Bandhu alias Bondhu Harijan vs State

K.C. Bhargava, J.—All these appeals arise out of the same judgment and order dated 18.10.84 passed by the Sessions Judge, Gonda convicting all the Appellants, named above, u/s 302 read with Section 34, I.P.C. and sentencing them to imprisonment for life. Hence all the appeals are being disposed of together by a common judgment.

The prosecution case, stated in brief, is that the incident happened in the night of 23/24.1.84 at 2 a.m. in which Salaruddin was done to death. The F.I.R of this incident was lodged at 4.30 a.m. on 24.2.84. It is further alleged that Kaley Khan''s descendants were Chhedi Khan and Salaruddin Khan. In the village there were two factions which stood opposed to each other. It is said that the deceased Salaruddin Khan had contested the election of Pradhan and won the same. Chhedi Khan had lost that election. Thus there was election enmity between the two. On the instigation of Chhedi Khan, the villagers made a complaint against Salaruddin Khan deceased, who was elected as Pradhan, on account of which, S.D.M., Utraula suspended Salaruddin Khan, but that suspension order was stayed by the Commissioner.

In the night of 23/24.1.84 Salaruddin Khan was sleeping in his Biathka. Along with the side of Salaruddin Khan, his brother-in-law Rahimulla Khan was also sleeping. All the accused persons came there variously armed, namely, Ejaz Mustafa with pick-axe while Bandhu, Nizam and Goley alias Haider All were holding knives. They attacked the deceased in a sleeping condition. A lantern was burning at that place. When the complainant Rahimullah Khan saw this attack, he raised hue and cry, on which villagers, namely, Mohd. Aslam Khan, P.W. 5, Shabbir Ahmad Khan P.W. 4 and others came on the spot along with torches. The accused-Appellants ran away towards north eastern side and could not be apprehended. On account of the injuries, the condition of Salaruddin Khan became critical and he was put in a cart and was taken to P.H.C., Utraula, where he died. According to the complainant, this murder has been committed on account of enmity which existed as narrated above.

Habibur Rahman, P.W. 3 scribed the report on the dictation of Rahimulla Khan, complainant and the same was lodged at the police station. At the time of lodging of the report, Jata Shanker Singh, P.W. 7, was present at the police station. He started investigation and went to P.H.C., Utraula, where he found the dead body of Salaruddin Khan kept on the verandah. He enquired from Dr. L.R. Qurreshi, who told him that Salaruddin Khan has died and was brought to the hospital at 3.45 a.m. The inquest proceedings could not be started by the Investigating Officer as the light went away and when it came at 6.48 a.m., he prepared Photo-lash, challan-lash and other relevant papers etc., Exts. Ka. 5 to Ka-9. After completing investigation, he submitted charge-sheet, Ext. Ka-28, against the accused Appellants.

Post-mortem examination of the deceased was conducted by Dr. M.N. Singh P.W. 2 at 3.40 p.m. on 24.1.84. At that time, the deceased was aged about 40 years and had died half day before. He found the following ante-mortem injuries on his person:

Incised wound 7 cm. x 0.3 cm. obliquely on scalp, anterior end being 4 cm. above middle of right eye brow. Posterior end bone deep in length of 2.5 cm. and anterior end, bone deep 1.5 cm. middle part, skin deep, depth gradually increasing and decreasing.

2 Incised wound 9 cm. x 2 cm. x bone deep on forehead obliquely on right side, upper end, 3 cm. above middle of right eye-brow going obliquely to middle of nose on other side. On upper end brain matter visible from wound and in lower part, bone of nose cut.

3 Incised wound 2 cm. x 0.5 cm. x muscle deep on nose vertically 0.5 cm. above tip of nose.

4 Lacerated wound 2 cm. x 0.5 cm. x muscle deep on forehead, Just above medial end of left eye brow.

5 Incised wound 4.5 cm. x 0.4 cm. x bone deep on forehead obliquely placed 2 cm. above middle of right eye-brow.

6 Incised wound 1 cm. x 0.20 cm. on belix through and through 2 cm. above tragus on right pinna.

Incised wound 2 cm. x 0.5 cm. x muscle deep spindle-shaped, oblique on right side face 1 cm. away, right angle of mouth.

