Shivlal & Anr vs State Of Chhattisgarh

Shivlal & Anr. ...Appellants

Versus

State of Chhattisgarh ...Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order

dated 25.8.2006 of the High Court of Chhattisgarh at Bilaspur in

Criminal Appeal No.973 of 2000, wherein the High Court has

confirmed the conviction and sentence, so far as the present appellants

are concerned, awarded by the Additional Sessions Judge, Bemetara,

Durg dated 31.3.2000 in Sessions Trial No.147 of 1999 by which the

appellants stood convicted under Section 148 of the Indian Penal Code,

1860 (hereinafter called "IPC") and sentenced to undergo R.I. for two

years and pay a fine of Rs.200/-, in default of payment of fine to

further undergo R.I. for one month. Sukhsagar, appellant no.2 stood

convicted under Section 302 IPC and Shivlal, appellant no.1 stood

convicted under Section 302 read with Section 149 IPC and both were

sentenced to undergo imprisonment for life and pay a fine of Rs.500/-

each, in default of payment of fine to further undergo R.I. for two

months. All the sentences had been directed to run concurrently.

2. Facts and circumstances giving rise to this appeal are:

A. According to the prosecution, the appellants along with 13 other

accused persons armed with deadly weapons, with a common object of

murdering Shankar Satnami attacked him on 12.10.1997 at about

afternoon near the house of Tijwa Sahu when Shankar Satnami,

deceased, was proceeding towards a tank for taking bath along with his

wife Sukhbai (PW.9) and his grandson Anil, as a result of which he

sustained numerous injuries and died on the spot.

B. The incident had occurred in the outskirts of the village. Sukhbai

(PW.9) came back to the village and when she informed Beer Singh

(PW.1) about the incident, he told her that he himself witnessed the

incident and came back to the village after the incident was over.

Ramkhilawan (PW.7) went to the Police Station at a very far distance

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and gave oral information about the incident to the police. Instead of

lodging a formal FIR on the basis of oral information by Ramkhilawan

(PW.7), the police only registered a complaint (Dehati Nalish). Mr.

J.S. Dhurve, I.O. (PW.12) proceeded for the village Dara. After

reaching the place of occurrence, he met Beer Singh (PW.1) who

narrated the incident to him. It was on the basis of this information

Case Crime No. 236/97 was mentioned in the aforesaid complaint

(Dehati Nalish) mentioning offences under Sections 147, 148, 149 and

302 IPC.

C. After reaching the place of occurrence, the I.O., Mr. J.S. Dhurve

(PW.12) performed the inquest over the body of the deceased vide

Ex.P-6 in the presence of the witnesses and sent the body for autopsy to

Govt. Hospital, Bemetara, where Dr. K.L. Dhruv (PW.14), conducted

the post mortem and submitted the report Ex.P-15. Mr. J.S. Dhurve,

S.I. (PW.12), prepared the Site plan Ex.P-6 and another Site plan

Ex.P.13-A was prepared by the Halka Patwari, Tuganram Sahu. The

accused were apprehended and at their disclosure statements, blood

stained weapons were recovered. Plain soil and blood stained soil was

taken into possession from the place of incident. Blood stained

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underwear, Lungi and pair of slippers and a knife were seized from the

spot vide Ex.P-29.

D. The weapons used for commission of the offence seized from the

accused persons were sent for examination, first to the Doctor who

opined that the injuries to the deceased could be caused by the

recovered weapons. The said weapons were subsequently sent for

chemical examination along with plain and blood stained soils. The

Forensic Science Laboratory vide its report Ex.P-9 confirmed the

presence of blood over all those articles.

E. After completing investigation, chargesheet was filed against

fifteen accused persons in the Court of Judicial Magistrate, First Class,

Bemetara, who in turn committed the case to the Court of Sessions

Judge, Durg. The Trial Court framed the charges under Sections 147,

148 and 302/149 IPC against all the accused persons who abjured their

guilt.

