J.C.S. Rawat, J.@mdashBoth these appeals are directed against the judgment and order of conviction and sentence dated 8.10.2002 and 9.10.2002 passed by the Additional Sessions Judge, Fast Track Court No. 1, Pakur, in Sessions Trial No. 91 of 2000/5 of 2002 whereby the appellants have been sentenced to undergo imprisonment for life u/s 302/34 IPC and they have been further directed to pay fine of rupees two thousand each and in default of payment of the fine, to undergo further rigorous imprisonment for one year each.
2. Brief facts of the case is that on 20.8.1999 the informant''s husband Lakhiram Marandi came to his house from the school in the evening. After taking some snacks and tea, he went to his agricultural land where he had cultivated crops. At about 7.00 p.m., all of a sudden, the informant heard hue and cry of her husband. The husband of the informant was seeking assistance by raising alarms "bachao bachao". On hearing so, the informant Sila Tudu, with a torch in her hand, rushed along with her "Nanad" (PW 3), towards the place from where she was hearing the alarms of her husband. When she reached at the place of the occurrence, she saw that the appellants Sitaram Marandi, Srinath Hembram alias Bablu, Pramod Hembram alias Mari Hembram, Prem Chand Marandi alias Pemay were holding weapons i.e. sickles and gupti in their hands and they were assaulting the husband of the informant with the weapons which they were holding in their hands. Due to assault, her husband sustained serious injuries on his person. The informant also tried to rescue her husband. He fell down on the ground and he asked for a glass of water. In spite of falling down on the ground, the appellants continued assaulting the husband of the informant. On alarms, the. villagers rushed at the spot and seeing that the villagers had been coming to the place of the occurrence the appellants fled away leaving the husband of the informant at the spot. The matter was reported to the Police Station on 21.8.1999. Thereupon, Maheshpur PS case No. 43 of 1999 was registered against the appellants and investigation of the case was started. Inquest report was prepared. Post mortem on the body of the deceased was conducted by PW 2 Dr. Suresh Chandra Sharma. Statements of the witnesses were recorded u/s 161 Cr.P.C. and after completion of the investigation, charge sheet was submitted against the appellants.
3. Appellants were committed to the court of sessions; as the case was exclusively triable by the court of sessions, it was transferred to the court of Addl. Sessions Judge, FTC Pakur. The accused appellants were charged u/s 302/34 IPC and they denied the charges levelled against them and they claimed the trial.
4. The prosecution examined 10 witnesses in support of the prosecution story. PW 1 Stifen Hembram is a witness on seizure lists (Ext. 1 to 1/4). PW 2 Dr. Suresh Chandra Sharma conducted autopsy on the dead body of the deceased and post mortem report (Ext. 2) was prepared by him at the time of autopsy. PW 3 Sabitri Marandi is the sister in law (Nanad) of the informant and she has claimed to be the eye witness to the incident. PW 4 Sila Tudu is the informant who is the wife of the deceased. She has proved the fard beyan and she claims to be the eye witness of the incident. PW 5 Hiralal Marandi, PW 6 Ram Deri, PW 7 Baburam Marandi, PW 8 Matal Hembram, PW 9 Sukhu Dehri and PW 10 Iswar hemari have not support the prosecution version and they were declared hostile by the prosecution.
5. The appellants were examined u/s 313 Cr.P.C. after recording the prosecution evidence. All the appellants denied all the averments made in the evidence against them. The defence has not examined any oral or documentary evidence before the trial court. After conclusion of the trial, and hearing the trial court has convicted the appellants as indicated above.
6. It needs to be mentioned that there is no dispute about the date and time of death of the deceased, and the place of occurrence. The prosecution has also adduced evidence of PW 2 who conducted post mortem on the dead body of the deceased on 21.8.1999 and he found the following ante mortem injuries on the person of the deceased;
(i) Incised wound with blood clots and bloody fluids size 3 cm x 0.5 cm x deep through bones cutting both its tables;
(ii) incised wound with blood clots size 6 cm x 0.8 cm x deep to brain cutting through both the tables of skull bones situated on left side of front temporal area of head 5 cm above and to the left of left orbital margin;
(iii) Incised wound 4 cm x 2 cm x deep through and through upper lip to oral cavity extending to left side from mid line on upper lip.
