Harminder Singh vs State of J & K

The appellant was tried and convicted for commission of offences under section 302RPC and 3/25 Indian Arms Act for having committed the

murder of deceased, Smt. Amila Salathia by shooting her with a 12bore gun, by the Court of 1st Addl. Sessions Judge Jammu. Learned Trial

Court by its judgment/order dated 30.11.1999 and 15.12.1999, after convicting the appellant for commission of the above said offences has

sentenced him to undergo imprisonment for life and to a fine of Rs. 5,000/ in default to undergo further rigorous imprisonment for one year for

offence under section 302RPc while for the offence under section 3/25 Arms Act a simple imprisonment for one year and a fine of Rs. 1000/ and

in default to undergo further simple imprisonment of one month, has been imposed.

Learned Trial Court has made a criminal reference under section 374Cr.P.C. for confirmation of the sentence imposed, whereas the accused

being aggrieved by his conviction and sentence has filed the Criminal Appeal.

The deceased Smt. Amila Salathia was the real sisterinlaw [Bhabi] of the accused. The story of the prosecution in nutshell is that on 11.1.1997

at about 8.45 PM the deceased was pre? paring meals it the kitchen of her house situated at Gurah Salathian Teh. Samba. Her husband Dr.

Anirudh, was in his room. The father of the accused and Dr. Anirudh PW Jagdev Singh was sleeping in him room. PW, Madan Singh, a cousion of

the accused as well as PW. Dr. Anirudh was in the house of the deceased and to him the deceased was serving meals. The accused was also in

the house. The accused went in side the room of his father where a gun was lying in the almirah. He took out the gun, entered the kitchen and fired

upon the deceased. The shot hit the deceased on the left side of her chest, she fell down and succumbed to the injuries of on spot. After firing the

shot, the accused ran away alongwith the gun. On hearing the gunshot PW Dr. Anirudh Singh rushed towards the kitchen and he saw the accused

running away from the spot. He gave him a chase but could not catch him so he returned back to his house. Mrs. Amila Salathia was shifted to a

room from the kitchen. She breathed her last. PW Madan Singh accompanied by PW Govardhan Singh and Karam Singh lodged report with

Police Post Vijaypur at 3:15 Am Police Post Vijay Pur reported the matter to Police Station Samba and conseuqently FIR No. 10/1997 under

Section 302 RPC and 3/25 Arms Act was registered and investigation started. The Investigator went on spot, prepared the site plan dead body of

the deceased was got photographed, from the scene of occurrence blood stains and plain earth was seized, besides one pair of nylon chapple.

Same was sealed. The dead body was sent for postmortem to P.H.C. Ramgarh where postmortem was got conducted. 52 pellets etc. were

removed from the dead body of the Deceased and were sealed and sent for chemical examination to F.S.L. Clothes of the deceased were also

seized. A 12 bore gun No. 22003/95 manufactured by Popular Gun works on being found near the cattle shed of Chhankar Singh was seized. Site

plan of the recovery of weapon of offence was also prepared. Statements of the witness under section 161 Cr.P.C. were recorded. Search of the

accused was also initiated. Ultimately on 18.1.1997 the accused came to be arrested by a Police Party from Chowkichora. After investigation of

the case a charge sheet was filed in the court of Learned sub Judge JMIC Samba who committed the case for trial to the Court of Learned

Sessions Judge Jammu, who in turn transferred the same to the Court of Learned 1st Addl. Sessions Judge Jammu. Learned 1st Addl. Sessions

Judge Jammu framed the charge against the accused u/s 302 RPC and 3/25 Arms Act. The charge was read over and explained to the accused

and he was called upon to plead. The accused did not deny the charge and admitted his guilt. As the accused has admitted the guilt in answer to

the charge, therefore, it will be apt to reproduce here the statement of the accused. The following is the translated version thereof.

Q Have you heard and understood the memo of charges?

[NoteThe charges have been read over and explained to the accused]

A Yes Sir.

B

QHave you committed the offence and do you confess your guilt?

A Yes Sir, but I was drunk and under the influence of Liquor, I picked up the gun from the room, had picked up the gun from Kachha room, the

deceased was present in the kitchen. I entered in that kitchen and fired a shot from the gun on the deceased Amila Devi. I was being teased by my

sisterinlaw and other members of the family. I was doubting the character of my sisterinlaw. I had been beaten up by my brother Anirudh Singh

who had broken my head and for the reason I had a grouse. I only wanted to cause injury to my sisterinlaw and did not intend to kill her. I had

closed my eyes and by pointing the gun towards my sisterinlaw had fired the same. At that time I was in drunken condition. I knew at that time that

there was a cartridge in the gun.