Incised wound 1.5 cm. x 0.5 cm. x cavity deep on right side chest spindle-shaped 7 cm. above right nipple at 1 o''clock position. Incised wound in upper aspect of right leg 1 cm. x 0.1 cm. x 1 cm.

Incised wound 3 cm. x 0.5 cm. x cavity deep spindle-shaped horizontal 1 cm. above right nipple. Incised wound in leg 2 cm. x 0.2 cm. x through and through, exit being 0.5 cm. x 0.1 cm. on inner border of leg.

Three abrasions 0.5 cm. x 0.5 cm., 0.4 cm. x 0.4 cm., 0.3 cm. x 0.3 cm. placed, 0.3 cm. and 1 cm. apart vertically on dorsal aspect of right middle finger at its knuckle and distal to it.

Abrasion 0.5 cm. x 0.4 cm. on middle of right ring finger on its dorsal aspect.

Incised wound 4.5 cm. x 1 cm. x bone deep on inner aspect of left forearm horizontal, underlying ulna bone cut, placed 5.5. cm. above left wrist.

Incised wound 5 cm. x 2 cm. on inner aspect of left wrist bone deep exposing lower end of left ulna, horizontally placed.

Incised wound 3.5 cm. x 0.5 cm. x bone deep, cutting underlying bone at knuckle of left middle finger, obliquely placed.

Incised wound 3 cm. x 0.3 cm. x bone deep, cutting underlying bone on dorsal aspect of middle phalanx of left ring finger, obliquely placed.

Incised wound 8.0 cm. x 1.5 cm. x bone deep cutting underlying bone obliquely placed on left leg Just below left patella.

Incised wound 4 cm. x 0.5 cm. x muscle deep vertically on outer aspect of left leg wity linear abrasion from its lower end of 12 cm. length placed 10 cm. above left outer malleolus (lower end of wound).

Incised wound 8.5 cm. x 1 cm. x muscle deep, spindle-shaped on outer aspect of left leg 3.5 cm. above outer malleolus, vertically placed.

Incised wound 5 cm. x 0.5 cm. x bone deep on anterior aspect of left legs spindle-shaped with lower linear abrasion prolongation, obliquely reaching foot 5 cm. anterior to left outer malleolus, length 17 cms.

Incised wound 3 cm. x 0.5 cm. x muscle deep, spindle-shaped on anterior aspect of left leg, 2.5 cm. above left inner malleolus, vertically placed.

Abraded contusion horizontally placed 8 cm. x 1 cm. on outer and posterior aspect of left thigh, 28 cm. above left knee.

Incised wound 10 cm. x 3 cm. x muscle deep obliquely placed, spindle-shaped on posterior aspect of left thigh 11 cm. above left knee.

Abraded contusion 7 cm. x 1 cm. horizontally on inner aspect of right thigh 4 cm. above left knee.

Incised wound 5 cm. x 1.5 cm. x muscle deep on inner aspect of right leg vertically placed 17 cm. above right inner malleolus with upper prolongation of abraded contusion 4 cm. x 2 cm.

Incised wound 5 cm. x 1 cm. x bone deep on anterior aspect of right leg oblique 13 cm. below right knee.

Triangular incised wound 7 cm. x 4 cm. x bone deep, chipping off bone on anterior aspect of right leg at the Junction of foot and leg.

Incised wound 4 cm. x 2 cm. x muscle deep on right foot placed 2 cm. anterior to right outer malleolus.

In the opinion of the doctor, the deceased died due to haemorrhage and shock on account of above ante-mortem injuries.

The prosecution examined Rahimullah Khan, P.W. 1 (eye-witness). Dr. M.N. Singh, P.W. 2 (who conducted the post-mortem examination), Habibur Rahman, P.W. 3 (scribe of the written report), Shabbir Ahmad P.W. 4, (eyewitness), Mohd. Aslam Khan, P.W. 5, (eye-witness), Smt. Fatima Begum, P.W.6, (wife of the deceased), Jata Shanker Singh, P.W. 7 (Investigating Officer), Head Constable Ram Saran Yadav, P.W. 8 (who prepared the chick report Ext. Ka. 1) and Dr. L.R. Qurreshi, P.W. 9 (who had declared Salaruddin Khan dead when he was brought to the P.H.C.).

The accused persons pleaded not guilty and claimed to be tried. They examined Chaudhary, D.W. 1 Piyare, D.W. 2. and Smt. Mufidun Nisan, D.W. 3 in their defence.

