Gauhati High Court
Sri Bul Turi vs The State Of Assam on 20 November, 2013
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZOAM & ARUNACHAL
PRADESH)
Criminal Appeal No. 135 (J)/2010
Sri Bul Turi
- Appellant
- Versus -
State of Assam
- Respondent
PRESENT HON'BLE MR JUSTICE K. SREEDHAR RAO HON'BLE MR. JUSTICE B.D. AGARWAL Advocates present:
Amicus Curiae : Ms. R.D. Mazumdar, Advocate,
For the respondent : Mr. D. Das,
Addl. P.P., Assam
Date of hearing : 19.11.2013
Date of judgment : 19.11.2013 & 20.11.2013
JUDGEMENT AND ORDER
[ORAL]
(Sreedhar Rao, J.)
Heard Ms. R. D. Mozumdar, learned amicus curiae, and Mr. D. Das, learned Addl. Public Prosecutor, Assam.
2. The material facts of the prosecution case disclose that:
(i) The accused Bul Turi is the nephew of the deceased Milan Turi. On 23.09.2009 at about 3 pm, when the deceased was coming from the paddy fields to his house, the accused assaulted him with a chopper and caused his death. PW1 is the first wife of the deceased who noticed the incident from the residence, which is on the other side of the river. PW2 is the second wife of the deceased and PW3 is the younger brother of the deceased.
(ii) PW1 at about 4 pm went to the outpost Police Station and lodged a written complaint to the effect that she noticed the accused assaulting her husband with a chopper and after causing injuries, the accused danced by holding the chopper to celebrate his act. The outpost Police Station transmitted the written FIR to the principal Police Station and the same was received at about 8.15 am on the next day. The police of the outpost Police 2 Criminal Appeal (J) 135/2010 Station came to the scene and guarded the dead body. On the next day, after registration of the FIR, inquest is held. The dead body is sent for post mortem. Autopsy report discloses that death is on account of syncope as a result of the injuries sustained. Injury No.1 is said to be grievous in nature and sufficient to cause instantaneous death. Injuries are also said to be ante mortem and the death is homicidal. The police, after recording the evidence of the witnesses and on completion of investigation, filed the Final Report. The accused is charged for committed offence under Section 302 IPC.
(iii) The prosecution, in evidence, has examined PW1, who is the first wife of the deceased. According to her evidence, it was around 4 pm on 23.09.2009, she was at her residence, which is on the other side of the river. She noticed the accused assaulting the deceased with a chopper and, thereafter, she has given complaint to the outpost Police Station. PW1 refers to the presence of PW2 and PW3, who have witnessed the incident along with her. PW2 was said to be taking bath in the river and that she has also witnessed the incident.
(iv) The evidence of PW2 discloses that at the time of the incident, she was washing her clothes in the river and from a distance of 20/30 feet, she saw the incident that the accused assaulting the deceased with a chopper. She further states that when she went near the accused, the accused hold her hair and said that after returning from the jail, her son would be slained. PW2, being frightened, ran to her house.
(v) The evidence of PW3 discloses that at the time of the incident, he was in the house and when he came out, he saw, from a distance of about 60 feet, the accused assaulting the deceased with a chopper. His evidence further disclose that the accused chases the other two brothers PW4 and PW5, who are at the scene and those persons ran away to escape the assault.
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(vi) PWs 4 and 5 in their evidence have deposed that they were at a short distance of 50/60 meters where the accused after slaying the deceased shouted at PWs 4 and 5 and also the accused danced with the weapon after causing injuries to the deceased and those persons being frightened ran to their house.
(vii) PW6 is the scribe of the FIR. He wrote the FIR on the instruction of PW1.
(viii) Post mortem report discloses that the injuries are fatal in nature, ante mortem and the death is homicidal. Trial Court on the basis of the above evidence, convicted the accused for an offence under Section 302 IPC. Hence, this appeal.
3. The learned amicus curiae submitted the following circumstances to assail the order of conviction:
(i) There is inordinate delay in registering the FIR and submission of the same to the Magistrate. It is the version of the prosecution that the written complaint was given around 4 pm on 23.09.2009.
(ii) The distance between the outpost Police Station and the principal Police Station is about 16 km. There is no evidence that by what mode, the complaint was transmitted to the principal Police Station. There appears to be inordinate delay in receiving the complaint by the principal Police Station and the delay is about 16 hours. The delay is unexplained. There is no endorsement of the Magistrate about the time on which the FIR was received by the Magistrate. The inordinate delay creates suspicion and would lead to an inference of concoction and manipulation.