(iv) incised wound 5 cm x 0.2 cm x partial skin deep from upper lip to below left ear lobule on left side of face;
(v) incised wound with blood clots size 17 cm x 1 cm x deep cutting through lower jaw bone mandible, extending from right chin to the left beyond face upto the neck in line below left ear (1.5 cm below) where depth is only skin deep.
(vi) Incised wound across the neck 6 c.m. x 0.5 c.m. x deep cutting the larynx upper part with blood clots,
(vii) Incised wound 10 cm x 0.5 cm. x deep to fascia and muscles transverse or neck below larynx at level of circular cartridge.
(viii) Incised wound with blood clots size 3.5 cm. x 0.5 cm. x fascia deep situated in right supra clavicularfossa.
(ix) A lacerated wound with blood clots size 2 cm. x 1 cm. x 1 cm deep situated on right side of chest on mid clavicular area.
(x) A lacerated would 3 cm. x 3 cm. x 1.5 cm. on posterior aspect of right arm 2 cm. below shoulder joint.
(xi) Bruise dark blue 15 cm. x 8 cm. on, irregular an intermittent present on lateral aspect of right arm.
(xii) Abrasion with dark brown intermittent bruises on right forearm size 6 cm. x 2 cm. situated 9 cm.
(xiii) Incised wound with blood clot 2.5 cm. x 0.5 cm. x skin on dorsal inter-digital space between base of thumbs and index
(xiv) Incised wound with blood clot 2.5 cm X 0.5 cm x Skin deep on mid dorsum of right.
(xv) Incised perforating wound with blood clot and bloody fluid size 3 cm X 1.5 cm X deep to thoracic cavity in chest wall right side in posterior axillary lines 7 cm above the right extreme and of costal margin.
(xvi) Lacerated wound with blood clot size 3 cm X 3 cm x 1.8 cm on abdomen in mid line 3 cm below xiphisterum on epigastria.
(xvii) Burn injury, irregular margins size 9 cm x 9 cm on left side front of chest with epidermis zone of hair follicles.
(xviii) Lacerated wound 3 cm X 1.5 cm X 1 cm on the left side front of chest over pectoral muscles area blood clots present.
(xix) Incised would size 6 cm x 2 cm x 0.8 cm with blood clots on left shoulder.
(xx) A lacerated wound size 8.5 cm x 0.5 cm x skin deep on left scapular area of back with blood clots.
(xxi) Abrasion 2 cm x 1 cm on right lower limb 15 cm below knee.
The doctor has opined that the death occurred due to shock and haemorrhage due to ante mortem injuries. The duration of death at the time of post mortem was assessed at about 18 to 36 hours before. He further opined that all the incised wounds indicated above may be caused by sharp edged weapons, like gupti, axe, sickle, and shovel. Apart from that, the prosecution has also adduced evidence of PW 3 Sabitri Marandi and PW 4 Sila Tudu that the deceased died at about 7.00 p.m. on 20.8.1999 at the place of occurrence. Apart from that, PW 8 Matal Hembram who was declared hostile, has stated that the deceased Lakhriram was killed at about 7.00 p.m. on 20.8.1999. His evidence to that extent is credible and cogent. The evidence of the hostile witness cannot be washed off entirely from the record. There is no cross examination of this witness on this point and this point has not been challenged in the cross examination.
7. Thus, it is established that the deceased died at about 7.00 p.m. on 20.8.1999 in his paddy field. Now it has to be decided as to who is the author of the injuries on the person of the deceased.
