Man Singh Praja vs State of Assam

S. Baraman Roy, J.—This appeal is directed against the judgment dated 6-12-91 passed by the learned Sessions Judge, Dibrugarh and Tinsukia, in Sessions Case No. 109 (T)/88 convicting the appellant u/s 302, I.P.C. and sentencing him thereunder to suffer rigorous imprisonment for life and to pay certain amount of fine.

The case, in short, is that three days after the occurrence on 16-9-87 at or about 12.20 p.m., a complaint was lodged by P.W. 1 Diti Saikia at Makum Police Station alleging that on 13-9-87 at or about 7.30 p.m. the appellant had assaulted the father of the informant, namely, Dilip Saikia (since deceased) severely on the head. Thereafter the injured was taken to Dibrugarh Medical College hospital for treatment and ultimately on 15-9-87 in the afternoon atorabout4p.m. the deceased succumbed to his injury. An explanation was given as to the delay in lodging the FIR stating that as the informant was busy with treatment of the deceased, he could not lodge, the complaint on time. On the basis of the said complaint, an FIR was registered u/s 302, I.P.C. at the police station against the present appellant. After usual investigation charge sheet u/s 302, I.P.C. was submitted against the appellant. Thereafter, the case was committed to the Court of learned Sessions Judge, Dibrugarh and Tinsukia, for trial and disposal. Upon perusal of the materials on record, a charge u/s 302, I.P.C. was framed against the appellant to which he pleaded not guilty. In course of the trial prosecution examined in all 8 PWs. Appellant examined none. Defence of the appellant was of complete denial of the prosecution case.

On examination of the evidence on record we find that PWs. 1, 2 and 4 claimed to be the eyewitnesses of the occurrence. PW 1 is the informant of the case, He is also son of the deceased. In his evidence he had stated that after taking food he was sleeping. It was about 9 p.m. when he heard some commotion in the house of P.W. 5, Sravana Praja. They thought that the commission must be due to some quarrel that had taken place. As the hue and cry increased, the deceased went to see as to what had happened. The house of P.W. 5, Sravana Praja, was stated to be situated some 50/60 yards away from the house of the informant. After some time, being requested by his mother, the informant also went to see where his father had gone. P.W. 3, Prabin Hatibaruah, also went there. Prabin was a servant in their house. Reaching there, the deceased found that the appellant was assaulting one Bhan. This Bhado has however been not examined as a witness in the trial Court. Then the deceased intervened in the matter and thereafter he was returning home. While coming to his home, deceased, informant and others reached the house of the appellant. Soon after that the appellant assaulted the deceased on his head with a lathi. P.W. 1, Diti Saikia, also stated that the instrument with which the appellant had assaulted the deceased may also be an iron rod. Being assaulted, the deceased fell down. After that the appellant also advanced to assault the informant. However, the informant fled away. After some time the informant and his party again returned to the house of the appellant but could not find him. The deceased was brought back to his home in injured condition. Afterwards they carried the deceased to hospital in a push cart for treatment. As no doctor was then available at Makum dispensary, the deceased was taken to Tinsukia civil hospital. Deceased was under treatment at Tinsukia civil hospital for a day and on the following day he was again shifted to Dibrugarh Medical college hospital. On the next day the deceased breathed his last. In course of cross-examination this witness further stated that while they were carrying the deceased to the hospital, they met a police patrolling party and they orally reported them about the occurrence.

P.W. 2, Shri Prabin Duara has also figured as an eye-witness in this case. In his evidence he has, inter alia, stated that during the material time he was working as a servant in the house of the deceased. At the time of occurrence he was sleeping in the house of the deceased and it was about 9 p.m. The deceased was also distantly related brother-in-law of this witness. It was then around 9 a.m. They heard some hue and cry in the house of P.W. 5, Sravana Praja. Hearing such hue and cry deceased went out. Simultaneously this witness along with P.W. 1 followed, the deceased. While going to the place of occurrence where the deceased had gone they saw the deceased returning after intervening in some "fight". At that point of time the appellant suddenly assaulted the deceased on his head with a lathi coming from behind. Deceased fell down. Appellant thereafter chased this witness also. However, this witness fled away. After a while this witness and others returned back to the spot but the accused was not found there as he fled away. They then brought deceased to Tinsukia dispensary and thereafter to Dibrugarh Medical hospital. But it appears from cross-examination of this witness that his statements before the learned trial Court are substantially at variance with his previous statement recorded by the I/O. However, we do not like to discuss those contradictions, inasmuch as, we propose to dispose of this case on some other more important questions. P.W. 3, Prabin Hatibaruah, is not an eye-witness. The deceased was his brother-in-law. He along with others brought the deceased to the hospital. Despite this, for long 3 days he did not give any information to the police and ultimately a case was registered on the basis of an FIR lodged by P.W. 1, three days after the occurrence.

