitted the FIR to the Magistrate. The inquest proceedings are held the next day morning. The dead body is subjected to autopsy. The post mortem discloses that the death is due to shock and hemorrhage as a result of cutthroat injuries. The accused is arrested. The knife used for committing the murder is discovered at his voluntary instance. The blood stained clothing and blood stained knife were sent to the FSL. The FSL report is marked in evidence. However, serological report is not produced. The accused is charged for committing the offence punishable under sections 302 and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. The Trial Court convicted the accused for the offence punishable u/s 302 and acquitted him of the offence punishable u/s. 3(2)(v) of the SC/ST (POA) Act, 1989.
3. The accused is in appeal challenging his conviction.
4. The Trial Court has relied upon the evidence of PWs 2 and 5 who are said to be the eye witnesses to the incident. The other witness PW-6 has turned hostile. On the basis of the evidence of PWs.2 and 5 and on the basis of the discovery evidence, the accused was convicted.
5. Upon hearing the SPP and the counsel for the appellant, we noticed the following discrepancies in the investigation and in the evidence which does not warrant conviction.
1. In the FIR it is stated that on 25.2.2008 at about 8.00 p.m. the deceased went along with PWs.2 and 6 towards Mandya road on the outskirts of Malavalli. The accused came and stabbed the deceased. PWs.2 and 6 are cited to be the eye witnesses. The FIR version discloses that PWs.2 and 6 kept the body on the road and they contemplated of holding Dharna and refused to give complaint. PW1, who is the leader of Dalitha Sangarsh Samithi, on hearing the information comes to the spot. Since PW2 was not willing to give the complaint, PW1 lodges the complaint as per Ex.Pl which is registered as FIR.
2. In the evidence of PW1 he comes out with a contradictory version that he went to the spot, none of the children of the deceased were present and only villagers had gathered and he gives the complaint to the police. The evidence of PW-1 is totally in contradiction with the contents of the FIR.
3. PW1 does not speak anything in the evidence about PW2 contemplating to hold dharna by keeping the dead body on the road. PWs-2 and 6 also do not speak anything in this regard and they don''t even whisper contemplating to hold dharna by keeping the dead body on the road and refusing to give the complaint.
4. The FIR discloses that PWs.2 and 6 are only the eye witnesses to the incident. But in the course of investigation, the I.O. has improved and prevaricated the version to project that PW-5 was also an eye witness to the incident.
5. The FIR version discloses that the deceased, PWs.2 and 6 went together. But the version of PWs.2 and 6 discloses otherwise that they had gone separately and they were attending to calls of nature. On hearing the cries of deceased, they come to the scene and see the accused stabbing the deceased.
6. The contradictions between the version in the FIR and in the evidence of PWs.1, 2 and 5 is inconsistent and does not corroborate each other on the material circumstances. The reason for the delay in lodging the complaint stated in the FIR is not spoken and corroborated by PW.2. PW. 1 comes out with the version in the evidence that when he comes to the spot, none of the children of the deceased i.e. PWs.2 and 5 were present and he collects the information from the villagers who had gathered at the scene and lodges FIR.
6. In view of the above discrepancies and inconsistencies, it becomes difficult to digest that PWs.2 and 5 are the eye witnesses to the incident. The reason for the delay is also not properly explained and proved. The recovery evidence is inconclusive. Blood stained clothing and blood stained weapon are sent to FSL. The FSL report is produced. However, serology report is not produced before the court and marked in evidence. In view of the said inconsistencies, the order of conviction is bad in law.
7. The appeal is allowed. The accused is acquitted and directed to be released forthwith, if not required to be detained in any other case.
8. The jail authorities are directed to set at liberty the accused forthwith, if not required to be detained in any other case.
9. The operative portion of the order shall be sent to the Jail authorities and to the Trial Court for compliance.
10. Before parting with the case, it is necessary to make following suggestions to the investigating agency and superior police officers for strict compliance of the provisions of the Cr.P.C. for ensuring that there should not be any theoretical flaw in the prosecution version disclosed in the charge sheet.