Q Have you given the statement with your free will.

A Yes Sir.

Though the accusedappellant in terms of the above statement has confessed the gulit by accepting the allegations of the charge yet the learned

trial Court put the accused to trial and directed the prosecution of lead evidence. The prosecution has led direct as well as circumstantial evidence

to prove the charge.

PW Madan Singh has been examined as an eye witness. He has stated that on 11.1.1997 he had gone to village Gurah Salathia at his parental

house. The time was about 9 PM. At that time his uncle [brother of his father] was at his house. He was taking meals in then kitchen when the

deceased was serving the meals. Dr. Anirudh Singh, Jagdev Singh [Father of Dr. Anirudh Singh] and Kushaldev Singh were also presented in the

house. They were sitting in doctor's room. The accused entered into the kitchen after opening the door. He was having a gun in his hands. He

asked him as to why he was there and then he fired upon the deceased in her chest. When he tried to save the deceased from falling on the ground

the accused ran away. He raised hue and cry and at the same time Dr. Anirudh, Kushaldev Singh also reached on spot. He has further stated that

the deceased breathed her last on spot. He reported the matter to the Police Post Vijaypur Vide EXPWMS and the Police reached on spot next

day.

PW Dr. Anirudh Singh is the husband of the deceased. He has stated that the accused is his brother and on 11:1.1997 at about 8.45 PM he

was in his bedroom. His father, Jagdev Singh PW, the deceased, his nephew and P.W Kushaldev Singh, were also present there. Madan Singh

had come on the same day as his cousin sister, who is real sister of Madan Singh, was not well and was to be got checked up from a lady doctor.

As Madan Singh had come from Jammu and had not taken his meals, so he asked the deceased to serve meals to him. Whereas he and his

brotherinlaw went to a room for listening news on the radio, when the news was over his brothernlaw went to bathroom and he was awaiting

outside. He heard the sound of fire in the kitchen and also heard the cry ""dady bachao"". He saw the accused running away after firing with the gun.

He alone chased the accused to a long distance. He went back to the kitchen and found his wife injured and Madan Singh standing near by.

People gathered on spot and the dead body was shifted from the Kitchen to the other room. He then asked Swaran Singh to inform others. The

accused had infact picked up his gun i.e. the gun of the witness from the other room. The cartridges which were lying in the almirah of his father

were found missing.

PW Kushaldev Singh, uncle of the deceased, has stated that on 11.1.1997 he was called by his Fufa for taking sweets to the parental house of

Amla Salathia on 12.1.1997 as it was the day of Lohri festival. According to him he reached in the house where the occurrence took place at 7.30

PM. He found the deceased and her husband there. He was sitting in the bedroom, which is adjacent about 20/25 ft. from the kitchen. The

deceased was also there. At about 8.30 PM Madan Singh reached there and told that he had to consult some doctor since his wife was pregnant.

Dr. Anirudh Singh told him that he will accompany him on the following day for consulting some lady doctor. Then Dr. Anirudh Singh asked the

deceased to serve meals to Madan Singh. Madan Singh and the deceased went into the Kitchen and after five minutes he while he was going to the

toilet, which is situate in front of the kitchen, saw that Madan Singh was taking meals and the deceased was standing there. When he came out of

the toilet he saw that the accused was coming out of the kitchen having a gun in his hands, after having fired. From the Kitchen deceased Cried

Hai Mar Deya Daday Bachao"". Madan Singh was also shouting that the accused had killed the deceased. The accused ran away from the spot.

He tried to apprehend the accused but could not do so being afraid of the accused as he was having a gun. At that time Dr. Anirudh had also come

there and he tried to manage the deceased. Since pellets had hit the deceased on the chest, she breathed her last. Then they carried the dead body

to the other room.

PW Jagdev Singh, the father of the accused and father in law of the deceased, who was also, as per story of the prosecution, in the house at the

time of occurrence when came in the witness box stated that on 11.1.1997 when he had taken the meals, the deceased served him with milk and

then he went to sleep. After sometime he heard some noise in the adjoining room and he asked as to who was in the room, the accused replied

that it was he. He asked him as to what he was doing there, the accused replied that he was searching for a candle. According to him the licensed

gun of the doctor was lying in that room. He again went to sleep. He then heard Madan Singh weeping and saying that the accused had killed his

sisternlaw. He saw the deceased lying in a pool of blood and her husband was trying to manage her. She had died on spot.

This was the resume of the evidence of the eyewitness as well as that of those witnesses who were present on spot at the time of occurrence as

per the prosecution. The prosecution has led circumstantial evidence also. Let us make a brief reference to the evidence of other witnesses of the

prosecution as well.