P.W. 4, Fulchand Praja, stated in his evidence that he heard some hue and cry from the house of P.W. 5, Sravana Praja. Then deceased, P.W. 1 and this witness along with P.W. 2 came out. Then the appellant assaulted the deceased when he fell down. As he was about to look at the deceased a dog came and had beaten him and he ran away. However, again in course of the same examination in chief this witness stated that neither this witness nor the deceased and others entered the house of P.W. 5. However, when he was going to the house of P.W. 5, deceased, P.Ws. 1 and 2 were coming behind him. By the time he reached the house of P.W. 5 the quarrel was over. He further stated that this witness was walking ahead of others. Deceased suddenly fell down with a thud. He then turned back and saw Dilip falling down. P.Ws. 1 and 2 were near him. He further stated that nobody else was there. He also stated that he saw the appellant standing near the deceased. He did not notice if the accused was carrying anything in his hand. From these circumstances, it appears to us that this witness did not see the occurrence or at least he did not see as to who assaulted the deceased, inasmuch as, he made series of inconsistent statements in course of his evidence.

In this case, as we have already observed, FIR was registered on 16-9-87 at 12.20 p.m. in respect of the occurrence that took place on 13-9-87. We find further from the FIR that the police station was situated about 7 kms. from the place of occurrence. Though the occurrence took place at 9.30 p.m. of 13-9-87, yet they took long 3 days time to lodge the FIR. Any one of these prosecution witnesses, all of whom are close relations of the deceased, could have lodged the information/complaint at the PS on the date of occurrence itself or at least on the next day morning. Despite this, no FIR was lodged until on 16-9-87 in the afternoon. It further appears from the post-mortem report that the post-mortem was held with reference to Barberi OP GDE No. 455 dated 15-9-87. It is, therefore, clear that at least on 15-9-87 police had received information about the occurrence which was entered in the general diary of the police out-post. We are not sure as to the exact nature of that information received at the out-post. At least with reference to that GD entry an FIR could have been easily registered on 15-9-87 itself. But we find to our utter dismay that no such FIR was registered on 15-9-87. We also find that the FIR was produced before the learned Magistrate for the first time on 20-9-87. Iris not understood why there was such an inordinate delay for about 4 days to produce the report before the nearest Judicial Magistrate. Section 157, Cr. P. C, inter alia, provides that if, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered u/s 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person or shall depute one of his subordinate officer not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and if necessary to take measures for the discovery and arrest of the offender.

Therefore, when police received information and registered an FIR on 16-9-87, it was the duty of the police station to produce the FIR before the Magistrate forthwith or at least on that very day. Despite this police took long 4 days time to produce the FIR before the Magistrate.

From these circumstances, it becomes further doubtful as to whether the FIR was at all registered on 16-9-87 also. It seems to us that even on 16-9-87 perhaps no FIR was registered and the FIR was, in all probability, registered on 20-9-87 before the same was produced before the learned Magistrate and the same was ante-dated and ante-timed. Therefore, the possibility cannot be ruled out that as the incident occurred at or about 9 p.m., none perhaps saw the occurrence and due to suspicion and conjecture born out of enmity, present appellant was implicated with the case. They took time for deliberation and after lot of deliberation and consultation the FIR was perhaps prepared some time before the same was produced before the learned Magistrate on 20-9-87 and not at all on 16-9-87.

It is of course true that the purpose and object of an FIR is to set criminal law in motion. Its preliminary use is to contradict or corroborate the statement of the maker of the FIR. The other equally important use of FIR is to obtain earliest information of alleged criminal activity to record circumstances before there is time for them to be forgotten, or embellished. In fact, the Privy Council in AIR 1945 18 (Privy Council) observed that the object of the provisions of Section 154, Cr. P. C. as to an information report (commonly called first information report) is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished. It also controls and checks subsequent development of the prosecution story.