8. The prosecution has adduced evidence that the appellants were the authors of the injuries on the person of the deceased, whereas the defence has stated that the appellants have been falsely implicated in this case. The case rests on the direct evidence of the eye witnesses i.e. PW 3 Sabitri Marandi and PW 4 Sila Tudu, who are said to be living together in the same house. It also transpires from the record that PW 3 Sabitri Devi, the sister in law of the informant Sila Tudu (PW 4) was with PW 4 at the time of the incident at her house. PWs 3 and 4 have stated that on the date of occurrence at about 7.00 p.m., they heard hue and cry of the deceased from the agricultural land where her husband had gone to see his cultivation. Both the PWs 3 and 4 i.e. Sabitri and Sila Tudu respectively, rushed towards the place from where they heard the hue and cry of the deceased, the husband of PW 4. When they were going towards the place of occurrence, they saw that the appellant Sitaram Marandi, Srinath Hembram, Pramod Hembram, Premchand Marandi were assaulting the deceased, the husband of the informant. Appellant Sitaram was holding a gupti in his hand whereas appellant Srinath was holding an axe in his hand. Appellants Pramod Hembram and Premchand Marandi were holding shovels in their hands and they were assaulting the deceased simultaneously. When she reached at the spot, she asked the appellants not to assault her husband. The husband of the informant fell down on the ground due to assault caused by the appellants and he asked for a glass of water. The residents of the hillocks reached there and they sprinkled water upon the deceased. When the appellants saw that the hillocks people had reached at the spot, they fled away from the place of the occurrence. Thus, both the witnesses have claimed that they had seen the occurrence.
9. Learned Counsel for the defence contended that the eye witnesses relied upon by the prosecution are related to the deceased. PW 3 Sabitri Marandi is the sister of the deceased and sister-in-law of PW 4 Sila Tudu. PW 4 Sila Tudu is the wife of the deceased and their testimonies cannot be relied upon without corroboration by independent witnesses. Learned Counsel for the State refuted the contention. The plea of the defence that it would not be safe to accept the evidence of the eye witnesses who are close relatives of the deceased cannot be accepted by this Court. There is no such universal rule as to warrant rejection of the evidence of the witnesses merely because they are related or interested in the party to either side. In such a case, if the presence of such witness at the time of occurrence is proved or considered to be entirely of the evidence, tendered by such witness is found in the light of surrounding circumstances on probability of the case, to be treated it can provide a good and sound basis for conviction of the accused. Where it is shown that there is an enmity and the witnesses are near relative, the Court has duty to scrutinize their evidences with great deal of care, caution and circumspection. The testimony of related witnesses, if after deep scrutiny is found to be credible, cannot be discarded. Now it is well settled that the evidence of the witness(es), if he is credible, cannot be discarded merely on the ground that he is related or a partisan witness. It is also well settled that it is the quality of the evidence and not quantity of the evidence which is required to be adjudged by the Court to place credence or reliance on the statement. The ground that the witness being a close relative and consequently being a partisan witness should not be relied upon, has no substance. The relationship is not a factor to affect the credibility of the witness. It is more often that the relatives would not save the actual culprits and make allegations against innocent persons. The foundation has to be led that if the plea of false implication is made, the Court has to adopt a careful approach in the evidence to find out whether it is credible and cogent.
10. In the case of
Para 11: "10 We may also observe that the ground that the [witnesses being close relatives and consequently being partisan witnesses] should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366, para 25).
25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eye witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.
In the case of
14. Mr. Sawhney has argued that where witnesses giving evidence in a murder trial like the present are shown to belong to the faction of victims, their evidence should not be accepted, because they are prone to involve falsely members of the rival faction out of enmity and partisan feeling. There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there arc discrepancies in the evidence; whether or not evidence strikes the Court as genuine whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated, judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
Thus, merely by saying that PWs 3 and 4 are related to the deceased, their evidence cannot be discarded solely on this ground.