PW Bharat Singh, the father of the deceased has testified that the deceased had left behind 2 sons aged 8 and 6 years old. The deceased had

been often telling him that the accused picked up quarrels with her and harrassed her. She also disclosed that the accused quarreled with his

brother Dr. Anirudh Singh in June 1996 and had beaten him and the deceased. She also disclosed that the she was apprehending danger to her life

from the accused. That on 4.1.1997, the deceased had come to his house for the last time to meet her sister Minakshi, who was a medical student

studying at Behalgam and on that right also she complained that the accused was threatening her. He futher stated that on 11.1.1997 Joginder

Singh, Govardhan Singh and Madan Singh came to his house at 11.30 PM and informed him that the accused had fired on the deceased with a 12

bore gun and killed her. He went to the house of deceased and found the dead body of his daughter lying in the room. The clothes were

bloodstained and there was a gunshot injury on the left side of her chest. After the postmortem all the people accompanying the dead body of the

deceased reached at the house of Jagdev Singh and they found and they found a 12 bore gun, a blanket in the Kullah kharkhana hut, which is,

situate near the house of Jagdev Singh. The gun had an empty cartridge in it. The same was unloaded, packed and sealed. Gun and the blanket

were seized separately and seal was kept on his Spurdnama. He has also stated about the seizure of bloodstained soil, plain oil and a pair of nylon

chapel etc. He has admitted the contents of EXPWMSI & 2 and EXPWGS 1 to 7 to be correct.

PW Karam Singh, another relation of the parties has stated that he was informed in the intervening night of 11/121 1/1997 at about 1 PM by

PWs Madan Singh, Bharat Singh, Jagdev Singh and Mohan Singh about the murder of the deceased. According to him they went to Gurah

Salathia where they found the dead body of the deceased with bullet injuries on the left side of the chest. Thereafter Bharat Singh told them to

report the matter to the Police and at about 3.15 AM he, Govardhan Singh and Madan Singh went to Police Post Vijaypur and lodged the FIR.

He has further stated that Police reached at the spot at 4.PM and seized the dead body and other articles. He has also proved the seizure memos.

PW Mohan Singh is another witness who on having been informed about the murder of the deceased reached on spot. According to him he

wrote the application on behalf of Madan Singh and instructed him to report the matter to the police. He has also stated that during postmortem 52

pellets, five round balls etc. were recovered from the dead body of the deceased which were seized by the Police vide seizure memo EXPWBS/5.

PW Chankar Singh has stated that he found a gun and blanket lying with a wall. He informed PW Jagdev Singh about it. Then Police came and

seized the gun and the blanket. PW Gowardhan Singh has testified that on 11.1.1997 he had sent his brother Madan Singh to Gurha Salathian to

call for the doctor for check up of his sister Sarishta. Madan Singh returned at 10.30 PM and told him about the death of the deceased by saying

that the accused had shot the deceased dead. According to him also Mohan Singh wrote an application and sent him, Madan Singh and Karam

Singh wrote an application and sent him. Madan Singh and Karam Singh to lodge the report. He has identified his signatures on the roznamcha and

admitted the same to be correct.

Another circumstances on which the prosecution has led evidence is that the accused when was on the run had met the witnesses. PW Farooq

who lives 2 K. Ms away from Gurha Mandi has stated that one day before lohri festival the accused came to him, he was armed with a gun but the

accused asked for some water to drink and then demanded a blanket from him on the pretext that he was going towards the field. He gave a

blanket, which he identified, in the court, which was given by him to the accused. PW Sadiq has stated that he was near his dera at Gurah Mandi,

at about 9/10.15 PM accused came to his dera and firstly called Kalu by name and demanded some water. Kalu gave him water. PW Ranjit Singh

has stated that the accused came to his house at 5.30 PM when he was having a gun in his hand. He asked the accused whether he would like to

purchase some meat. The accused replied that first he would ask his father. Then after 15 minutes he came and purchasedment and went back.

After that when they were taking meals he heard that the accused had killed his sisterinlaw. PW Keshav Kumar has stated that the accused had

purchased some sweets from his shop. PW Des Raj has stated that on 13.1.1997 he had gone to village Garigarh where his cousin sister had died.