(iii) PW1 claims to be eye witness of the incident and according to her evidence, she noticed the incident from a distance of about 50 meters, i.e., about 165/170 feet and she noticed the incident from the opposite side of the
4 Criminal Appeal (J) 135/2010 bank of the river where her residence is situated. The conduct of PW1 is unnatural. She did not run towards the scene.
(iv) According to the FIR, the post incident conduct of PW1 is not properly explained by the prosecution to assess her veracity. The claim of PW1 that she could be able to see the offence at a distance of about 170 feet is incredible because normal visual range of a normal person is 100 feet.
(v) The evidence of PW1 is suspicious because she did not mention in the FIR all these things. The prosecution version discloses the veracity of the evidence of PW3 that after the murder, the accused chased other two brothers and they being afraid, came running to their houses and this was also to the knowledge of PW1. This circumstance is not mentioned in the FIR.
(vi) The evidence of PWs 4 and 5 is not consistent with PW3 and it does not corroborate the version of PW3 that after the murder, they being afraid, ran to their houses. Their evidence does not corroborate PW5, who supported the version of chasing by the accused.
(vii) It is in the evidence of PW7 that if the accused is implicated and sent to jail, all his share of property will go to the family members of the deceased. Therefore, there was every reason for the prosecution witnesses, who are related to the family of the deceased, to falsely implicate the accused.
4. In view of the above discussion, it was the stand of the prosecution that the evidence of PWs 1 to 5 are incredible and their version is an interested version only to see that the accused is falsely implicated and sent to jail to gain his property.
5. Mr. D. Das, learned Addl. Public Prosecutor, arguing for the State, submits the following circumstances to support the order of conviction:
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(i) PW1 is a eye witness to the incident and wife of the deceased.
There was no reason for PW1 to falsely implicate the accused if somebody else have caused the murder.
(ii) PWs 2 to 5 are all natural witnesses residing around the scene of offence. The non-mentioning of their names in the FIR is not fatal and not a ground to disbelieve their veracity. The contradiction in the evidence of PWs 1 to 5 are not of serious nature which can dent their veracity.
(iii) GD Entry of the outpost Police Station shows that the complaint was received at the outpost Police Station at 4 pm and it was dispatched to the principal Police Station and the distance is about 16 km and in the next day, the FIR has been transmitted to the Magistrate. There appears to be substantial negligent conduct on the part of the outpost Police Station in not sending the FIR to the principal Police Station to register the FIR at the earliest. The delay in transmission of the FIR from the outpost Police Station to the principal Police Station is not explained.
6. Upon stern consideration of the submissions made at the bar, we find that there appears to be a serious lapse in registering the FIR and forwarding the same to the Magistrate as required under Section 157 of the Code of Criminal Procedure. There is no evidence adduced to show that who was entrusted with the duty of taking the complaint to the principal Police Station and by what mode the police official reaches the principal Police Station. There is substantial delay of 16 hours in registering the FIR. We find that the investigation method adopted by the Investigating Officer is highly objectionable and imprudent.
7. Noting on the FIR by the Magistrate does not disclose the time at which the FIR is received. It appears that the Magistrate has been callous in receiving the FIR submitted by police. FIR is a sacrosanct document and the 6 Criminal Appeal (J) 135/2010 earliest information of the prosecution. In order to appreciate the sanctity of the FIR, it is necessary that the Magistrate should note the time on which FIR is received, cause of the FIR received by the Magistrate from the Police Station, one could appreciate and judge whether the time of receipt of the FIR is credible or not. Therefore, it is mandatory that all Magistrates, who receives the FIR, to make an endorsement about its receipt and time and also the person who delivered the FIR to the Magistrate by noting the constable number (buckle) of the police. Non-adherence of the above observed practice will lead to a vulnerable situation sometimes warranting an inference of judicial dishonesty. In order to protect such misgivings, it is always necessary for the Magistrate to always make a note of the date and time at which the FIR was received by him and also the name of the person, who has delivered the FIR.
8. With regard to the evidence of material circumstance of assault by the accused on the deceased, PW1 to PW5 have deposed that they have witnessed the accused assaulting the deceased with a chopper.