The learned Sessions Judge after considering the entire evidence on record, convicted and sentenced the accused-Appellant as above.

We have heard learned Counsel for the Appellants as well as Additional Government Advocate and have also perused the paper-books and original file of the Sessions trial.

Learned Counsel for the Appellants have first attacked the F.I.R. According to the, F.I.R. was not in existence at the time it is alleged to have been written. According to them, this F.I.R. was lodged after the post-mortem examination report was received. In order to substantiate this contention, learned Counsel for the Appellants have placed certain facts before us. According to them, the inquest report was completed at 9.08 a.m. on 24.1.84 vide Ext. Ka. 5. They have further argued that the dead body was despatched by the Investigating Officer for mortuary on the same day at 8 a.m. According to them, how it was possible that the dead body would have been despatched for post-mortem examination till the inquest report was completed.

From the perusal of the original file, it is clear that inquest proceedings of the dead body were started at 4.30 a.m. on 24.2.84 which continued for some time and were completed by 9.08 a.m. on the same day. This fact is apparent from bare perusal of the inquest report. It is also a fact that challan-lash, Ext. Ka. 7, shows that the dead body was despatched for mortuary at 8 a.m. If the dead body was despatched at 8 a.m., then how inquest proceedings continued to be conducted up to 9.08 a.m. It shows that the entries made in the inquest report are not correct. The inquest proceedings could not have continued after the dead body was despatched. The inquest report relates to the dead body and the details of injuries, etc. are observed by the Investigating Officer and the Panches present there also sign the same and then only, the inquest report is prepared filling all the columns in it. Thereafter, the dead body is kept in sealed cover and then only, it is forwarded to the mortuary along with necessary papers. Thus, the evidence on record clearly goes to show that the inquest report could not have continued beyond 8 a.m. when the dead body was despatched. Learned Counsel for the Appellants have argued that this fact alone is sufficient to say that the F.I.R. is ante-timed even though there are other factors to show that the F.I.R. was ante-timed.

Learned Additional Government Advocate has argued that the statements contained in Panchayatnama and challan-lash cannot be read in evidence because the discrepancy occurring in the documents have not been put to the Investigating Officer by the Appellants. No doubt, it is true that these discrepancies which occurred in these two documents were not put to the Investigating Officer when he was in the witness-box. But as a matter of fact, these discrepancies were to be got explained by the prosecution from the Investigating Officer. It is not the duty of the defence to fill in lacuna in the prosecution evidence. The prosecution should have explained under what circumstances these facts were incorporated in these documents. The prosecution has not tried to get explained these facts from the Investigating Officer. Therefore, now it does not lie in the mouth of the learned Additional Government Advocate to say that it was the duty of the defence to have got this matter explained and as this matter has not been got explained, these discrepancies cannot be relied upon by the defence. In support of this contention, learned Additional Government Advocate has placed reliance on the case of Kunu Ambu Vish v. State of Maharashtra 1971 SCC 211. He has relied upon the observations made by the Apex Court in Para 10, which reads as under:

It may be pointed out that any statement made in the panchnama cannot be used in evidence except for the purposes of contradicting the witness whose statement is contained in the Panchnama, but if it is intended to contradict him by the writing, his attention must before the writing can be proved, be called to those parts of it which are to be used for contradicting him. This is what is required u/s 145 of the Evidence Act but even where a witness is confronted by his previous statement and given an opportunity to explain that part of the statement that is put to him, does not constitute substantive evidence.

The next case relied upon by the State counsel is Malkiyat Singh and Ors. v. State of Punjab 1991 SCC 976. In this case reliance has been placed on the observations made by the Supreme Court in Para 11, which are to the following effect:

Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the court uses it for the purpose of contradicting such witness, by operation of Section 161 of the Code and Section 145 of the Evidence Act, it shall be used for the purpose of contradicting witness, i.e., Investigating Officer or to explain it in reexamination by the prosecution, with permission of the court. It is, therefore, clear that unless the Investigating Officer or the court uses it either to refresh the memory or contradicting the Investigating Officer as previous statement u/s 161 that too after drawing his attention thereto as is enjoined u/s 145 of the Evidence Act, the entries cannot be used by the accused as evidence ...Therefore, the free use thereof for contradicting the prosecution evidence is obviously illegal and it is inadmissible in evidence.