He returned home during night and the next morning he found the accused coming out from his house. He did not speak to him. Later on police

came along with the accused and inquired from him as to whether the accused has stayed at his house, to which he replied that he had only seen

the accused coming out from the house of his nephew. PW Maqbool has stated that the accused came to his house on the second/third day of

Lohri. He was alone and had stayed at his house during the night. PW Pinku Sharma who is an employee at the Glaxy Guest House Katra has

stated that on 16.1.1997 one person namely Harminder Singh S/o Jagdev Singh R/o Gurah Salathia has stayed Hotel Glaxy Katra. Pawan Kumar

is the witness of the seizure of the register of Glaxy Hotel. PW Prem Nath is the proprietor of Glaxy Guest House. He has identified the register of

his hotel. PW Attar Hussain is the patwari who has admitted to have prepared the site plan on the place of occurrence. PW Chaman Lal is the

Tehsildar who has proved the resealing of seven sealed packets broughts by the Police. PW Krishan Lal is the Incharge Police Post Chowkichora.

He has stated that on 17.1.1997 at about midnight a stranger came within the range of naka, he tried to abscond but was apprehended and he

disclosed his named to be Harminder Singh. He had given a message to Police Post Vijaypur and on the asking of the SDPO the accused was

handed over to the Police. PW Gopal Singh proved the entries of the roznamcha. According to him the accused was arrested in his presence on

18.1.1997 on being brought to Police Post Vijaypur. PW Daljit Singh is the investigator. He has stated about the manner in which he had

conducted the investigation, whereas PW Dr. Raj Bhagat, who conducted the postmortem has testified that the injuries found on the dead body as

mentioned in the postmortem report have been caused by gunshot on the person of the deceased. He has also stated that the foreign body gunshot

pellets, 52 in number 5 rubber rounds and cartridge card core were found in the cavity surrounding the hears and other parts of the body. He

sealed the pellets in a bottle and handover to the police. In his opinion the deceased had died by gunshot injuries. PW Rajinder Singh Jamwal, an

except of F.S.L. has stated that he had received 7 packets whose seals were intact. Out of seven packets he opened only packets, mark F&G.

The packet F was found containing 12 bore gun bearing name of Popular Gun Works No. 2003/95 whereas packet G contained one 12 bore

fired cartridge. The remaining five packets in sealed condition were forwarded to Biological section for examination. According to him the gun was

subjected to thorough physical examination and his observation were as follows:

12 bore SBBL gun marked F28/97 was found in normal working condition.

123 bore SBBL gun marked F28/97 was fired through prior to its receipt in the laboratory.

The fired cartridge marked as F29/97 was fired through the 12 bore SBBL gun marked F287/97.

He also stated that he examined the pellets 52 in number alongwith nine cardboard wads, including one coushin ward and their examination

revealed the fifty two fired mutilated pellets and nine wards belongs to the seize of BB of 12 bore cartridge. He has proved the report to be in his

handwriting and correct. PW KK Raina Scientific officer who examined the bloodstained clothes of the deceased as found 'that those were stained

with human blood of blood ground B. However, he did not state as to whether that blood was that of the deceased because the blood sample of

the deceased has not been sent to him.

From the above said direct as well as circumstantial evidence the prosecution sought to prove the guilt of the accused before the Learned Trial

Court. The trial Court after relying upon the evidence tendered by the prosecution put the incriminating circumstances appearing in the prosecution

evidence to the accused and recorded his statement under section 342 Cr.P.C.. It is significant to note here that in the statement u/s. 342 Cr.P.C.

The accused did not deny his guilt. Some of the answers given by the accused in his statement u/s. 342 need to be noticed and hence are being

reproduced in a translated version as follows:

Q. In the statement of PW Madan Singh it has come that on 11.1.97 at Gurah Salathia at about quarter to nine when he was taking meals in the

kitchen and his bhabi [the deceased] was serving the meals and other witness Dr. Anirudh Singh, Kushaldev Singh and Jagdev Singh were present

in their respective rooms and when the witness was taking meals and the deceased was standing near the fridge you entered into the kitchen after

opening the door. What have you to say?

A. Yes it is correct.

Q. In the evidence of prosecution witnesses it has appeared that after opening the door when you entered into the kitchen at that time you had a

rifle in your hand and you called the witness by his name and asked him why he was there and then instantly you fired a gunshot on the deceased

and the shot hit the deceased on her chest due to which she fell down and breathed her last, what have you to say?

A. Yes I had fired upon the deceased.

Q. In the prosecution evidence it has also appeared that after firing the shot the witness and Subhash Singh raised he and cry on hearing which Dr.

Anirudh, and Kushaldev Singh entered the kitchen and you after firing the shot ran away from the spot, what have you to say?

A. Yes it is correct.

The Learned Trial Court accepted the evidence of the prosecution and held the accused guilty of the offence.

We have heard the learned Counsel for the parties and have perused the record thoroughly.

