State Of M.P vs Laakhan @ Lakhan

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 117 OF 2003

MOTILAL AND ANR. ... Appellant(s)

Versus

STATE OF RAJASTHAN ... Respondent(s)

JUDGMENT

Dr.ARIJIT PASAYAT,J.

Challenge in this appeal is to the judgment of a Division Bench of the

Rajasthan High Court, Jaipur Bench holding the appellant guilty of offence

punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860

( in short 'IPC'). Eight persons faced trial for allegedly committing murder of one

Gyan Chand (hereinafter referred to as the 'deceased') on 11.11.1993 which

happened to be on the election day for the one Assembly election constituency. One

of the accused persons was acquitted by the trial court and seven persons were

convicted in terms of Section 302 read with Sections 149 and 148 of the Indian

Penal Code, 1860 ( in short 'IPC'). They were also convicted of some minor

offences. During the pendency of the appeal before the High Court, one of the

accused-

-2- appellants died. By the impugned judgment three of the appellants before the High

Court were acquitted. Two persons were convicted in terms of Section 302 read

with Section 34 while in case of one accused, the conviction was altered to Sections

324 and 341 IPC. He was sentenced to undergo imprisonment for the period of

custody already undergone.

The prosecution version primarily rested on the evidence of three eye-

witnesses. One of them was the mother of the deceased and the other two were the

injured witness. The accused persons pleaded innocence. According to them the

deceased and two purported eye witnesses were causing disturbance on the polling

day and therefore the members of the public were agitated and in the process they

may have been beaten; but because of political rivalry the accused persons were

falsely implicated. The trial court placed reliance on the three eye-witnesses and

recorded conviction and imposed sentence as aforesaid. In appeal,, the stand

basically taken was that there was ante dating of the first information report. The

report was purportedly lodged on 11.11.1993 at about 10.50 a.m. The Elaqa

Magistrate received it on 16.11.1993. The delay has not been explained. Apart from

that the place of incident has been shifted. It was also pointed out that the ante

dating of

-3-

the FIR it is evident from the fact that the admitted case of the prosecution is that

the FIR was lodged on 11.11.1993 at 10.50 a.m., but strangely, the inquest report

shows that the inquest was started at 10.30 a.m. The stand of the State before the High Court was that merely because there was delay in despatch of the FIR to the

Elaqa Magistrate that cannot throw any doubt on the credibility of the prosecution

version. There were two injured witnesses even if there was a discrepancy between

the time indicated in the FIR and the inquest, that was a lapse on the part of the

Investigating officer and it cannot be a factor in favour of the accused persons.

The High Court accepted the stand of the State and recored the

conviction as afore noted.

Learned counsel for the appellants submitted that the prosecution

version is so brittle that no credence can be put on it. There was not one but

several factors which show that the prosecution had not come out with clean hands.

The High Court should not have brushed aside the discrepancy in time of the

lodging of the FIR and the conduct of the inquest report. The fact that there was

considerable delay in sending the report to the Elaqa Magistrate and the absence of

blood on alleged spot of incident have great relevance. According to the

prosecution version, the deceased suffered 19 injuries but the blood stains which

-4-

were supposedly collected from the spot of occurrence were so small that same

could not be sent for a foresenic examination.

Learned counsel for the respondent-State on the other hand supported

the judgment. It is his stand that even if there was a deficiency in the investigation

that cannot be a factor in favour of the accused.

It is true as observed by the High Court that if the FIR is timely lodged

and investigation is undertaken immediately, in a given case, the delayed receipt of

the report by the Elaqa Magistrate would not be fatal to the prosecution. It would depend upon the facts of each case. There cannot be any generlisation. There is a

purpose behind the enactment of Section 157 of the Code of Criminal Procedure,

1973 ( in short the 'Code'). The statutory requirement that the report has to be sent

forthwith that itself shows that the urgency attached to the sending of the report.

In a given case it is open to the prosecution to indicate reasons for the delayed

despatch or delayed receipt. This has to be established by evidence. Apart from

that, the unexplained discrepancy in the timings as recorded in the inquest report

and the FIR has to be kept in view. It is prosecution version that the FIR was

lodged at 10.50 a.m. If was so it was required to be explained by investigating

officer by plausible evidence on record, as to

-5-

how the inquest was undertaken at 10.30 a.m. at a point of time when the FIR was

not not in existence. The High Court has lightly brushed aside the plea of the

appellants that it may be the lapse on the part of the investigating officer. It is true

that a faulty investigation cannot be a determinative factor and would not be

sufficient to throw out a credible prosecution version. But in the instant case there

is no explanation offered even to explain the discrepancies cummulative effect of

the factors highlighted above would show that the prosecution has miserably failed

to establish the accusations. The appeal succeeds. The bail bonds executed to give

effect to the order of bail dated 12.7.2004 shall stand discharged.

...................J. (Dr. ARIJIT PASAYAT) ....................J. ((ASOK KUMAR GANGULY)

New Delhi, May 05, 2009.

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 118 OF 2003

NAND KISHORE @ NANDA ... Appellant(s)

Versus

STATE OF RAJASTHAN ... Respondent(s)

ORDER

In view of judgment passed in Crl. Appeal No. 117/2003 this appeal

deserves to be succeed which we direct.

...................J. (Dr. ARIJIT PASAYAT)

....................J. ((ASOK KUMAR GANGULY)

New Delhi, May 05, 2009.

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 119 OF 2003

STATE OF RAJASTHAN ... Appellant(s)

Versus

PHOOL CHAND AND ORS. ... Respondent(s)

ORDER

In view of judgment passed in Crl. Appeal No. 117/2003 this appeal

deserves to be dismissed which we direct.

...................J. (Dr. ARIJIT PASAYAT)

....................J. ((ASOK KUMAR GANGULY)

New Delhi, May 05, 2009.

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 120 OF 2003

STATE OF RAJASTHAN ... Appellant(s)

Versus

MOTI LAL AND ORS. ... Respondent(s)

ORDER

In view of judgment passed in Crl. Appeal No. 117/2003 this appeal

deserves to be dismissed which we direct.

...................J. (Dr. ARIJIT PASAYAT)

....................J. ((ASOK KUMAR GANGULY)

New Delhi, May 05, 2009.