11. Learned Counsel for the defence further contended that there are contradictions in the testimony of the PWs about the manner of incident and about the manner of seeing the incident by the witnesses. Learned Counsel for the appellants further contended that in the FIR it has been indicated by the informant (PW 4). that when she reached at the spot, she tried to rescue her husband (the deceased); he asked for a glass of water and immediately he fell down on the ground. The appellants had been assaulting the deceased thereafter also. When the other villagers reached at the spot, they fled away from the spot. It was further contended that in her cross examination, PW 4 Sila Tudu has stated that she saw the incident from about 15 ft away from the place of the occurrence and she as well as PW 3 Sabitri Marandi raised alarms and when people rushed immediately to the spot, the appellants fled away from the spot. It was further pointed out that this fact is inconsistent with her previous statement recorded in the FIR. Learned Counsel for the State refuted the contention and contended that the said inconsistency or contradiction as pointed out by the learned Counsel for the appellants was not put to the informant PW 4 to explain the said inconsistency as provided u/s 145 of the Indian Evidence Act. In this context, reference may be made to the case of Raj Kishore Jha v. State of Bihar reported in 2004(1) SCC Cri. 212, wherein the apex court held as under:
12. The requirement of compliance with Section 145 of the Evidence Act was highlighted by the learned Counsel for the accused respondents.
13. The question of contradicting evidence and the requirements of compliance with Section 145 of the Evidence Act has been considered by this Court in the Constitution Bench decision in the case of
12. It is a settled principle of law u/s 145 of the Indian Evidence Act that if a witness is said to be contradicted with reference to his previous statement, his attention must be drawn to such evidence. When there is nothing to show that the previous statement of the witness which was not marked as an Exhibit, was placed before him/her and the witness was given a chance to explain his/her previous statement, that portion of the Exhibit cannot go in evidence. In this case also, he has put an isolated question and the witness (PW 4) was not asked to explain by drawing her attention to the previous statement recorded in the FIR. Thus, it cannot be held to be a contradiction. The FIR is not substantive evidence. Law is well settled on that issue. Still, the fact remains that the FIR can be used for the purpose of corroboration and contradiction to the maker of the FIR. The witness who was supposed to make statement in the FIR must be given an opportunity to explain the same. However, there is no cross examination nor any question was put to her about such averments made in the FIR. The statement made in the FIR as indicated above, amounts to her previous statement and unless she was confronted with the statement and asked to explain specifically, such statement cannot be used. It is a trite law that a previous statement of the witness even if admissible in evidence, cannot be used against the witness unless the witness is confronted with the same and his/her attention is invited to such a statement Thus, it cannot be held to be a contradiction.
We have gone through the entire evidence of the prosecution witnesses and the so-called contradictions shown by the learned Counsel. It is apparent from record that minor contradiction always remains in the testimony of a truthful witness and such minor contradiction cannot be looked into while appreciating the evidence if the genesis of the incident is not affected by the evidence. On conspicuous consideration of the entire evidence, the evidence of the eye witnesses i.e. PW 3 Sabitri Marandi and PW 4 Sila Tudu corroborates each other on material points and particulars. The manner of incident, the presence of both these witnesses (PW 3 and 4) are proved. Both these witnesses are natural witnesses. We have gone through the evidence of both the eye witnesses and we do not find any fault in the approach of the trial court to appreciate the evidence and we are fully in agreement with the findings of the trial court that the evidence of PW 3 Sabitri Marandi and PW 4 Sila Tudu are cogent and credible. The witnesses have been cross-examined at length and nothing has come out to discredit their testimony in the cross-examination.