F. The prosecution in order to establish the charges against the

accused persons, examined 13 witnesses and after completion of their

depositions, the court examined all the accused persons under Section

313 of the Code of Criminal Procedure, 1973 (hereinafter called

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"Cr.P.C."), wherein they denied their involvement and submitted that

they had falsely been implicated because of the village factional

rivalry. The Trial Court vide judgment and order dated 31.3.2000

acquitted nine persons of all the charges giving them benefit of doubt,

however, convicted and sentenced the remaining six accused persons

including the appellants.

G. The said six convicts preferred Criminal Appeal No.973 of 2000

in the High Court of Chhattisgarh at Bilaspur wherein the High Court

vide impugned judgment and order acquitted four persons, however,

upheld the conviction and sentence of the two appellants as awarded by

the trial Court.

Hence, this appeal.

3. Ms. Tanuj Bagga, learned Amicus Curiae appearing for the

appellants, has submitted that the dispute arose because of a factional

rivalry in the village and unending dispute over the land meant for

community use on which Shankar Satnami, deceased, had illegally

encroached upon. In the oral complaint made by Ramkhilawan

(PW.7), not even a single accused had been named. There had been no

eye-witness except Sukhbai (PW.9) whose evidence itself is not worth

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reliance. The courts below erred in convicting the appellants on the

basis of the evidence on which a large numbers of accused had been

acquitted. There had been material irregularities in the trial itself as no

report as required under Section 157(1) Cr.P.C., has been sent to the

Ilaqa Magistrate which was mandatory. The High Court brushed aside

all legal submissions advanced on behalf of the appellants. Once the

High Court came to the conclusion that recovery of weapons itself was

doubtful, the appellants were equally entitled for benefit of doubt.

Both the appellants have served for more than 11 years and are still in

jail. The appeal deserves to be allowed.

4. Mr. Atul Jha, learned counsel appearing for the State, has

opposed the appeal contending that there are concurrent findings of fact

by the two courts which do not require any interference by this Court.

In case, the provisions of Section 157(1) Cr.P.C. had not been

complied with, it may be treated as a lapse on the part of the

Investigating Officer and should not adversely affect the prosecution

case. The recovery of weapons had been made on the basis of

disclosure statements made by the appellants and sent for chemical

analysis. The courts below have considered the issue elaborately and

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does not require further consideration by this Court. The appeal lacks

merit and is liable to be dismissed.

5. We have considered the rival submissions made by learned

counsel for both the parties and perused the record.

This is a unique case wherein, admittedly, proceedings/

investigation had been conducted without observing the provisions of

the Cr.P.C. Sukhbai (PW.9) is the sole eye-witness, however, she

being illiterate and rustic village woman, does not have any

idea/impression of time and distance. In this case, two other persons,

namely, Beer Singh (PW.1) and Ramkhilawan (PW.7) also claimed to

be the eye-witnesses of the incident. However, Beer Singh (PW.1) has

been treated to be the author of the FIR, though no formal FIR has been

lodged in respect of the incident. Ramkhilawan (PW.7) turned hostile

and it is he, who reached the police station and informed the police

about the incident. It is on this information, the police recorded the

"Dehati Nalish" and without lodging a formal FIR, proceeded to the

place of incident. Admittedly, no copy of the FIR has been sent to the

Ilaqa Magistrate, which is mandatory under Section 157 Cr.P.C. Mr.

J.S. Dhurve, the Investigating Officer (PW.12), has explained that

information about the incident was given by Ramkhilawan (PW.7) in

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the police station, however, no FIR was lodged formally. He

immediately rushed to the place of incident apprehending further

incidents because of factional rivalry in the village. The I.O. (PW.12)

has further deposed that on reaching the place of occurrence, Beer

Singh (PW.1) met him and it was on his statement, FIR was lodged.

However, he admitted that the said document did not contain signature

of Beer Singh (PW.1).

6. Harpal Singh, Head Constable (PW.13), had deposed just

contrary to what had been stated by Mr. J.S. Dhurve (PW.12) as he

stated that FIR was lodged in the police station itself and he went along

with the Investigating Officer in the police jeep. He did not know who

was the driver of the jeep as it was being driven by a private person.