The deceased is alleged to have died a homicidal death. This allegation of the prosecution has not been disputed by the appellant. From the

evidence of Dr. Raj Bhagat it is amply proved that the deceased has died due to a gunshot injury. The pivotal question arising for consideration is

as to who caused the fatal injury to the deceased. The case of the prosecution is that it was the accused alone who fired the shot. The eye witness

of the crime is PW Madan Singh. He has claimed that he had gone to the house of the deceased to consult Dr. Anirudh Singh as to from which

lady doctor he should get his wife examined. On this stand of the witness there is plenty of corroboration available in the evidence of his brother

PW Govardhan Singh who says that he had sent his brother PW Madan Singh to the house of Dr. Anirudh Singh. Strong Corroboration comes

from the evidence of PW Jagdev Singh who is none else than the father of the accused. He has certified the presence of PW Madan Singh in the

house where occurance has taken place. The evidence of PW Jagdev Singh is unimpeachable because firstly his presence in his house is natural

and secondly he being the father of the accused is not expected to lie for falsely implicating his own son. Further assurance is lent by the evidence

of PW Anirudh Singh who too has asserted the presence of PW Madan Singh on the spot immediately before the occurrence. Even despite grilling

cross examination the defence has not been able to improbable his presence on the spot. The prosecution thus has conclusively and cogently

established the presence of PW Madan Singh on spot.

PW Madan Singh has stated that he was taking meals in the kitchen and the deceased was serving meals to him and thus was standing there

when the accused entered the kitchen called him by name and asked what he was doing there and instantly fired a shot on the deceased which hit

her at her chest. When he tried to save the deceased from falling on the ground the accused ran away from the spot. Assurance is lent to his

version by PW Anirudh Singh when he heard the sound of the gunshot he came out of his room and saw the accused running from the spot with

gun in his hand. He chased the accused but could not catch him. Though the deceased was his wife yet being the brother of the accused he would

have no reason to falsely implicate the accused. Therefore, corroboration to the evidence of PW Madan Singh is provided. The medical evidence

also sufficiently corroborates the eye witness account. The gun used by the accused belongs to PW Anirudh Singh. Some of the prosecution

witnesses have seen that gun in the hand of the accused. The evidence of Ballistic expert has established that shot had been fired from the gun. The

Pellets recovered from the body of the deceased have also been proved to be the pellets of a 12 bore cartridge. The circumstances established by

the prosecution pointedly point to the guilt of the accused. And above all is the confession of the accused while answering the charge and

admission made in the statement of the accused u/s 342 Cr.P.C. which are staring the defence at face. But Learned Counsel the defence at face.

But Learned Counsel for the appellant contends that the conviction of the accused is illegal, so we proceed to deal with the contentions raised and

grounds of challenge taken for assailing the judgment of the Learned Trial Court.

Firstly it has been contended by Learned Counsel for the appellant that he has been framed up in the case. According to her submission the

accused was not present on spot at the time when occurrence took place and therefore, the case of the prosecution is false. Thus Learned counsel

for the appellant is projecting the plea of alibi on behalf of the accused. It may be pointed out here that the plea of alibi was not taken by the

accused before the trial court in answer to the charge or his statement u/s 342 nor any evidence was led by him in defence for establishing such

plea. Learned Counsel for the appellant is seeking to establish said plea from the evidence of the prosecution itself.

The plea of alibi being in the nature of a defence is required to be established by the accused with absolute certainity, so as to negate the

possibility of the accused committing the crime at the scene of occurrence. It is for the accused to prove by leading cogent evidence that at the time

of the commission of the offence he was at some other place and therefore it was impossible for him to be at the place of the commission of the

offence at the time when the offence was committed.

In AIR 1997 SC 322 Binay Kumar Singh v. State, the Supreme court has held:

It is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainly so as to exclude the possibility of the presence at

the place of occurrence........normally the court would be slow to believe any counter evidence to the effect that the accused was elsewhere when

the occurrence happened. It would be sound proposition to be laid down that, in such circumstances, the burden on the accused is heavy. Strict

proof is required for establishing the plea of alibi.

In the present case the prosecution has discharged the onous of proving that the accused was present on the spot at the time of occurrence by

leading the evidence of eye witness. PW Madan Singh and PWs Anirudh Singh, Jagdev Singh, Kushaldev Singh. The burden of proving that he

was not present on the spot by leading cogent evidence. The appellant here has not led any evidence in this behalf and has hot even expressly

projected such plea during the trial, therefore, there is no question of permitting such plea to be urged in appeal. Learned Counsel for the

accused/appellant relies on the case reported in AIR 2002 SC 3208 for submitting that the accused can establish such plea from the evidence of

the prosecution. This case has no application here because in that case the Supreme court has nowhere held that the plea of alibi can be

established from the evidence of the prosecution. In the case before the Supreme Court the accused had led the evidence in defence for

establishing the plea but the same had not been accepted by the High court. The Supreme Court however, in the circumstances had found the

rejection of the plea impermissible In other case, Cr.L.J.1996 page 2827 of this Court again was a case where the accused had led the evidence in

defence for establishing the plea of alibi.