Learned Counsel for the appellants further contended that the prosecution has not produced any independent witness in this case. He further pointed out that in the evidence of PWs 3 and 4, though it is alleged that a large number of villagers had reached at the spot, they were not produced before the court. The learned Counsel for the State refuted the contention and contended that it is not always necessary to have the evidence of all the witnesses of the incident on the same point. The Court has to see what is the quality of the evidence adduced by the prosecution. It is the quality and not the quantity of the evidence which is required. Learned Counsel for the State further contended that when the villagers, the other independent witnesses, reached at the spot the appellants had fled away. The Fard beyan (FIR) as well as the evidence shows that at the time of actual occurrence, only Sabitri Marandi, the sister of the deceased (PW 3) and Sila Tudu (PW 4), the wife of the deceased, reached at the spot and they saw the occurrence. The other witnesses named in the FIR reached at the spot immediately after the incident and they saw the appellants fleeing away from the place of the incident only. As we have pointed out, the evidence of PW 3 Sabitri Marandi and PW 4 Sila Tudu is cogent and credible. There is no obligation on the part of the prosecution to produce other witnesses to multiply the evidence of the incident on the same point. We cannot lose sight of the fact that it has now always became fashion that co-villagers are reluctant to appear before the court in criminal cases because the cases are kept dragging and the witnesses are harassed; they are threatened, intimidated and at the top of all, subjected to lengthy cross examination; so the witnesses avoid to come to the court. (See
13. It is also noteworthy to mention here that PW 4 Sila Tudu has stated that Sitaram Marandi appellant is the cousin of the deceased. She has further admitted in her cross examination that she had stated in para 8 that Sunila is the sister of appellant Srinath and Prem Chand Marandi and appellant had filed a complaint against the deceased which was registered as Sessions Case No. 112 of 1999 and it is pending before the Sessions Judge. Thus, there is an enmity between the parties. It is a settled position of law that if there is an enmity in between the two parties, nobody would come forward to favour any one of them so as to acquire enmity to other party. (See
14. It was further contended that two pahadiyas were also present at the spot. It has come in the cross examination of PW 4 Sila Tudu, but the name of Pahadiyas had not been indicated by witnesses. In the examination in chief, she stated that two persons living in the hillocks came there to give water to the deceased when assault was made by the appellants on the deceased. In the FIR also, it is stated that each witness had reached at the spot after the incident. It is also stated in the evidence of PW 4 Sila Tudu that the two hillock peoples also came there and they brought water and sprinkled it over the body of the deceased. In examination in chief, it is very much there that they reached at the spot after the incident whereas during cross examination, it was stated that they were present at the time of the incident. This contradiction was not put to the PW 4 Sila Tudu u/s 145 of the Indian Evidence Act and this point has already been discussed in the preceding paragraph. Thus, the appellant cannot take advantage of that contradiction in the evidence of the said prosecution witness.
15. Learned Counsel further contended that the investigation officer was not produced before the learned trial court. The trial court while recording conviction of the appellants has held that in spite of the best efforts the presence of the investigation officer could not be procured. Perusal of the trial court records reveals that charge was, framed on 19.6.2000 and ten witnesses were examined, but inspite of the best efforts, the investigating officer could not be produced by the prosecution before the court. The order sheet dated 14.8.2002 reveals that when the investigating officer was not in attendance to give evidence in court, a letter was sent to the Superintendent of Police directing him to present the investigating officer on the date fixed. Thereafter, two dates were fixed, but the investigating officer did not turn up. Then again on 18.8.2002, the trial court has recorded that a wireless message was also sent, but the investigating officer did not come inspite of the wireless message to give evidence. He issued a letter to the DGP, Ranchi to take necessary steps for appearance of the investigating officer and a peremptory order was passed that if he did not appear before the court, the prosecution evidence would be closed. Ultimately on 12.9.2002, the case was closed as the I.O. did not appear on the date fixed. Thus, the trial court made all efforts to procure the attendance of the investigating officer. PW 4 Sila Tudu has also stated in her cross examination that she gave application on 6.10.2002 against the investigating officer that he was recording incorrect version of the statements of the witnesses and this fact is un-rebutted. It has also revealed from, the record that the investigating officer was prejudiced with the complainant. In the case of State of Karnataka v. Bhaskar Kushali Kotharkar 2004 (2) SCC Cri 1963, it has been observed as under in paragraph 6 of the judgment of the apex court:
