Allahabad High Court
State Of U.P. vs Balram Singh And Anr. on 6 August, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 42 Case :- GOVERNMENT APPEAL No. - 23 of 2019 Appellant :- State of U.P. Respondent :- Balram Singh And Anr. Counsel for Appellant :- G.A. Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
(Per Hon'ble Vikas Budhwar,J.)
1. Challenge in this appeal u/s 378 of code of Criminal Procedure 1973 (hereinafter referred to as Cr.P.C.) is made to the judgment and order dated 29.08.2018 passed by Second Special Judge/Additional District and Sessions Judge, Hamirpur in Session Trial No. 128/1997 (State of U.P. Vs. Balram Singh and 2 others) u/s 302, 323, 504, 506 IPC read with section 3(2)5 SC/ST Act, P.S. Khanna, District Hamirpur in Case Crime No. 141/1997 as well as Session Trial No. 143/1997 (State of U.P. Vs. Khalbhaliya) in Case Crime No. 148/1997, u/s 25 Arms Act, P.S. Khanna, District Hamirpur acquitting the accused herein.
2. Brief facts of the case so unfolded by the prosecution are to the effect that the informant Dully Chand S/o Kamtu R/o Village Akbai,Police Station Khanna, District Hamirpur claimed to be of Dhobi caste and according to the prosecution theory he along with his brother Moolchand, Shiv Narain, Chunna has proceeded towards the southern portion of the village near a pond for answering nature's call on fateful day i.e. 27.04.1997 at 5-6 in the evening and when they were crossing towards the outer portion of the pond then the accused who were three in number one of them being village Pradhan Balram Singh jointly obstructed movement of the aforesaid persons and directed the complainant fraction to do fishing work for them and when the complainant fraction exhibited their resistance then the accused fraction hurled abuses and threatened them that the complainant fraction will not be tolerated in the village and they will be ousted. Suddenly, when Mool Chand (since deceased) protested then the accused Balram Singh took out his rifle and the accused Khalbalia also took out single bore rifle and deceased Chuttan took out his double bore rifle and fired upon Mool Chand who fell down. It is further alleged that Shiv Charan tried to safe then with the rifle butt he was given a blow and he sustained injuries and thereafter the complainant fraction being Dully Chand, Shiv Narain and Chunna ran away from the site and went to their respective houses and after taking all necessary precautions regarding their life they stayed in their house in the night and they submitted a written report before the police station in the next morning.
3. Consequent to the submission of the written report, FIR was lodged in Police Station Khanna, Hamirpur on the next day i.e. 28.04.1997 at 08:30 am u/s 302, 323, 504, 506 IPC read with section 3(2)5 SC/ST Act. As per the prosecution, recovery was also sought to be made of the rifle which was made the basis of commission of crime and three numbers of cartridges were also found so a FIR u/s 25 Arms Act was also lodged.
4. After lodging of the FIR Investigating Officer was nominated and consequent to the death of Mool Chand Panchayatnama was prepared, body was sent for postmortem and the deposition of the prosecution witnesses were recorded and all the formalities which were required for conduction of the investigation was pressed into service.
5. As Mool Chand (since deceased) is stated to have subjected to fatal fire arm injuries so charge sheet was submitted in Case Crime No. 141/1997 u/s 302, 323, 504, 506 IPC read with section 3(2)5 SC/ST Act, P.S. Khana, Hamirpur and section 25 of the Arms Act in the subject Police Station in Case Crime No. 148/1997 (State of U.P. Vs. Khalbalia). During the pendency of the trial the accused Chuttan Singh expired and thus the present accused respondents were proceeded in the criminal case.
6. Case was committed to Sessions.
7. Charges were read over to the accused who are two in number they claimed to be tried while pleading innocence.
8. The prosecution in order to bring home the charges produced the following prosecution witnesses namely, (i) P.W. 1 Dully Chand, (ii) P.W. 2 Shiv Charan, (iii) P.W. 3 S. I. Atul Pradhan, (iv) P.W. 4 Chunna, (v) P.W. 5 Chakkan, (vi) P.W. 6 Dr. R.K. Khattar, (vii) P.W. 7 C. O. Ashok Kumar Verma, (viii) P.W. 8 S.H.O. Madhu Sudan Singh, (ix) P.W. 9 H.C. Lala Ram, (x) P.W. 10 Pharmacist Pusawa Prajapati, (xi) P.W. 11 C.O. Ramyagya.
9. The defence also produced the following witnesses namely, (i) D.W. 1 Pharmacist Virendra Singh, (ii) D.W. 2 Lekhpal Bjagwat Prasad.
10. The learned trial court by virtue of the judgement and the order under challenge has acquitted the accused who are two in number. Challenging the said judgment and the order of acquittal now the State is before this Court in the present proceedings.
11. Before delving into the exercise so sought to be undertaken for determining as to whether the judgment and the order of acquittal has been proceeded in correct perspective or not this Court is to bear in mind that that the present proceedings emanates against the judgment and the order of acquittal so bestowing double presumption of innocence upon the accused. To put it otherwise this Court cannot venture into the judgment in a routine and cursory manner until and unless the circumstances are such which explicitly show that there has been palpable illegality committed by the learned trial court while recording perverse finding and misread the evidences on record. Without burdening the present judgment while reciting the mandate of the Hon'ble Apex Court as reduced in plethora of judgments this Court finds appropriate to refer to the recent judgments which itself is pregnant with the judgment which are on the same line right from inception.