In our considered opinion the plea of alibi in the strict sense of the term can not successfully be taken by an accused who has not led the

evidence in defence for establishing the exclusion of the possibility of his presence at the place of occurrence at the time of commission of the

offence. To us plea of alibi being taken by the counsel for the appellant appears to be a submission for improbablising the version of the eye

witness and other witnesses of the prosecution who have stated that they had seen the accused at the spot. Learned Counsel for the appellant

contends that PWs Farooq and Sadiq have admitted the presence of the accused with them therefore, the version of eye witness Madan Singh and

PWs Jagdev Singh and Anirudh Singh is false. We have gone through the evidence, which can render the presence of the accused on spot at the

time of occurrence doubtful. PW Farooq has admitted in crossexamination that his Dehra was at 1015 minutes walking distance from the house of

the accused, therefore, merely because he has stated that accused had come of his dehra on the day of occurrence and took water and a blanket

from him it can not be held that the accused could not be at the place of occurrence. The accused could go to him after committing the crime. PW

Sadiq also admits that his dehra was at a distance of one Kilometer from the house of the accused and according to him also the accused came to

him at 9 or 9.15 PM. The occurrence took place at about 8.45 PM, therefore, it was not impossible for the accused to reach thereafter the crime.

We, therefore, do not find any substance in the submission of learned counsel for the appellant.

Learned Counsel for the appellant next contends that there is delay in lodging the FIR. She argued that FIR was lodged after deliberation and

therefore, embellishes the entire story of the prosecution. She has argued that the FIR was lodged by PW Madan Singh after returning from

Jammu. Why did he not straightway go to the police post Vijaypur? In the circumstances of the case delay is fatal to the case of the prosecution as

per the Learned Counsel.

Delay in lodging the FIR as per se is not fatal to the case of the prosecution. It is only such delay which in the circumstances of the case raises

the possibility of creating false evidence for falsely implicating the accused, can prove fatal to the case of the prosecution because by immediate or

within reasonable time lodging of the FIR assurance of the truthfulness to the prosecution case is provided. In AIR 1991 SC 63 the Supreme

Court observed:

The delay in giving the FIR by itself cannot be ground to doubt the prosecution case....... The court cannot rejected the prosecution version as

given in the FIR and later substantiated by the evidence merely on the ground of delay. These are matters for appreciation and much depends on

the facts and circumstances of each case. At times being grief sticken because of the calamity it may not be occurred to the concerned that they

should give a report.

And in AIR 2002 SC 4290 the Supreme court has held:

Delay in sending FIR to the Magistrate can not be taken to be a ground for throwing out the prosecution case if the same is otherwise trust worthy

upon appreciation of evidence which is found to be credible.

In the present case the occurrence took place at 8.45 PM. The FIR was lodged by PW Madan Singh at 03.15 AM i.e. within 7 hours at

Police post Vijaypur. PW Madan Singh has explained the delay by saying that they had been waiting for the parents of the deceased and when

they came he alongwith others left for lodging the FIR. The delay, if any in our view has been satisfactorily explained. In view of the mindset of the

rural families the conduct of the witnesses who lodged the FIR appears to be natural.

The third contention raised by the Counsel for the appellant is that trial of the accused is vitiated for the reason that accused was instance when

he was tried for the offence.

Learned Counsel for he appellant contends that accused made application for his medical examination to determine the fact of his being

instance but the trial court without sending the accused for medical checkup held him same and therefore, mandatory provisions of the Code of

Criminal Procedure have been violated rendering the trial of the appellant valid.

Section 465 of the Code of Criminal Procedure deals with the situation. It reads:

465Procedure in case of person committed before the Court of session or High Court being Lunatic [1] If any person committed for trial before a

court of Session or the High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence in the

court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the court is satisfied of the fact, the Judge shall record a

finding to that effect and shall postpone further proceedings in the case.

[2] The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court.

From the above perusal of the section it is evident that whenever it appears to the court that the accused person is of unsound mind and is

incapable of making his defence the court is bound in the first instance to try such fact and such unsoundness and incapacity before proceeding with

the trial. The use of expression 'appear to the court' in the section is significant. By using this expression what intended to be done by the court is to

initially formulate aprima facie opinion as to whether the accused seems to be a person of unsound mind and incapable of making a defence. It is

only when the court is prima facie satisfied the fact of unsoundness of the mind of the accused and incapacity to defend in the trial is to be tried at

the first in stance.

