Gurdev Singh and others vs The State

Khanna, J.—This is an appeal by Gurdev Singh aged 28 years, Baldev Singh aged 19 years and Ghamdur Singh aged between 14 and 15 years, who have been convicted by learned Sessions Judge, Bhatinda, u/s 302 read with Section 34, Indian Penal Code, for causing the death of Mara Singh alaias Maru, and have been sentenced to undergo imprisonment lor hie. Ghamdur Singh, in view of his age, has teen ordered instead of undergoing his sentence to be retained in the Reformatory School till such time as he attains the age of 18 years as provided in Rule 3 of the rules framed u/s 8(3)(b) of the Reformatory Schools Act, 1897. Gurdev Singh and Baldev Singh are brothers while Ghamdur Singh is the son of Sant Singh, brother of the other two accused.

The prosecution case is that the houses of Mara Singh deceased and his brother Niranjan Singh P. W. adjoin each other in village Dhinger and have a joint deorhi. On the 26th September, 1961, at about sunset time Niranjan Singh and Dalip Kaur, wife of Mara Singh deceased, were present in their houses. 1 hey heard alarm from the side of the deorhi and came out of the deorhi and saw Baldev Singh as accused armed with a khunaa and Mara Singh deceased armed with a dang abusing each other in front of the deorhi The deceased as well as Baldev Singh were under influence of liquor at that tune. Niranjan Singh and Dalip Kaur asked them not to abuse each other. Just then Gurdev Singh and Ghamdur Singh accused came there from the side of the house of Ghamdur Singh accused, which is at a distance of about 16 karams from that place. Both Gurdev Singh and Ghamdur Singh were armed with barchhas. Gurdev Singh gave a barchha blow on the left thigh of Mara Singh, who then fell down on the ground. Ghamdur Singh then gave a barchha blow to Mara Singh while the latter was lying on the ground on his back. Mara Singh then started rolling on the ground whereupon Baldev Singh accused gave two khunda blows to the deceased on his elbow and right leg. The three accused then ran away. Niranjan Singh then went and informed Bhag Singh gun licensee and Pritam Singh Sarpanch about the occurrence. The aforesaid two persons then came with Niranjan Singh to the spot but by the time of their arrival Mara Singh had died. Niranjan Singh accompanied by Bhag Singh and Pritam Sinhg then went in a folly to Police Station Mansa at a distance of 14 miles from the place of occurrence and lodged report (Exhibit P. A.) at 12-15 a.m. Assistant Sub-Inspector Inder Singh, who recorded the first information report, then came with Niranjan Singh and his companions to the place of occurrence and arrived there at 4 a.m. The Assistant Sub-Inspector then took into possession blood stained earth from the place of occurrence and made it into a sealed parcel. He also prepared the inquest report. The three accused were produced before the Assistant Sub-Inspector on the 28th September, 1961, at 10 a.m. and were immediately put under arrest. Ghamdur Singh then stated that his barchha was lying in his house and he could produce the same. Thereafter Ghamdur Singh produced bloodstained barchha (Exhibit P. 2) from underneath the charpoy from his house. It was made into a sealed parcel, Gurdev Singh and Baldev Singh accused then stated that they bad kept their barchha and khunda respectively in their houses. Gurdev Singh thereafter produced barchha (Exhibit P. 3) from a heap of fodder inside his house. It was bloodstained and was made into a sealed parcel. Baldev Singh produced khunda (Exhibit P. 1) from the verandah of his house.

Post mortem examination of the dead body of Mara Singh deceased was performed by Dr. Didar Singh at Mansa on the 27th September, 1961, at 1 p.m. The doctor found three cut wounds on the left thigh, right leg and the right side of the chest besides an abrasion. The cut wounds on the left thigh and the right leg resulted in simple injuries while the cut wound on the right side of the chest was found on dissection to have cut the eighth rib, pleura lung tissues, diaphragm and to have entered into the substance of the liver. The depth of the wound was seven inches. This injury was sufficient to cause death in ordinary course of nature.

At the trial, Niranjan Singh (P. W. 2) and Dalip Kaur (P. W. 3) gave eye-witness accunt of the occurrence and supported the prosecution case. Pritam Singh (P. W. 5) and Bhag Singh (P. W. 6) deposed about their having been told about the occurrence by Niranjan Singh P. W.

The three accused denied the prosecution allegations about their having caused injuries to the deceased. They also denied the different recoveries alleged to have been made from them. No evidence was produced in defence.

The learned Sessions Judge accepted the prosecution evidence and convicted and sentenced the accused as above.