Importance of prompt despatch of FIR from the police station to the Judicial Magistrate and also to the office of the Superintendent of Police of the district has been highlighed by the Supreme Court in paragraphs 10-A and 11 of its decision in Bir Singh and Others Vs. State of Uttar Pradesh, . Ultimately, in paragraph 11 of the said decision the Supreme Court observed that having regard to the evidence in that case their Lordships felt that the possibility of the FIR having been ante-timed has not been safely excluded and this circumstance is also sufficient to throw doubt on the prosecution case.

Again in Ishwar Singh Vs. State of U.P., . it was observed that the extraordinary delay in sending the FIR is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence.

In that case Supreme Court further observed that suspicion hardens a definite possibility when the case made in Court differs at least in two very important particulars from that narrated in the FIR. In such a case, the evidence of the eye-witnesses "cannot be accepted at its face value".

It appears from the narration of facts given in the aforesaid case that the prosecution case in that case was that FIR was lodged at 9.05 a.m. on 14-2-73 and was sent out from the Police Station the next day i.e. 15-2-73 and was sent time as to when it was despatched was not stated. Supreme Court further found from the record that the Magistrate received it in the morning of February 16. The Court of Magistrate was nearby which makes it difficult to understand why the same was sent to him about 2 days after its stated hour of receipt at the police station. In these circumstances Supreme Court observed in paragraph 5 as follows:

"Section 157 of the Code of Criminal Procedure, 1898 as well as of 1973 both requires the first information report to be sent forthwith to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, as Mr. Antony suggested, that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence"

Assam Police Manual also provides that soon after the FIR is registered, the same shall be forwarded to the Magistrate competent to take cognizance of the offence.

In the instant case the FIR was registered about 3 days after the occurrence and after registration of the same after such inordinate delay, police took further 4 days'' time to produce it before the nearest Magistrate. In somewhat similar circumstances, Delhi High Court in Mahabir Singh Vs. State, held that non-compliance of Section 154 and 157, Cr. P. C. or the Punjab Police Rules, does not constitute a ground to throw away a prosecution case but it does emerge as a factor to be reckoned while appreciating the entire evidence. Its non-observance cast some shadow on the case obviously to its development, because of the adverse inference. It, of course, depends upon the facts of a particular case.

But when the delay is inordinate coupled with the fact that the incident occurred during night at or about 9 p.m. it becomes highly doubtful as to whether anybody at all saw the occurrence or whether the assailant could be correctly identified by the witnesses as claimed in the FIR or in the evidence.

Likewise Supreme Court again emphasised the need for prompt despatch of the FIR to the Magistrate and suspicion that is likely to be created by inordinate delay in receipt of FIR by the Judicial Magistrate concerned in Datar Singh Vs. The State of Punjab, and State of Punjab Vs. Tarlok Singh, .

17-A. That apart, there was a delay of about 3 days in lodging the FIR. The delay of 3 days in lodging the FIR specially in a case of murder is surely inordinate, inasmuch as, the murder cases usually rest, by and large, on oral testimony. When a prosecution case is based entirely on oral testimony, it is expected that FIR will be lodged at the earliest opportunity before there is time for deliberation and for making suitable embellishment.

In Thulia Kali Vs. The State of Tamil Nadu, while dealing with somewhat a similar case, Supreme Court observed that first information report in criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be over estimated from the stand point of the accused. The object of insisting upon lodging of the report with the police in respect of a commission of an offence is to obtain early information regarding the circumstance in which crime was committed, the names of actual culprits and the part played by them as the names of eye-witnesses present at the scene of occurrence. The delay in lodging the FIR quite often results in embellishments which is a creature of after- thought. On account of delay the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging the FIR should be satisfactorily explained. In that case the occurrence was not reported for more than 20 hours after the occurrence though the police station was only two miles from the place of occurrence and in such circumstances the Supreme Court found it unsafe to base conviction upon such evidence.

Apart from serious contradiction appearing in the evidence of the eye-witness, we find that there was delay of about 3 days in lodging the FIR after the occurrence and sending of the FIR to the Magistrate was also delayed for about 4 days, and hence it is absolutely unsafe to base conviction of the appellant on such evidence.

In the aforesaid circumstances, we find that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. In view of the doubt created by the aforesaid circumstances, we find it very difficult to sustain the conviction of the appellant on a serious charge like that of murder.

In the result, we allow the appeal and set aside the impugned judgment. We further direct that the appellant be set at liberty forthwith.