He further deposed that when they reached the place of occurrence,

dead body of Shankar Satnami, deceased was lying there and no one

else was present there. After reaching the place of occurrence, certain

people were called from the village through Chowkidar. Such a factual

situation is improbable. Dead body is not left unattended.

7. The Trial Court itself held that Sukhbai (PW.9) had enroped

certain persons in the crime falsely and disbelieving her statement to

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that extent, some accused had been acquitted by the Trial Court. Same

remained the position in appeal as disbelieving her statement, four

persons were acquitted by the High Court. The Trial Court found

improvements in her statement in court as she had not stated in her

statement under Section 161 Cr.P.C. that Sukhsagar and Shivlal,

appellants, had caused injuries to her husband Shankar Satnami,

deceased with `tabbal' and spear. Beer Singh (PW.1) claimed himself

to be the eye-witness who instead of informing any other person, went

to the village and when Sukhbai (PW.9) met him and told about the

incident, he told Sukhbai that he had also witnessed the incident. The

courts below have not given much relevance to his statement. The

Trial Court had recorded a finding that there had been material

contradictions/ improvements in the statement of witnesses. The Trial

Court held that information given by Ramkhilawan (PW.7) to the

police after reaching the police station was an FIR under Section 154

Cr.P.C. though, the High Court had taken a contrary view. There has

been serious doubt about the recovery of weapons and the High Court

has disbelieved the said recoveries. More so, there was no report of

chemical analysis that the weapons so recovered contained stains of

human blood.

9 8. While dealing with the issues, the High Court observed as under:

I. "In the instant case, admittedly the prosecution

has failed to prove that information as mandated

under Section 157(1) of the Cr.P.C. was sent to

the concerned Magistrate. We have already noted

above that from the evidence available on record

four persons had immediately gone to the police

station to lodge report but no FIR was registered

on their report."

II. "Sukhbai (PW.9) has also stated that the incident

was witnessed by Mulchand, Khilawan, Dhan

Singh and Baburam. None of the independent

witnesses has supported the case of the

prosecution. However, in her statement before

the Court she had added the name of Ganga. She

had not made any specific allegations against

appellants Hemkumar, Brijlal, Aasan and

Ashwani."

III."PW.1 Beer Singh, PW.2 Dharambai and PW.5

Ishwaribai are not the eyewitnesses according to

the case of the prosecution. However, PW.1 and

PW.2 have claimed themselves to be the

eyewitnesses and therefore, the Court below has

rightly disbelieved the account given by these two

witnesses."

IV. "Thus the evidence on which the

conviction is based is the memorandum of arrest

of the accused persons and the recovery of

weapons of offence on their statements. We find

from the evidence on record that only one witness

namely Sitaram, PW.10, the witness of

memorandum and recovery has been examined

and he has stated in his cross examination that he

was summoned by the police near the tank and

from there the dead body was taken to the school

and his signature was obtained on various

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papers for two days in the school at a time. He

has also admitted that he had encroached upon the

Government land which was grazed by the

villagers and therefore, we are of the considered

opinion that the evidence of memorandum of

the accused persons and recovery of the

weapon of offence in pursuance of the said

memorandum, does not inspire confidence."

V. "Even otherwise, there is no evidence available

on record to establish on record that the seized

weapons contained human blood."

(Emphasis

added)

9. This Court in Bhajan Singh @ Harbhajan Singh & Ors. v.

State of Haryana, (2011) 7 SCC 421, has elaborately dealt with the

issue of sending the copy of the FIR to the Illaqa Magistrate with delay

and after placing reliance upon a large number of judgments including

Shiv Ram v. State of U.P., AIR 1998 SC 49; and Arun Kumar

Sharma v. State of Bihar, (2010) 1 SCC 108 came to the conclusion

that Cr.P.C. provides for internal and external checks: one of them

being the receipt of a copy of the FIR by the Magistrate concerned. It

serves the purpose that the FIR be not ante-timed or ante-dated. The

Magistrate must be immediately informed of every serious offence so

that he may be in a position to act under Section 159 Cr.P.C., if so

required. The object of the statutory provision is to keep the Magistrate

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informed of the investigation so as to enable him to control

investigation and, if necessary, to give appropriate direction. However,

it is not that as if every delay in sending the report to the Magistrate

would necessarily lead to the inference that the FIR has not been

lodged at the time stated or has been ante-timed or ante-dated or

investigation is not fair and forthright. In a given case, there may be an

explanation for delay. An unexplained inordinate delay in sending the

copy of the FIR to Illaqa Magistrate may affect the prosecution case

adversely. However, such an adverse inference may be drawn on the

basis of attending circumstances involved in a case.