We have heard Mr. Bindra on behalf of the Appellants and Mr. Jagga on behalf of the State and we have also been taken through the entire material on record and have come to the conclusion that the prosecution has not been able to bring the guilt home to the accused and that in any case the case against them is not free from reasonable doubt. The prosecution in order to prove the guilt of the accused has relied primarily upon the evidence of the two eye-witnesses Niranjan Singh (P. W. 2) and Dalip Kaur (P. W. 3), who are the brother and wife respectively of Mara Singh deceased. According to the evidence of both these witnesses, on hearing alarm they came out into their joint deorhi and saw the three accused causing injuries to the deceased in the lane in front of their house. The suggestion put in cross examination about the occurrence was to the effect that it took place in front of the flourgrinding mill of one Hansa at a late hour and that the dead body of the deceased was then brought on a cot in front of his house. It was also suggested that Niranjann Singh and Dalip Kaur had not witnessed the occurrence and that Dalip Kaur was on the night of the occurrence away to her parent''s house in village Gailevalla and came from that place on the following day along with her uncle Puran Singh, Sarpanch of that village. It is in the evidence of Niranjan Singh that he went to the police station to lodge a report in the trolly of a tractor. The police station being at a distance of 14 miles from the place of occurrence it could not have taken Niranjan Singh more than an hour to reach the police station. The fact that the hour of making the report is mentioned as 12-15 a.m. lends colour to the argument of Mr. Bindra that the occurrence in fact took place not at the hour as alleged by the prosecution but sometime later. It is significant to observe that there is nothing on the record to indicate that there intervened any circumstance on account of which the departure of Niranjan Singh for the police station was delayed.

Mr. Bindra, learned Counsel for the Appellants, has argued that the prosecution allegation that the report was recorded at 12-15 a.m. is not correct and that the material on the record goes to show that a considerable time and thought was spent in preparing the prosecution story. In our opinion, there is force in the above contention.

One of the essential requisites to ensure a fair trial is that the first information report in respect of a cognisable offence should be lodged as soon as possible. Where the lodging of the report is delayed, it not only gets bereft of its spontaneity, danger also creeps in of the introduction of coloured vensions, thought out stories and twists to actual facts. The interested parlies can then be sounded and some of them shown as false witnesses. Likewise, some innocent persons can be roped in and named as culprits as a result of much thought, consultation and discussion. To avoid these dangers, the Courts have always insisted upon the prompt lodging of the report to the police. In murder cases, because of the enormity of the stakes involved certain additional safeguards are provided to ensure that the version of the occurrence is disclosed as soon as possible thereafter. One of those safeguards is that in murder cases a copy of the first information report should be sent to the Ilaqa Magistrate immediately after the report is made. This is provided in Rule 24.5 of the Punjab Police Rules, Volume III, 1959 edition, the relevant portion of which reads as under:

In murder cases the following procedure shall be followed:

(i) The first information report shall be sent to the Magistrate concerned immediately in his court during court hours and at his residence thereafter.

(ii) la case the Magistrate concerned is out of station, the first information report shall be submitted to the Duty Magistrate.

(iii) If the Magistrate is not available after court hours the copy of the first information report shall be left at his house by the messenger noting the date and hour of delivery on the cover with the cements.

(iv) If on account of difficulties of communication or other causes the delivery is delayed, the reasons and delay shall be noted on the cover.

(v) As soon as the first information report is received by a Magis-strate he shall affix his initials therefor and note thereon the date and hour at which the report has been received by him. In the case of a delayed first information report, if be disagrees with the reasons given by the police officer for such delay, he shall also give his own reason for the same, if any.

(vi) In cases where the police station is not situated in the same place where the Magistrate resides or where the police station is situated in an out-of the way place, the carbon copy of the first information report after it has been recorded, shall be posted at once at the nearest post office, addressed to the Magistrate by name before the first, clearance of the dak. In such cases the Magistrate shall check that the first information report has been despatched by the earliest post after its registration in the police station as shown by the time recorded on it.

In the present case, the copy of the first information report, which was sent to the Ilaqt Magistrate, is Exhibit P.A. Assistant Sub - Inspector Inder Singh admits that the copy showed that it was received by the Ilaqa Magistrate on the 28th September, 1961, at 10 a.m. as mentioned on it. The Court of the Ilaqa Magistrate is at a distance of about 15 karams from the police-station, according to the Assistant Sub-Inspector, and if the report was prepared on the 27th September, 1961, at 12 15 a.m. there is no explanation why the delivery of Exhibit P.A. was delayed for about 34 hours. It also cannot be said that the copy remained lying in the office or residence of the Ilaqa Magistrate because his endorsement is to the effect that it was received by him dasti at 10 a.m. on the 28th September, 1961.