In the instant case, the Sessions Judge issued summons to these two witnesses but these police officers did not turn up for giving evidence and the Sessions Judge closed the prosecution case as one of the accused had been in prison as an under trial for a fairly long period. The counsel for Respondents 1 to 4 though contended that they were seriously prejudiced by the non-examination of the investigating officer, the plea could not be substantiated by cogent facts and circumstances. It is true that as a part of fair trail the investigating officer should be examined in the trial cases, specially when a serious sessions trail was being held against the accused. If any one of the prosecution witnesses give any evidence contrary to their statement recorded u/s 161 Cr.P.C. or if there is any omission of any certain material particulars, the previous statement of these witnesses could be proved only by examining the investigating officer who must have recorded the statement of these witnesses u/s 161 Cr.P.C. In the present case, no such serious contradiction is pointed out in respect of the evidence of the important eyewitnesses PW 1, PW 2 and PW 10. So also the non-examination of the Head Constable who recorded F1 statement is not of serious consequence as PW 1 was examined to prove the fact that she had given the statement before the police. The learned Single Judge was not justified in reversing the order of the Sessions Court by holding that the non-examination of the investigating officer and the constable who recorded the F1 statement had caused prejudice to the accused
16. We have also gone through he entire evidence and there is no contradiction put to the witnesses recorded u/s 161 Cr.P.C. Thus, it cannot be said that the appellants have been prejudiced by non production of the investigating officer. The Supreme Court in the case reported in the case of
It, however appears to us that the entire case diary should not have been allowed to be exhibited by the learned additional sessions judge. In the facts of the case, it appears to us that the involvement of the accused in committing the murder has been clearly established by the evidences of the eyewitnesses. Such evidences are in conformity with the case made out in FIR and also with the medical evidence. Hence, for non-examination of investigating officer, the prosecution case should not fail. We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal strait jacket formula should be laid down that non-examination of Investigating Officer per se vitiates a criminal trial. These appeals therefore fail and are dismissed. The appellants who have been released on bail should be taken into custody to serve out the sentence.
Thus, we do not find any that prejudice has been caused to the defence. As such the contention raised on behalf of the appellants has no force.
17. Learned Counsel for the appellants further contended that there was an inordinate delay in lodging the FIR; there was also delay in forwarding the FIR to the Magistrate concerned as it was received by the Magistrate very late; the delay has not been properly explained by the prosecution. The FIR has been recorded much later than what has been shown in the document and as such the genesis of the prosecution case is belied and cannot be relied upon to record conviction of the appellants. Learned Counsel for the State refuted the contention.
18. From perusal of the records, it is revealed that the incident took place on 20.8.1999 at about 7.00 p.m. whereas the FIR has been lodged by the informant on 21.8.1999 at about 10.00 a.m. From perusal of the FIR it is also revealed that the investigating officer reached at the spot in the morning at about 6.30 a.m. and he recorded the fard beyan of PW 4 Sila Tudu, the wife of the deceased at the spot. After recording the said Fard beyan, formal FIR was recorded by the police at about 10.00 a.m. in the morning. The incident occurred in the evening at about 7.00 p.m. on 20.8.1999 and the distance of the Police Station from the place of occurrence, as indicated in the FIR, is about 12 kms. It has not been disputed that the distance shown in the FIR is not correct. It also transpires from the materials on record and the evidence of the witnesses that Sila Tudu PW 4 the wife of the deceased, and her sister-in-law, Nanad (PW 3) were present in the house of the deceased. It also transpires from the record that no male member was available in the house. The learned Counsel tried to point out that information with regard to the occurrence would have been given in the night itself either by the informant or through any other person. The prosecution has not explained the delay in lodging the FIR on the next day of the occurrence. It is a settled position of law that delay can be explained by the prosecution either from oral testimony of the witness or he can place circumstances on the basis of which it can be concluded that the delay in lodging the FIR has been properly explained. PW 4 Sila Tudu had been cross examined at length. In para 16 of her cross examination she has explained the delay by saying that she went to the Police Station in the night to inform the police about the occurrence. Her statement was not recorded at the Police Station. The police personnel came at the spot with her. Thus, the delay has been properly explained by the above evidence. Learned Counsel tried to point out that this fact is an afterthought and she has not stated this fact in her fard beyan as well as in her re-statement u/s 161 of the Code of Criminal Procedure. It is pertinent to mention here that the said omission had not been put to the PW 4 to explain as to why it had not been written in the FIR or in her statement recorded u/s 161 Cr.P.C. If such opportunity has not been given the said contradiction or omission cannot be taken into account as we pointed out the proposition of law on this point in the preceding paragraphs.