10. In the instant case, copy of the FIR was not sent to the

Magistrate at all as required under Section 157 (1) Cr.P.C. In such a

case, in absence of any explanation furnished by the prosecution to that

effect, would definitely cast shadow on the case of the prosecution.

This Court dealt with the issue in Criminal Appeal No. 1062 of 2003 in

State of Madhya Pradesh v. Kalyan Singh, decided on 26.6.2008,

wherein this Court was informed by the Standing counsel that in

Madhya Pradesh, police is not required to send the copy of the FIR to

the Illaqa Magistrate, but it is required to be sent to the District

Magistrate. It was so required by the provisions contained in

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Regulation 710 of the Madhya Pradesh Police Regulations. This Court

held that Regulation 710 cannot override the statutory requirements

under Section 157(1) Cr.P.C. which provide for sending the copy of the

FIR to the Illaqa Magistrate.

The instant appeal has come from Chhattisgarh which has

been carved out from the State of Madhya Pradesh. Learned Standing

counsel for the State, is not in a position to throw any light on this issue

at all. Thus, in such a fact-situation, we can simply hold that in spite of

the fact that any lapses on the part of the I.O., would not confer any

benefit on the accused, the case of the prosecution may be seen with

certain suspicion when examined with other contemporaneous

circumstances involved in the case.

11. In State by Inspector of Police, Tamil Nadu v. N.

Rajamanickam & Ors., (2008) 13 SCC 303, this Court dealt with a

similar case wherein a lot of lapses had been noted on the part of the

prosecution. In the said case, originally 16 persons were named in the

chargesheet out of which one had died, one had absconded and the rest

14 persons faced trial. The Trial Court convicted only six out of them.

Those six persons preferred the criminal appeal and the High Court

found that there were certain vital factors which rendered the

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prosecution version improbable. One of the factors noted was delay in

dispatch and receipt of the FIR and connected documents in the court

of Magistrate. The factional village rivalry was shown to be the cause

of concern therein also. The High Court found that evidence of some

of the prosecution witnesses lacked credibility and credence and, thus,

all the persons were acquitted. This Court dismissed the appeal of the

State observing as under:

"Delay in receipt of the FIR and the connected

documents in all cases cannot be a factor corroding the

credibility of the prosecution version. But that is not the

only factor which weighed with the High Court. Added

to that, the High Court has noted the artificiality of the

evidence of PW 1 and the non-explanation of injuries on

the accused persons which were very serious in nature.

The combined effect of these factors certainly deserved

consideration and, according to us, the High Court has

rightly emphasised on them to hold that the prosecution

has not been able to establish the accusations.

Singularly, the factors may not have an adverse effect

on the prosecution version. But when a combined effect

of the factors noted by the High Court are taken into

consideration, the inevitable conclusion is that these are

cases where no interference is called for."

(Emphasis added)

12. The case at hand is, by no means different from the case above

referred to and in the facts and circumstances of the case, we are of the

considered opinion that the appellants are entitled to the benefit of

doubt. Appeal stands allowed. The judgments and orders of the

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courts below dated 31.3.2000 and 25.8.2006 are set aside and the

appellants are acquitted. In case the appellants are not wanted in some

other case, they be released forthwith.

Before parting with the case, we would like to record our

appreciation for Ms. Tanuj Bagga, learned Amicus Curiae, for

rendering valuable assistance to the Court in spite of not having the full

documents/papers.

..............................

...J.

(P. SATHASIVAM)

..............................

...J.

(Dr. B.S. CHAUHAN)

New Delhi,

September 19, 2011

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