Penal Code, 1860: s. 302 – Murder – Prosecution case that previous enmity between the accused persons and the complainant – Accused no. 11 assaulted the complainant and thereafter, the complainant lodged an FIR – Said accused then alongwith the other accused armed with deadly weapons formed an unlawful assembly, and assualted the victim-complainant’s father along with the prosecution witnesses, resulting in the death of the victim – Conviction of the accused persons for the offences punishable u/s.
302 along with the other offences and sentenced to life imprisonment by the courts below – Sustainability of – Held: Delay in lodging of the FIR by the injured person not explained at all – Prosecution attempted to supress the real genesis of the incident – There was non-explanation of the injuries sustained by the accused, which cannot be considered to be minor or superficial – Prosecution supressed the information that accused informed the police that he was assaulted by the complainant, thus, the said accused entitled to the benefit of doubt – As regards the remaining accused persons, their names were not mentioned in the merg report which was lodged prior to the lodging of FIR, in the inquest panchnama and spot panchnama – Taking into consideration the delay in lodging the FIR, with the circumstance of their names not being mentioned in the contemporaneous documents, the possibility of the said accused being falsely implicated cannot be ruled out – Their conviction was based only on the oral testimony of the interested witness without sufficient corroboration, thus, would not be sustainable – Judgment and order passed by the High Court set aside – Evidence. Allowing the appeals, the Court
HELD: 1.1 Believing the contents of the FIR that the incident has taken place at around 08.30 PM and that the injured persons had reached the Bazar at around 10-11 PM where they were informed that they could not be treated unless a report was lodged, a further delay of around four to five hours in lodging the FIR has not been explained. The distance between the Bazar and the Police Station is approximately 15 Kms. It has come on record that there is an all-weather road connecting the two places. As such, at the most, it would take around 30-40 minutes to reach the Police Station from the Bazar. This delay of four hours in lodging the FIR is not at all explained. [Para 25][286-F-G]
1.2 Undisputedly, the injuries sustained by accused No. 11 cannot be considered to be minor or superficial. The witnesses are also interested witnesses, inasmuch as they are close relatives of the deceased. That there was previous enmity between the two families, on account of election of Sarpanch, has come on record. Previous enmity is a double-edged sword. On one hand, it can provide motive and on the other hand, the possibility of false implication cannot be ruled out. [Para 28][288-D-E]
1.3 Much prior to lodging of the FIR at 03.15 AM on 4th November 2006 by K, the Police had taken accused No. 11 for medical examination. The memo forwarding accused No. 11 for medical examination to Medical Officer mentions that accused No. 11 had informed the police that at around 08.30 PM, he was assaulted by PW-1. Undisputedly, the prosecution has suppressed information with regard to the said incident. The prosecution has also suppressed the FIR lodged by PW-1. It is thus clear that the prosecution has attempted to suppress the real genesis of the incident. Taking into consideration this aspect of the matter, coupled with the non-explanation of the injuries sustained by accused No. 11, accused No. 11 is entitled to benefit of doubt. [Para 29][288-E-G]
1.4 No doubt that in each and every case, delay in lodging the FIR would not be fatal to the prosecution case. It will depend upon facts and circumstances of each case. In the present case, assuming that the incident had taken place at 08.30 PM and the injured persons were at the Bazar between 10-11 PM, and taking into consideration that the distance between the Bazar to the Police Station is 15 Kms., a delay of four hours in lodging the FIR would cast a serious doubt on the genuineness of the prosecution case. It becomes more glaring since accused No. 11 had, in any case, informed the police about the incident prior to 11.45 PM. The suppression of the FIR lodged by him with respect to the attack on him by PW-1, so also the suppression of the FIR lodged by PW-1 against accused No. 11, adds to the doubt. [Para 30][289B-D]
1.5 PWs 2 and 9 are injured witnesses. As such, their presence cannot be disputed. However, in case of proven previous enmity, a possibility of false implication cannot be ruled out. In the instant case, it would be seen that the entire family of accused No. 12 has been roped in. Though PW-2 has identified and named the accused in her cross-examination, she has stated that, though she recognized the relatives of the accused persons, she does not remember their names. As such, the possibility of implicating the entire family of accused no.12 cannot be ruled out. [Para 34][291-B-C]
1.6 The names of accused no.8, 9 and 10 are not mentioned in the merg report, which was lodged prior to the lodging of FIR, so also their names are not found in the inquest panchnama and spot panchnama. Taking into consideration the delay in lodging the FIR, with the circumstance of their names not being mentioned in the contemporaneous documents, the possibility of the said accused being falsely implicated cannot be ruled out. The conviction of these accused purely on the basis of oral testimony of the interested witnesses, without sufficient corroboration, would not be sustainable. [Para 35][291-C-E]
1.7 The prosecution has examined PW-3, PW-5, PW-6 and PW-8, none of whom have supported the prosecution case. According to PWs 2, 9 and 13, it was the witness PW-3 who had arranged for the tractor to take the injured persons to the Bazar. However, he has stated that though PW-2 came to his place to inform him about the incident, she had not informed him as to which of the accused had assaulted the deceased and the injured persons. Thus, the said appellants would also be entitled to benefit of doubt. [Para 36][291-E-F]
Lakshmi Singh and Others v. State of Bihar (1976) 4 SCC 394; State of Rajasthan v. Madho and Another (1991) 2 Supp SCC 396; State of M.P. v. Mishrilal (Dead) and Others (2003) 9 SCC 426; Nagarathinam and Others v. State (Represented by Inspector of Police) (2006) 9 SCC 57 : [2006] 3 SCR 833; Ramashish Ray v. Jagdish Singh (2005) 10 SCC 498; Ramesh Baburao Devaskar and Others v. State of Maharashtra (2007)
13 SCC 501 : [2007] 11 SCR 197; Vadivelu Thevar v. The State of Madras [1957] SCR 981 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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