In the latter case, there was statement recorded in the panchnama. That statement was not put to the witnesses. In the first case, there was some statement in the panchnama which contradicted the evidence of panches and the complainant, but they were not put to them, as such the Hon''ble Supreme Court held that no notice can be taken of these contradictions. In the present case, there is no statement of any witness on the challan-lash or Chitthi Majroobi, which required to be put up to a witness. Therefore, these cases will not apply to the facts of the present case. In the second case, it was held that unless the Investigating Officer or the court uses it either to refresh the memory or contradicting the Investigating Officer, his previous statement, then his attention should be drawn to such statement and if that is not done, then such entries in the case diary cannot be relied upon.

It is settled law that the entries of the case diary can only be used for contradicting the prosecution witnesses. They cannot be relied upon by the prosecution as substantive evidence. Therefore, if the entries of the case diary are not put to a witness whose statement is sought to be contradicted, then those entries of the case diary cannot be relied upon by the prosecution against the accused persons. Thus, we find that the law laid down in the latter case is not applicable in the present case, because in the present case there is no statement of witness on these two documents.

The next contention of the learned Counsel for the Appellants is that other witnesses Rahimulla Khan, P.W. 1, and Habibur Rahman Khan, P.W. 3, went along with the dead body when it was sent for mortuary. They left in the morning at about 8 a.m. as will be apparent from the Chitthi Majroobi. Both these witnesses have stated that they had left the dead body with the constables who had taken the dead body and they reached village Cheeti in Utraula at about 8.30 p.m.

Thus, it is clear that these witnesses had left the police station Utraula at about 8 a.m. and they were not present in the village. But we find that both Rahimulla and Habibur Rahman are the witnesses of Fard of clothes of the deceased Ext. Ka. 10, witnesses of Fard of torches and lantern Ext. Ka. 11, and witnesses of Fard of recovery of blood Ext. Ka. 13. All these documents were prepared after the inquest report had been completed and the dead body was sent for mortuary. If these two witnesses had left with the dead body, then how all these papers could have been prepared and signed by these witnesses. This is a material contradiction in the prosecution evidence. No explanation has been given by the prosecution as to how these witnesses came to be present at the time of preparation of these documents when they had already left Utraula at 8 a.m. along with the dead body.

A duty was cast on the prosecution to explain these facts. But as the prosecution has failed to explain these facts, it can safely be said that these documents were not prepared at the time alleged to have been prepared, but were prepared at some other time. These facts also show that the F.I.R. was not lodged at the time alleged by the prosecution. The Hon''ble Supreme Court in the case of Maharaj Singh v. State of U.P. 1994 SCC 1390, in Para 12 has observed as under:

F.I.R. 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 F.I.R. is to obtain the earliest information regarding the circumstances 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 eye-witnesses, if any. Delay in lodging the F.I.R often results in embellishment, which is a creature of an afterthought. On account of delay, the F.I.R. 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 F.I.R. 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 F.I.R., 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 F.I.R. 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 despatching or receipt of the copy of the F.I.R. 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 F.I.R. along with the dead body and its reference in the inquest report. Even though the inquest report, prepared u/s 174, Code of Criminal Procedure, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the F.I.R. 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 F.I.R. 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 F.I.R. In our opinion, on account of the infirmities as notice above, the F.I.R 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 P.W. 8.

Thus, from the perusal of this case, it is clear that in order to have a check on the F.I.R., the Court has to see other factors, which appear during the course of evidence in order to Judge as to whether the F.I.R. has been lodged at the time alleged to have been lodged by the prosecution. If the Court finds that there is evidence on record to indicate that F.I.R. could not have been lodged at the time alleged by the prosecution, then the Court has to see whether the F.I.R is a genuine document or not.

As seen in the present case, the challan-lash shows that the dead body was despatched for mortuary at 8 a.m. on 24.1.84 while according to the inquest report, it was completed at 9.08 a.m. When the inquest report was completed at 9.08 a.m., how the dead body could be sent for mortuary at 8 a.m. before completion of the inquest report. Other evidence has also come on record about the preparation of Fards which bear the signatures of Rahimulla, P.W. 1, and Habibur Rahman, P.W. 3. These papers were admittedly, prepared after completion of the inquest report. According to both these witnesses, they had left with the dead body at 8 a.m. along with constables.

