The State Of Madhya Pradesh vs Ratan Singh

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1034 OF 2013

State of M.P. .. Appellant Versus Ratan Singh & Ors. .. Respondents

JUDGMENT

Mohan M. Shantanagoudar, J.

1. This appeal is directed against the judgment dated

03.02.2010 passed by the High Court of Madhya Pradesh, Bench

at Gwalior in Criminal Appeal No. 599 of 2001. The High Court

while allowing the appeal had acquitted the accused and set

aside the judgment dated 07.11.2001 passed by the Additional

Sessions Judge, Sironj, District Vidisha in Sessions Trial No.

73/92 convicting the four respondents for the offences

punishable under Sections 302, 324 and 323 read with Section

34 of the Indian Penal Code (for short ‘the IPC’).

2. The case of the prosecution in brief is that there was a

dispute in respect of a pathway between the deceased (Devi 2

Singh) and Salag Ram. In order to resolve the dispute, the

jurisdictional Tehsildar with the help of others got measured the

place and found that the deceased had closed the way and

consequently the way was got opened. However, the

misunderstanding in respect of the earlier dispute continued. At

about 9.00 am on 30.08.1991, 18 persons including the

respondents, formed themselves into an unlawful assembly and

broke into the residential house of the complainant - Khilan

Singh in order to cause injury to Devi Singh. The accused were

carrying farsi (sharp edged object), lathis and other weapons.

They dealt blows on the head of Khilan Singh, as a result of

which he fell down. At that juncture, the deceased, Devi Singh,

intervened and he was also assaulted by the accused persons

with farsi and lathis, as a result of which the deceased fell down

on the ground. The First Information Report (for short ‘the FIR’)

came to be lodged at about 8.30 pm on 30.08.1991. The

charge-sheet was filed for various offences including the offence

under Section 302 read with Section 149 of the IPC. As

mentioned supra, the Trial Court convicted the respondents/four

accused, namely, Ratan Singh S/o Gulab Singh, Chandan Singh

S/o Gulab Singh, Salag Ram S/o Mohan Singh and Ramesh S/o

Aman Singh for charges levelled against them and sentenced 3

them to undergo imprisonment for life. The appeal filed by the

convicted accused before the High Court was allowed and they

were acquitted vide the impugned judgment. Hence, this appeal

by the State.

3. Learned Advocates on both sides argued in support of their

respective contentions. Both of them have taken us through the

evidence on record. In order to satisfy our conscience and as

there were divergent findings, the evidence on record is

considered at length.

4. To begin with, though the incident has taken place at about

9.00 am on 30.08.1991 and though the names of all the 18

persons were known to the complainant - Khilan Singh,

absolutely no valid reason was forthcoming on record as to why

there was a delay in lodging the FIR. The Courts generally will

not disbelieve the version of the eye witnesses even if there is

some delay in lodging the FIR, if the versions of the eye witnesses

are reliable and trustworthy. However, the delay needs to be

explained. This Court, in Apren Joseph v. State of Kerala, (1973)

3 SCC 114, emphasised that since a promptly filed FIR reflects

reduced chances of embellishment, fabrication or distortion in

memory, in cases of delay in filing the FIR it is important to

assess the explanation therefore, to look for possible ulterior 4

motives, and to assess its effect on the credibility of the

prosecution version. The following observations of the Court are

pertinent in this regard:

“11. Now first information report is a report relating to the commission of an offence given to the police and recorded by it under Section 154, CrPC As observed by the Privy Council in K.E. v. Khwaja, [AIR 1945 PC 18 : ILR 1945 Lah 1 : 71 IA 203] the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eye witness. First information report under Section 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or before the informant's memory fades. Undue unreasonable delay in lodging the FIR, therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case.” (emphasis supplied) 5

From the observations quoted above, it is also evident that there

is no hard-and-fast rule which can be applied to determine the

effect of delay in filing the FIR, and the Court is duty-bound to

determine whether the explanation afforded is plausible enough

based on the given facts and circumstances of each case. A

similar view was taken by this Court in Ram Jag v. State of U.P.,

(1974) 4 SCC 201, wherein this Court observed as follows:

“16. … It is true that witnesses cannot be called upon to explain every hour's delay and a common sense view has to be taken in ascertaining whether the first information report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution.” (emphasis supplied)

5. In the matter on hand, the distance of the Police Station

from the house of the complainant is only 5 kms. PW-9,

Gangola, the Chowkidar of the village was present in the

village. Patwari was also present in the village. From the 6

evidence of the eye witnesses we found that the FIR was lodged

after due consultation and deliberations among the witnesses.