Coming to the second point, no question was raised before the Committing Magistrate that the appellant was insane at the time of the occurrence

or trial and his statement before the Magistrate under S. 364 Cr.P.C. clearly shows that he was same in mind and able to stand trial. It seems that

the statement of the Standing counsel before the Sessions Judge made him look into the matter, and quite rightly, but on questioning the accused

the Learned Session Judge was satisfied that it did not appear to him that the appellant was insane. Section 465 Cr.P.C. requires that there should

be an enquiry within the second limb of the Section if it appears to the Sessions Judge that the accused was insane but if it does not appear to him

so it is not necessary that he should conduct a regular enquiry under the second limb of the section. It is true that the word ""appears"" in S. 465

imports a lesser degree of probability than ""proof"" but this does not mean that whenever a counsel raises a point before a Sessions judge he has to

straightway hold an elaborate enquiry into the matter. If on examining the accused it does not appear to him that the accused is insane it is not

necessary that he should go further and send for and examine medical witnesses and other relevant evidence. Of Course if he has any serious

doubt in the matter the Sessions Judge should hold a proper enquiry.

In the present case the counsel for the accused filed an application on 20.6.1997 before the trial court seeking medical examination of the

accused by a Board of doctors on the question of his mental capacity for ascertaining as to whether he is capable of defending his case and for

postponing the trial till such determination. Learned Trial court considered the application. It was argued on behalf of the accused that the accused

at the time of commission of crime as well as during the proceedings when his statement was recorded in answer to the charge was mentally

unsound and not in a position to understand the nature of the act and the proceedings so the accused should be got medically examined. Learned

trial judge rejected the application by this Order dated 20.6.1997 by observing that he has examined the accused by putting him questions which

he deemed fit in order to known his mental condition. According to the Learned Judge the accused did not appear to be mentally unsound or unfit

to understand the nature of the proceedings. Learned Judge further observed that he has no reason to believe that the accused is incapable to

understand the nature of the proceedings pending in the Court, however, Learned Amicus curiae is at liberty to get the accused medically examined

for his past mental condition. If relevant when the stage for decree evidence arrives. Learned Judge therefore, from the examination of the accused

formulated a prima facie opinion that the accused did not appear to him mentally unsound or unfit to understand the nature of the proceedings. The

accused did not challenge the finding of the trial court and thereafter the trial was commenced. After recording the statement of the accused u/s.

342 when the case stood posted for hearings the Amicus curae again moved an application for seeking medical examination statement u/s. 342

Cr.P.C. should be recorded afresh. This application however, was not pressed by Counsel for the accused and as such it was dismissed. Despite

withdrawal of the application same plea is being pressed into service by Counsel for the appellant in this appeal.

We have given our serious thought to the plea raised. In our view there is holding on record to infer that the accused was of unsound mind and

incapable of making out his defence during the trial. No exception can be taken to the order of the Learned Trial Court dated 20.6.1997 whereby

the application of the accused for medical examination has been rejected. The trial Court was aware of the position of law. It examined the

accused by putting him questions. From the perusal of the record of the trial court we have come across with an application of the accused himself

in his own hand, whereby he had requested the trial Court for providing the assistance of a counsel to him. In the application he was written.

The applicant most humbly submits as under that being a citizen of India under fundamental rights I have full right to defend my case, that being a

poor person I have no money at present to arrange myself to defend the case through advocate, that I have no any relation who will help me to

support with money and morally. It is, therefore, requested to your good self to arrange an advocate. I shall be very thankful.

From reading this application can it be said that the accused was of unsound mind and was not in a position to understand the nature of the

proceedings or to be incapable of defending himself. The answer in our considered opinion would be an emphatic No. From the averments made

in the application it is clear that the accused is a person of sound mind and knew that he has to defend himself in the trial of the Case. Learned

Counsel for the accused in support of her contention has relied upon a case reported in 1991 Cr.L.J. 1991. In this case it has been held by

Karnataka High Court as follows:

In a case where in the aftermedical examination the trial court did not try the fact of the purported unsoundness and incapacity of the accused, did

not record finding as to his mental condition and defending capacity and without fulfilling this initial obligation forthwith resumed and concluded the

trial on the main charge itself, it was observed that the resulting lacuna was not innocuous but vital. This Vital Lacuna would vitiate the trial"".