10.(a) In most of the cases it is seen that there would be discrepancy with regard to names of the accused persons and their number between the FIR and the statements recorded u/s. 161(3) Cr.P.C. So also, there will be discrepancy with regard to names of the accused in the statements recorded u/s. 161(3) Cr.P.C. of one witness and the other and there would be inter se inconsistency in the statements so recorded. Sometimes, although there would be sufficient evidence against the accused, for the reasons best known the accused would not be sent for trial and they would be given up on the pretext of want of evidence. All such materials in the final report/charge sheet would be many a time manipulated by the I.O. to benefit the accused.
The provisions of Sec. 36 of C.P.C. reads thus:
36. Powers of superior officers of police.-
Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station.
It is mandatory that the superior officers equally have the jurisdiction over the SHO and more so, the Superintendent of Police of the District is the final superior Officer to supervise the investigation. As a routine we see that the superior officers including the Superintendent of Police would not conduct any supervision over the cases involving heinous offences like murder, dacoity, kidnap for ransom, robbery etc., It is therefore, directed that the Home Secretary, the Director General Police and the Commissioner of Police shall issue circular instructions to all the Superintendents of Police in the State to effectively supervise the investigations where the offences triable by the Sessions Court and to evidence such effective supervision, the SP shall personally verify the final report before it is filed in the Committal court, he shall make an endorsement to the effect on the final report that the investigation is done correctly and properly in accordance with law and such endorsement of the SP on the final report shall be made mandatory before it is filed before the Committal Court and the compliance of this direction to be reported to this court.
10.(b) The provisions of Section 174 of Cr.P.C. mandates that the S.H.O or empowered police officer before proceeding to conduct inquest has to intimate the Executive Magistrate. The provisions of section 174(3) Cr.P.C. however insists that inquest should be necessarily conducted in case of dowry death and forwarded to the District Magistrate or the Sub-Divisional Magistrate. But in other cases, upon an information of murder, unnatural death, accidental death etc., an intimation be given to the Executive Magistrate and it is optional for the Executive Magistrate to conduct inquest himself or depute any of the Executive Magistrate for conducting inquest or he may in the absence of such deputation to conduct the inquest by the Executive Magistrate, the I.O/S.H.O can conduct the inquest. It is commonplace that in almost all cases, there is no prior intimation given to the Executive Magistrate, District Magistrate or Sub Divisional Magistrate before the inquest proceedings are conducted by the S.H.O and the inquest report is not submitted to the District Magistrate as required u/s. 174(2) of Cr.P.C. The purpose of the rule is to see that like FIR, the integrity of the inquest report also should be maintained and the Executive Magistrate may be informed of the proceedings. If there is any suspicion and if the case requires intervention of an independent authority for conduct of the inquest, it is the discretion of the Executive Magistrate to participate, for conducting the inquest or depute any of the Executive Magistrate to conduct the inquest with the assistance of the SHO. It is therefore directed that a Circular be issued in that regard to all the police stations for strict compliance of the requirement of law u/s. 174(2) of Cr.P.C.
11. In almost all cases we find that FSL reports are filed in the final report before the Committal court without filing the serology report. Many a time the serology report is produced at the time of evidence before the Sessions Court. So also some of the expert''s reports are not filed along with the final report filed before the committal court. The serology report is very essential to establish that the blood group of the blood stained material recovered from the accused, that it tally with the blood group of the accused. Without the serology report the FSL report would be incomplete. So also, the case of other expert''s report if not produced, there would be no scientific corroboration. It is therefore, directed that the committal courts shall not commit the case to the Sessions court u/s. 209 Cr.P.C. for trial unless all the scientific reports as required are filed in the final report before the committal court. The copy of the judgment also shall be circulated to all the subordinate courts in the State to enlighten the committal Magistrates that they should not commit the case u/s. 209 of Cr.P.C. unless the final report contains all the requisite material collected by the Investigation agency and relied upon by the prosecution.
The Registry is directed to communicate copy of the judgment to the Home secretary, Director General of Police, and the Commissioner of police to issue needed circulars to the Superintendents of Police in the State for strict compliance of the observations made and to report the same to this court. It is further directed that in the Police Manual the above observations may be incorporated as instructions for strict compliance as statutory rule.