PW-9 admits in Paragraph-7 of his cross-examination that the

FIR came to be lodged by Khilan Singh after due consultation

with him and others in the village. He admits in the evidence

that the deceased, Devi Singh, was very much alive at least till

8.30 pm on that day and his information was recorded by the

Police prior to the FIR on hand (Ext.D/3). The FIR lodged by

Devi Singh, which was prior in time and which we feel, would

have been the most important document in this case, has been

suppressed by the prosecution. The prosecution should have

come before the Court with clean hands. Since, Ext. D/3

lodged at 8.30 pm on the date of the incident was later in point

of time as compared to the suppressed information lodged by

Devi Singh before his death, Ext.D/3 cannot be considered as

the FIR. At the most, it can be considered as a statement of

Khilan Singh recorded under Section 161 of the Code of

Criminal Procedure. It is a clear case of suppression of earliest

information which was of vital importance. As emphasised by

this Court in Amitbhai Anil Chandra Shah v. Central Bureau of

Investigation, (2013) 6 SCC 348, only the earliest or the first

information in regard to the commission of a cognizable offence 7

satisfies the requirements of Section 154, and consequently

there cannot be a second FIR. Rather it is absurd or ridiculous

to call such information as second FIR. In the case of

Subramaniam v. State of T.N., (2009) 14 SCC 415, this Court

observed that if an FIR is filed after recording the statement of

the witnesses, such second information would be inadmissible

in evidence. Moreover, in Nallabothu Ramulu v. State of A.P.,

(2014) 12 SCC 261, the Court was of the view that the

non-treatment of statements of injured witnesses as the first

information cast doubt on the prosecution version.

Thus, not only was there a delay in filing of the FIR

(which remained unexplained) which was taken as the basis of

the investigation in this case, but also there was a wilful

suppression of the actual first information received by the

police. These factors together cast grave doubts on the

credibility of the prosecution version, and lead us to the

conclusion that there has been an attempt to build up a

different case for the prosecution and bring in as many

persons as accused as possible.

6. Additionally, the so-called eye witnesses to the incident have

described different places as the scene of offence. None of the eye

witnesses are consistent so far as the scene of offence is 8

concerned. This means that each of the eye witness must have

allegedly seen the incident at different places and happening in a

different manner. The suppression of the actual FIR, coupled

with the conflicting versions of the so-called eye witnesses

relating to different scenes of offence and different stories

collectively would reveal that the prosecution wanted to suppress

and has suppressed the real incident and culpability of real

culprits. The origin and genesis of the prosecution is clearly

suppressed in the case.

7. All the eye witnesses have deposed that 18 accused have

assaulted the deceased mercilessly by using farsi and lathis.

Curiously, the deceased had sustained only the following

injuries:

“(i) Incised wound on the left parietal region of skull size 2 ½ x ½ x ½ inches.

(ii) incised wound on the right leg size 1 1/3 x 1/3 inches;

(iii) an abrasion on left forearm size 1 ½ x 1 inches; and

(iv) haematoma size 9 x 7 inches”.

The same is clear from the evidence of the Doctor, PW-25,

who conducted the autopsy. If really 18 persons had caused

injuries on the deceased by deadly weapons like farsi, lathis etc.,

certainly umpteen injuries should have been received by the 9

deceased. But, except the aforementioned four injuries, no other

injury has been found on his body. Out of the four injuries

sustained by the deceased, only one is on a vital portion of the

body, i.e. on the head, i.e. an incised wound on the left parietal

region measuring 2 ½ x ½ x ½ inches. The other three injuries

are simple in nature. The Trial Court has disbelieved the version

of the eye witnesses and has acquitted 14 persons out of the 18

accused. Surprisingly, the Trial Court has equated the number

of accused persons to the number of injuries, inasmuch as it has

found that the existence of four injuries implies the involvement

of four assailants, which view cannot be sustained. The Trial

Court has also not assigned any reason as to why it has

concluded only against the four respondents herein and as to

why it has acquitted the remaining 14 accused. No specific

acceptable reasons are assigned by the Trial Court, for convicting

four respondents herein. The evidence of the eye witnesses

appears to be uniformly ambiguous and highly vague with

respect to all the accused. As mentioned supra, each of the eye

witnesses have deposed about a different scenes of offence and

different stories, though the incident has taken place at only one

place.