19. Apart from that, it is a settled position of law that FIR is not an encyclopaedia in which all the details should be mentioned. If the genesis of the incident has been mentioned in the FIR, it is sufficient. FIR is lodged only to give motion to the investigation. The informant has to give a summary of the incident in the FIR. Apart from that also, in cross examination, the delay has been properly explained. It is also evident from the record that after the night was over, the Police reached at the spot immediately and got the fard beyan recorded. In these circumstances, we do not conclude that there was any delay in lodging the FIR. So far as the delay in forwarding the FIR to the Magistrate is concerned, it is revealed from the FIR that the said report was received by the concerned Magistrate on 23.8.1999, two days after recording of the FIR. The signature of the Magistrate is on the report. It is a settled position of law that there cannot be any manner of doubt that Section 157 of the Code of Criminal Procedure requires sending of the FIR to the Magistrate forthwith. The purpose of sending the report immediately to the Magistrate is really designed to keep the Magistrate informed of the investigation of a cognizable offence so as to be able to supervise the investigation and if necessary, to give proper direction u/s 159 of the Code of Criminal Procedure. It is also a settled position of law that a lacuna on the part of the prosecution would not be the sole basis for throwing out the entire prosecution case being fabricated, if the prosecution has produced reliable evidence to prove the guilt of the accused person. As we have pointed out in the preceding paragraph, the evidence of PWs 3 and 4 is cogent and credible. In this view of the matter, the mere fact of 11.30 hours'' delay after incident has no relevance or significance. After recording the FIR, the inquest report reveals that the case u/s 302 IPc was registered. The above proposition of law has been laid down by the Apex Court in the case of
16. The matter can be viewed from another angle also. It has already been found by us that the prosecution case that the FIR was promptly lodged at or about 1.30 a.m. and that the investigation started on the basis thereof is wholly reliable and acceptable. Judged in the context of the above facts the mere delay in dispatch of the FIR - and for that matter in receipt thereof by the Magistrate - would not make the prosecution case suspect for as has been pointed out by a three - Judge Bench of this Court in Pala Singh v. State of Punjab, the relevant provision contained in Section 157 Cr.P.C. regarding forthwith dispatch of the report (FIR) is really designed to kept the Magistrate informed of the investigation of a cognizable offence so as to be able to control the investigation and if necessary to give proper direction u/s 159 Cr.P.C. and therefore if in a given case it is found that FIR was recorded without delay and the investigation started on that FIR then however improper or objectionable the delayed receipt of the report by the Magistrate concerned, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution unsupportable.
20. The Apex Court again reiterated the same view in the case of Munshi Prasad v. State of Bihar reported in 2002 SCC (Cri.) 175 wherein at para 13 it held as under:
13. In support of the appeal, a further submission has been made pertaining to the first information report (FIR). On this score the appellants contended that delayed receipt of the FIR in the Court of the Chief judicial Magistrate cannot but be viewed with suspicion. While it is true that Section 157 of the Code makes it obligatory on the officer in charge of the police station to send a report of the information received to a Magistrate forthwith, but that does not mean and imply to denounce and discard an otherwise positive and trustworthy evidence on record. Technicality ought not to outweigh the course of justice - if the court is otherwise convinced and has come to a conclusion as regards the truthfulness of the prosecution case, mere delay, which can otherwise be ascribed to be reasonable, would not by itself demolish the prosecution case. The decision of this Court in Shiv Ram v. State of U.P. lends support to the observation as above.