Mr. Jagga has pointed out that the case was initially registered u/s 304, Indian Penal Code, and for this reason, it was strictly not necessary to comply with the above rule. In this respect we are of the view that if the facts given in the first information report disclose the commission of an offence of murder, as in the present case, it is not open to the officer recording the first information report to circumvent the requirements of the above rule by registering a case u/s 304, Indian Penal Code, instead of Section 302, I.P.C.

another factor which may go to show that there was not very great delay in disclosing the version of the occurrence is to give the facts of the occurrence in the inquest report which containt a special space for reproducing, the facts of the occurrence. According to Section 174 of the Code of Criminal Procedure investigating officer when preparing the inquest report should "draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted". The inquest report is a document of vital importance and has to be prepared promptly because it has to be sent to the doctor along with the dead body when the body is sent for post mortem examination. The doctor then signs or puts his initials on the inquest report If facts about the occurrence are mentioned in the inquest report it would go to show that by that time in any case the version of the occurrence has been given. If, however, the facts of the occurrence are not mentioned in the inquest report, the argument that till that time the investigating officer who prepared the inquest report, was not sure about the facts, cannot be deemed to be devoid of force. In the present case, it is admitted by Assistant Sub-Inspector Inder Singh that in the space for the brief facts of the case provided in the inquest report (Exhibit P. E.) the names of the accused and the eyewitnesses of the occurrence were not mentioned by him.

The third safeguard to ensure the prompt disclosure of the facts of the occurrence is to enter the substance of the report in a book prescribed by the State Government apart from the first information report register in which the full report is reproduced. This is provided in Section 154 of the Code of Criminal Procedure, which reads as under:

Every information relating to the commission of a cognizable offence if given orally to an officer in charge of a 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.

According to Rule 24.1 of the Punjab Police Rules, Volume III, 1959 edition, the substance of the report is to be entered in the daily diary. The relevant part of the rule reads as under:

Every information covered by Section 154, Criminal Procedure Code, must be reduced to writing as provided in that section and the substance thereof must be entered in the police station daily diary, which is the book provided for the purpose. It is only information which raises a reasonable suspicion of the commission of a cognizable offence within the jurisdiction of the police officer to whom it is given which compels actions u/s 157 Criminal Procedure Code.

Assistant Sub-Inspector Inder Singh was questioned about the entry in the daily diary in this respect. According to the Assistant Sub-Inspector he had dictated to the Moharrir Head Constable the names of the accused mentioned in the first information report for entry in the daily diary but the Moharrir Head Constable accidentally ommitted to mention their names. The names of the eye-witnesses were not also mentioned in the daily diary because the Assistant Sub-Inspector did not dictate the names of those witnesses.

We thus find that all the safeguards, which may go to show that the facts about the occurrence were disclosed at the earliest time, and the first information report was recorded at the time at which it purports to have been done, are lacking in this case and this cannot be a matter of mere coincidence. There is, in the circumstances, considerable force in the argument of Mr. Bindra that the first information report was prepared after great delay and the facts of the occurrence were not disclosed promptly. In a case like the present, the delay in recording the first information report becomes all the more significant because even though all the injuries which were found on the body of the deceased could have been caused by one assailant, the prosecution has named three persons, all belonging to one family as the assailants of the deceased. The three incised wounds on the body of the deceased could have been caused by the same weapon while the abrasion, according to Dr. Didar Singh, could have been the result of fall. The two eye-witnesses, who have been produced in this case, are the brother and wife of the deceased. No other person living in the neighbourhood of the place has been examined though it is most likely that some of them must have witnessed the occurrence, if, as alleged by the prosecution, it took place at sunset time in a residental area and alarm was raised at that time. The failure of the prosecution to examine such independent witnesses would justify the Court drawing an adverse inference. No motive has also been proved or even mentioned on account of which the accused caused the injuries to the deceased.

The prosecution has further alleged that Niranjan Singh, after the occurrence, went and talked about it to Pritam Singh (P. W. 5) and Bhag Singh (P. W. 6), who have also deposed to that effect. Pritam Singh admits that his brother''s son Leelu had caused some injuries to Gurdev Singh accused for which he was challaned and convicted. Pritam Singh also appeared as a witness against Gurdev Singh in a case u/s 324, Indian Penal Code. Bhag Singh admits that he appeared in Arms Act case against Gurdev Singh, but the latter was acquitted. In the circumstances, Pritam Singh and Bhag Singh cannot be deemed to be altogether disinterested witnesses. In any case, the evidence of Pritam Singh and Bhag Singh also sutlers from the same infirmity as that of the ocular witnesses because the report was not recorded promptly.

Regarding the recoveries made from the accused, the prosecution evidence consists of the testimony of Bhag Singh (P. W. 6) and Assistant Sub-Inspector Inder Singh. Bhag Singh, as mentioned above, appeared as a witness against Gurdev Singh in another case and despite that Gurdev Singh was acquitted. Although, according to the prosecution case, the weapons of offence were recovered in pursuance of the statements of the accused that they had kept them at the places from which they were recovered, no memorandum somehow with regard to the disclosure statements was prepared. It may also be mentioned that two of the accused, namely, Ghamdur Singh and Gurdev Singh, who were tried under the Arms Act for the recoveries of barchhas from them were acquitted by the trial Court of that charge.

We, therefore, are of the view that the prosecution has failed to bring the guilt home to the accused and the case against them, in any case, is not free from reasonable doubt. We accordingly accept the appeal, set aside the conviction and acquit the Appellants.

Gurdev Singh, J.

I agree.