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8. The High Court in its judgment has detailed a number of

contradictions in the evidence of the eye witnesses and major

omissions which were overlooked by the Trial Court.

9. For example, PW-21, the wife of the informant, has deposed

that all the accused persons caused injuries to the deceased Devi

Singh and the complainant Khilan Singh. However, in the next

paragraph itself, she has deposed that she was inside her house

when the incident took place. Later she came out of the house

and saw the incident thereafter. She has denied the suggestion

that the incident occurred inside her house and specified that

she never gave such a statement before the Police. Said

contradiction is marked as Ext.D/11. Marshalling her evidence,

the High Court, in our considered opinion, rightly disbelieved the

version of PW-21 by describing her as untrustworthy.

10. PW-18, Prem Singh, has deposed that the informant and the

deceased were lying in an injured condition on the floor at the

door of the house of the informant. He came to know about the

incident only after he arrived at the house of Khilan Singh and

saw the dead body lying just outside the door. This is at odds

with the deposition of PW 22, according to whom the incident has

occurred inside her house. Lastly, in Paragraph 8 of his

evidence, PW -18 has deposed that he did not see the incident 11

which occurred inside the house of Khilan Singh. Said

contradiction is marked as Ext.D/10. The High Court has

meticulously evaluated the evidence of the other eye witnesses,

namely, PW-11, 12, 8 and 22 also. The contradictory versions of

all the eye witnesses have been highlighted by the High Court,

while coming to its conclusion.

11. The sum and essence of the case of the prosecution as

found in the charge-sheet was that the incident happened inside

the house of the complainant Khilan Singh. However, the

witnesses have tried to improve the case of the prosecution by

deposing that the incident has occurred outside the house of

Khilan Singh and that they have seen the incident. PW-12 has

gone to an extent of deposing that none of the accused including

the respondents entered the house of Khilan Singh.

12. Thus, on a re-evaluation of the material on record by us, we

find that the High Court being the First Appellate Court, by

meticulously scanning all the evidence in great detail, has rightly

concluded that the prosecution has not proved its case beyond

reasonable doubt against the respondents. The evidence of the

prosecution is full of embellishment, fabrication, distortion and

suppression of true story.

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13. We find that the view taken by the High Court is one of the

possible views in the facts and circumstances of the case. There

is no reason to disagree with the reasons assigned and the

conclusions arrived at by the High Court, more particularly when

the evidence of all the eye witnesses is inconsistent, not cogent

and unreliable. Hence, no interference is called for.

14. Before parting with the matter, we would also like to observe

that though the Trial Court framed charges against the accused,

it has at the same time committed an error by framing issues for

determination, which is solely in the realm of civil matters. Under

S. 228 of the Code of Criminal Procedure, upon being satisfied of

the existence of ground for presuming that the accused has

committed an offence exclusively triable by the Sessions Court,

the Sessions Judge is required to frame in writing a charge

against the accused. If the concerned offence is not exclusively

triable by the Sessions Court, the Judge may frame the charge

and transfer the case for trial by the appropriate Magistrate. On

the other hand, framing of issues is required to be done by the

Civil Court at the first hearing of a suit, as detailed in O. XIV, R. 1

of the Code of Civil Procedure. This has to be done after

determining the material propositions of fact or law upon which 13

the parties are at variance, having gone through the plaint and

written statement, if any.

Thus, there is no scope for framing of issues in a criminal

trial. Ordinarily, such conduct of the Trial Court would

necessitate remanding the matter for trial, but given that in the

instant matter, the Court also proceeded to frame charges against

the accused and to give findings on the same in order to record a

conviction, and given that we are inclined to affirm the decision of

the High Court on merits, to set aside the conviction of the

respondents, we do not find it necessary to remand the case back

for trial.

15. The appeal is accordingly dismissed.

…………………………………….….J. [N.V. RAMANA]

………………………………………..J. [MOHAN M. SHANTANAGOUDAR]

New Delhi;

September 05, 2018.