Thus, the presence of these two witnesses at the place where these Fards were prepared, is not proved from the record. This shows that the F.I.R. came into existence at some later time and may have come into existence after receipt of the post-mortem report as suggested by the defence. When the F.I.R. goes off the record, there remains nothing. Even the foundation of prosecution case is shattered if the F.I.R. was not in existence at the time alleged by the prosecution. It is also in evidence that no report of cognizable offence was recorded in the general diary within next twenty four hours of this incident. This also shows possibility that the F.I.R. of the present occurrence could have been lodged after arrival of the post-mortem report.

Learned Counsel for the Appellants has argued that copy of F.I.R. was not sent to the doctor along with other papers which were sent with the dead body. The Investigating Officer Jata Shanker Singh, P.W. 7, has not stated in his examination-in-chief that he had sent the copy of F.I.R. also along with other papers with the dead body. He was cross-examined on this point and stated that he had sent the F.I.R. along with other documents with the dead body. Had this been a fact, copy of F.I.R would have certainly been sent to the doctor along with the dead body.

Learned Counsel for the Appellants have further argued that the statements of, P.W. 1, Rahimullah and P.W. 3, Habibur Rahman were not recorded at the police station by the Investigating Officer on 24.1.84 when they were present thereafter lodging of the report. Jata Shanker Singh, P.W. 7, has stated in Para 5 that at the place of occurrence, he asked Rahimullah for recording his statement, but he disclosed his inability on account of death of Salaruddin and on account of tiredness. In Para 2 he has stated that some witnesses stated that at the police station Rahimullah was also present along with other persons. He was weeping and had gone along with the dead body to Gonda and on account of the fact that he remained busy in other work, his statements could not be recorded. The reason disclosed by the Investigating Officer for not recording the statement of these two witnesses at the police station soon after lodging of the F.I.R. creates doubt in the prosecution story. This unusal attitude of the Investigating Officer shows that the F.I.R. was not in existence at that time and he recorded the statement only after the F.I.R. came into existence after receipt of the post-mortem report. The reasons given by the Investigating Officer for not recording the statements of these two witnesses are not acceptable. Habibur Rahman, P.W. 3, in Para 10 of his statement stated that the Investigating Officer had not asked them to give statements. This statement of this witness disproves the statement given by the Investigating Officer and the explanation put forward by him for not recording the statements soon after lodging of the report is also not plausible. The statement of this witness discloses the real story behind the conduct of the Investigating Officer in not recording the statement of these two witnesses at the police station.

It has further been argued by the learned Counsel for the Appellants that some of the injuries have been caused by blunt weapon, but there was no lathi with any of the accused persons per the case disclosed by the prosecution. According to Dr. M.N. Singh, P.W. 2, injuries Nos. 4, 10, 11, 21 and 23 could have been caused by butt of Kulhari. He has further stated that lacerated wounds and abrasions could be caused by lathi.

Thus from the statement of the doctor and perusal of the post-mortem report, we find that there are certain lacerated wounds and abrasions and they could not have been caused by pick-axe and knives if they were used in the normal manner. It has come in the statement of the doctor that some of the injuries could have been caused by butt of the pick-axe. It has not been the case of the prosecution either in the F.I.R. or in the statements of the witnesses that pick-axe was used from the backside (butt) causing lacerated wounds. Had, this been the case of the prosecution from the very beginning, then reliance could have been placed on this statement. But it appears now that this statement has been changed in order to explain the injuries of the deceased which are lacerated and abraisons in nature. When this is not the case of the prosecution from the very beginning, no reliance can be placed on this statement, which can at the most be called an afterthought. The necessity of giving this statement arose to explain the lacerated wounds and abrasions mentioned in the post-mortem report. No other explanation is forthcoming from the prosecution side to show how these injuries could have been caused on the person of the deceased. Therefore, this evidence also goes against the prosecution.

Thus, we find in view of the aforesaid discussions that the prosecution has utterly failed to prove its case that the Appellants had committed the murder of Salaruddin Khan. The findings of the learned Sessions Judge to the contrary, are not correct and they are liable to be set aside.

All the appeals are allowed. The Appellants are not found guilty of the offence punishable u/s 302 read with Section 34, I.P.C. and they are acquitted of the same. They are on bail. They need not to surrender. Their bail-bonds are cancelled and sureties discharged.