This case has no application to the present case because in the case before the Karnataka High Court there was prima facie evidence in the

nature of medical certificates issued from Mental Hospital from time to time and therefore, failure to hold inquiry as contemplated by S. 329 of

Central Cr.P.C was held sufficient to .vitiate the trial. In the case in hand there is no material placed on record by the accused or by any one to lay

basis for asserting unsoundness of mind of the accused.

Learned Counsel for the appellant has also relied upon a case reported in 1997 Cr.L.J. 1461 wherein the Gauhati High Court has held as

follows:

The rule of burden of proof in the context of the plea of insanity are [a] that the prosecution must prove beyond reasonable doubt that the offence

was committed by the accused that the requisite ""mensrea"" and the burden continues from the beginning till the end of the trial [b] that it is rebuttal

presumption that the prisoner was not insane when he committed an offence in the sense set forth in section 84 Indian Panel Code [c] that the

accused may rebut the presumption of insanity at the relevant time brining the case within section 84, IPC by producing Oral, documental,

circumstantial and other material and he may discharge the burden by establishing a reasonable probable case. The accused is not called upon to

establish the element of section 84 IPC by producing evidence beyond reasonable doubt and [d] that even the accused fails to establish

affirmatively or conclusively that he was of unsound mind and committed the act under the circumstances set out in section 84 IPC but raises a

reasonable doubt in the mind of the court as regards presence of essential ingredients of the offence, which of course includes, 'mensrea' the

requisite criminal intention, the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the

prosecution was not discharged.

This judgment as well has no application because it is not the contention was insane at the time of commission of offence. Insanity if is pleaded

by way of defence to the commission of Crime by an accused it is for him to probablise his defence by leading evidence. In the present case no

such evidence has been led by the accused nor such plea is being taken. The only plea which is being raised by the appellant is that he was

mentally unsound and was not capable of understanding his defence during the trial. The authority, AIR 1971 SC 1638, relied upon by the Counsel

for the appellant instead of supporting the accused supports the prosecution. In the present case as it did not appear to the Learned Trial court that

the accused was mentally unsound, conducting of inquiry into the matter was not deemed essential. Therefore, there is no merit in the plea of

learned counsel for the appellant in this behalf.

Lastly it has been argued by Learned Counsel for the appellant that statement of the accused recorded u/s. 342 Cr.P.C. can not be made sole

basis of arriving at finding of guilt of the accused. We are in agreement with the position of law as canvassed by Learned Counsel for the appellant

with regard to the value of the statement recorded u/s 342 but it can not be said that the statement of the accused recorded u/s. 342 Cr.P.C. does

not deserve any value or utility if it contains inculpatory admission. The Salutary purpose of recording the statement u/s. 342 is that it enables the

court to be appraised of what the indicted person has to say about the circumstances pitted against him by the prosecution. The answers to the

questions may sometime be explanatory to the incriminating circumstances adduced against the accused in the evidence of the prosecution for the

purpose of understanding the nature of the defence. In the present case even if the culpatory statement of the accused recorded u/s. 342 Cr.P.C is

ignored and overlooked the prosecution case stands proved on the strength of the prosecution evidence against the accused, to which assurance

has been lent from the confession of the accused made in answer to the charge.

We do not find any merit in the contention of learned counsel for the appellant and we find no illegality in the judgment of the learned trial court

through which the accused has been convicted. We also do not find any irregularity in the procedure adopted by the Learned Trial Court for trial

of the case against the accused. We, therefore, confirm the conviction of the accused for commission for which he has been convicted.

As regards the sentence, the accused has been sentenced to undergo life imprisonment with fine. Learned Additional Advocate General,

appearing on behalf of the State, submits that it is a case where instead of life imprisonment, extreme penalty should have been awarded to the

accused. According to him the victim was a helpless lady who had never expected her death at the hands of her real brotherinlaw, a member of the

family. She was an educated lady and was a good house wife. Her two minor children have been deprived of love and affection of their mother.

Those two children have to suffer throughout their life. For them everything in life has been lost and on the top of it the accused has not shown any

repentance or remorse and instead in his statement u/s. 342 Cr.P.C justified the killing of innocent victim by saying that she was having a bad

character. According to Mr. Sharma, the accused has acted beastly and in the facts and circumstances of the case for justice and complete justice

can only be met by giving extreme penalty to the accused.

We have considered the plea raised by the prosecution. In our view the case in hand pertains to an unfortunate killing of a young lady and

mother of two minor children yet it does not fall in the category of rare or rarest cases. Therefore, the sentence awarded by the Learned Trial

Court does not call for any enhancement. We confirm the sentence also. The reference is answered accordingly and the appeal of the appellant is

dismissed. AccusedAppellant shall suffer the sentences.