In the case of
19. There cannot be any manner of doubt that Section 157 of the Criminal Procedure Code requires sending of an FIR to the Magistrate forthwith which reaches promptly and without undue delay. The reason is obvious to avoid any possibility of improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. At the same time, this lacuna on the part of the, prosecution would not be the sole basis for throwing out the entire prosecution case being fabricated "if the prosecution had produced the reliable evidence to prove the guilt of the accused persons. The provisions of Section 157 Cr.P.C. are for the purpose of having a fair trial without there being any chance of fabrication or introduction of the fact at the subsequent stage of investigation. The cases cited by the learned Counsel for the appellants do not lay down any law that simply because there is a delay in lodging the FIR or sending it to the Magistrate forthwith, the entire case of the prosecution has to be discarded. The decisions rendered by this Court and relied upon by the learned Counsel for the appellant would only show that this will be a material circumstance which will be taken into consideration while appreciating the evidence on record.
21. On consideration of the submissions of the learned, counsel for the parties and perusal of the aforesaid propositions of law, we are of the view that the delay in sending the FIR to the Magistrate concerned is not fatal to the prosecution case. Therefore, the contention raised on behalf of the appellants in this context has no force.
22. Learned Counsel further contended that PW 3 Sabitri Marandi is the sister of the deceased and PW 4 Sila Tudu, the informant is the wife of the deceased and they were related to the deceased so closely that they did not bother to remain present at the place where the dead body was lying; there is no evidence that they remained present there. It is also in the evidence that they came to their house and the conduct of the witness is unnatural. Human conduct of every individual differs from man to man. When some incident occurs, he is taken by surprise and some of the persons who remain present there try to help the injured or the deceased and they start taking care of the deceased. Some of the individuals flee from the spot because they do no dare to see the incident and leave the place of occurrence immediately at the time of occurrence or after the occurrence and some of the persons even though present at the place of the occurrence, they are stunned and become puzzled. Merely because these two eye witnesses who happened to be ladies, they were in a hurry to reach at home and to inform the Police and to make necessary arrangements. It is not in evidence that the villagers had offered to remain at the spot. It was 7.00 p.m. and two ladies were there; none could live alone and they were helping each other; so they were going together. Thus we cannot conclude that both the witnesses acted in an unnatural manner. It is also well settled that merely because of the evidence of the eye witnesses, that they acted in unnatural manner, that per se would not be a determinative factor to throw out the otherwise cogent prosecution evidence. We have gone through the entire evidence and we are completely in agreement with the findings of the trial court that the evidence of PW 3 Sabirri Marandi and PW 4 Sila Tudu is cogent, credible, trust-worthy and cannot be thrown out.
23. In the case of
10... Merely because the evidence of PW 2 shows that he acted in an unnatural manner, that per se would not be a determinative factor to throw out the otherwise cogent prosecution evidence. The High Court on the other hand has considered in great detail the evidence of the witnesses. It has come to a positive finding that PW 1 was in a position to identify the accused persons. Some of the pleas now advanced were also not taken up before the courts below, for example, non examination of the pellets/wads by the Forensic Science Laboratory. On considering the evidence on record, pragmatically one thing is clear that the High Court after analyzing the evidence in great detail, was justified in treating the trial court''s judgment to be practically unreasoned.
No other submission was advanced by the learned Counsel for the appellants.
24We have carefully, gone through the entire evidence of the case and, in our view, no error has been committed by the trial court in appreciating the evidence of the prosecution witnesses. On conspicuous consideration of the material evidence on record, we find that the mode and manner of the incident as projected by the prosecution has been established beyond all shadow of doubts. Thus, we are in complete agreement with the findings of the trial court. We do not find any fault with the appreciation of the evidence by the trial court which has rightly recorded the order of conviction of the appellants.
For the aforesaid reasons, this appeal is devoid of merits and, accordingly, the appeal is dismissed.