9. On stern scrutiny, we find that there are lots of irreconcilable discrepancies in the evidence. PW1 in the FIR does not make mention of presence of PW2 and PW3 around the scene and that they are also witness to the incident. The prosecution version discloses that there is an attempt to pad up the facts in the course of investigation. PW2 and PW5 are also shown to be witnesses to the incident, which is not reflected in the FIR. PW2 is the second wife of the deceased. PW1 and PW2 are residing together. PW3 to PW5 are brothers of the deceased. They also live in the same neighbourhood. If all the witnesses have noticed the incident, it is quite natural that PW1 should have necessarily known the said facts and should have stated in the 7 Criminal Appeal (J) 135/2010 FIR mentioning PW2 to PW5 as witnesses to the incident. Non-mentioning of such basic facts would prove fatal to the prosecution case.
10. With regard to the manner of the incident, there is discrepancy in the evidence and there is no inter-se corroboration amongst the witnesses. PW1 says that from a distance of about 170 feet, she saw the incident and accused after killing the deceased, danced with the chopper. PW2 says that she was washing clothes in the river, the accused after the assault came and hold her tough and threatened that her son would be killed after he comes out of the jail. PW3 elder brother of the deceased states that he saw the incident from the distance of 4 - 5 feet and the accused after assaulting the deceased tried to assault PW4 and PW5 and in the process, they ran away to escape. PW4 does not corroborate PW3 on this aspect. His evidence disclose that he, at a distance of 9 feet, noticed the incident, got threatened and ran away but the fact that the accused threatened him and chased him is not stated by PW3. PW5, however, states that the accused chased him and he ran away.
11. The material facts adduced by the prosecution are very prominent and there should not have been any divergent version in respect of a prominent fact and there is no inter se corroboration. Therefore, we are of the opinion that it is not safe to place reliance upon the evidence of the prosecution witnesses. The evidence of PW1 to PW5 shows that they are witnesses to the incident. More so, in the context of delay in registering the FIR, there could be a possibility of concoction of the eye witnesses. It is in the evidence of PW7 that the family of the deceased would be benefited if the accused is convicted and sent to jail as the property of the accused will come to the family of the deceased. In the backdrop of such material, it cannot be said that the defence story of implicating the accused falsely is likely to be brushed aside.
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12. Like in this case, in most of the cases we have come across, investigation is murky and shrouded with suspicion. Investigation is mechanical and lopsided. Cryptic FIRs are registered in a mechanical way. When the informant is a witness to the incident or has better information regarding commission of an offence relating to motive, the actual incident and the witnesses present, the Investigating Officer should take care to see that all that information should be recorded as FIR. But, sometimes, cryptic written complaints are given in which event if the complainant knows the details regarding the crime, oral statement of the informant should be recorded and should be made part of the written complaint and, thereafter, FIR be registered. There should be no delay in submitting the FIR to the Magistrate and it has to be communicated immediately. In the earliest information, registered as FIR, if there is mention of presence of witnesses and the names of the accused, it carries a greater probative value and the omission of it may prove fatal to the prosecution case.
13. We have also found that senior police officers, including the Superintendent of Police, have an obligation to supervise the investigation under Section 36 of the Code of Criminal Procedure. Had there been a proper supervision by the senior police officers and the Superintendent of Police of the investigation done, these types of lapses would not occur. We, therefore, direct that henceforth all the Final Reports in Sessions Cases have to be scrutinized by the Superintendent of Police and should make an endorsement on the Final Reports that the investigation done is proper and correct. The committal Magistrates should also insist for an endorsement of the Superintendent of Police on the Final Reports before they are formally received.
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14. We, therefore, direct the Registry to send the copy of the judgment to the Secretary, Home, Govt. of Assam, and the Director General of Police, Assam, to issue necessary instructions to all the Police Officers, in-Charges of the Police Stations for strict compliance of the above observations regarding registration of FIR and transmission of FIR to the Magistrate without delay. The compliance report should be filed before the Registry within one month from the date of receipt of this judgment.
15. Coming back to the facts of the case, as observed above, the evidence of the supposed eye witnesses does not inspire confidence of this Court to believe that they can be treated as eye witnesses to the incident.
16. In view of the discrepancies in the conduct of the investigation and the evidence adduced by the prosecution, we are of the opinion that the order of conviction is bad in law and the same is set aside. The accused is directed to be released forthwith if he is not required to be detained in connection with any other case.
17. The operative portion of the order be sent to the learned trial Court and also to the jail authorities.
18. The Registry is directed to issue circulars/instructions to all the Magistrates in the State for strict compliance of the observations made regarding FIR and whenever an FIR is submitted by a police constable, the Magistrate has to note the time of its receipt and also the buckle number of the police and also with regard to final reports.
19. The State shall pay to the learned amicus curiae a sum of Rs.7,000/-.
JUDGE JUDGE [dutt] 10 Criminal Appeal (J) 135/2010