12. Nevertheless in the Case of Rajesh Prasad Vs. State of Bihar And Another reported in 2022 (3) SCC 471 the Hon'ble Apex Court in following paragraphs have observed as under:-
"21. Before proceeding further, it would be useful to review the approach to be adopted while deciding an appeal against acquittal by the trial court as well as by the High Court. Section 378 of the Cr.P.C deals with appeals in case of acquittal. In one of the earliest cases on the powers of the High Court in dealing with an appeal against an order of acquittal the Judicial Committee of the Privy Council in Sheo Swarup vs. R. Emperor, AIR 1934 PC 227(2) considered the provisions relating to the power of an appellate court in dealing with an appeal against an order of acquittal and observed as under:
"16. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.
But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice."
It was stated that the appellate court has full powers to review and to reverse the acquittal.
22. In Atley vs. State of U.P., AIR 1955 SC 807, the approach of the appellate court while considering a judgment of acquittal was discussed and it was observed that unless the appellate court comes to the conclusion that the judgment of the acquittal was perverse, it could not set aside the same. To a similar effect are the following observations of this Court speaking through Subba Rao J., (as His Lordship then was) in Sanwat Singh vs. State of Rajasthan, AIR 1961 SC 715:
"9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court's approach to a case disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) ''substantial and compelling reasons', (ii) ''good and sufficiently cogent reasons', and (iii) ''strong reasons' are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."
The need for the aforesaid observations arose on account of observations of the majority in Aher Raja Khimavs. State of Saurashtra, AIR 1956 SC 217 which stated that for the High Court to take a different view on the evidence "there must also be substantial and compelling reasons for holding that the trial court was wrong."
23. M.G. Agarwal vs. State of Maharashtra, AIR 1963 SC 200 is the judgment of the Constitution Bench of this Court, speaking through Gajendragadkar, J. (as His Lordship then was). This Court observed that the approach of the High Court (appellate court) in dealing with an appeal against acquittal ought to be cautious because the presumption of innocence in favour of the accused "is not certainly weakened by the fact that he has been acquitted at his trial."
24. In Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793, Krishna Iyer, J., observed as follows:
"In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."
25. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, spoke about the approach of the appellate court while considering an appeal against an order acquitting the accused and stated as follows:
"While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can thenand then only reappraise the evidence to arrive at its own conclusions."
The object and the purpose of the aforesaid approach is to ensure that there is no miscarriage of justice. In another words, there should not be an acquittal of the guilty or a conviction of an innocent person.
26. In Ajit Savant Majagvai vs. State of Karnataka, (1997) 7 SCC 110, this Court set out the following principles that would regulate and govern the hearing of an appeal by the High Court against an order of acquittal passed by the Trial Court:
"16. This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under:
(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.
(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.
(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness box.
(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused."
27. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225 observed visàvis the powers of an appellate court while dealing with a judgment of acquittal, as under:
"7. ... While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then--and then only--reappraise the evidence to arrive at its own conclusions."
28. This Court in Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415, highlighted that there is one significant difference in exercising power while hearing an appeal against acquittal by the appellate court. The appellate court would not interfere where the judgment impugned is based on evidence and the view taken was reasonable and plausible. This is because the appellate court will determine the fact that there is presumption in favour of the accused and the accused is entitled to get the benefit of doubt but if it decides to interfere it should assign reasons for differing with the decision of acquittal.
29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
30. In Nepal Singh vs. State of Haryana- (2009) 12 SCC 351, this Court reversed the judgment of the High Court which had set aside the judgment of acquittal pronounced by the trial court and restored the judgment of the trial court acquitting the accused on reappreciation of the evidence.
31. The circumstances under which an appeal would be entertained by this Court from an order of acquittal passed by a High Court may be summarized as follows:
31.1. Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed upto the High Court. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution. [State of U.P. v. Sahai, AIR 1981 SC 1442] Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. [Arunachalam v. Sadhananthan, AIR 1979 (SC) 1284] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [State of Haryana v. Lakhbir Singh, (1990) CrLJ 2274 (SC)] B) 31.2. However, this Court has on certain occasions, set aside the order of acquittal passed by a High Court. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarised as follows:
31.2.1. Where the approach or reasoning of the High Court is perverse:
a) Where incontrovertible evidence has been rejected by the High Court based on suspicion and surmises, which are rather unrealistic. [State of Rajasthan v. Sukhpal Singh, AIR 1984 SC 207] For example, where direct, unanimous accounts of the eyewitnesses, were discounted without cogent reasoning; [State of UP v. Shanker, AIR 1981 SC 879]
b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on the ground that they were ''interested' witnesses; [State of UP v. Hakim Singh, AIR 1980 SC 184]
c) Where testimony of witnesses had been disbelieved by the High Court, on an unrealistic conjecture of personal motive on the part of witnesses to implicate the accused, when in fact, the witnesses had no axe to grind in the said matter. [State of Rajasthan v. Sukhpal Singh, AIR 1984 SC 207]
d) Where dying declaration of the deceased victim was rejected by the High Court on an irrelevant ground that they did not explain the injury found on one of the persons present at the site of occurrence of the crime. [Arunachalam v. Sadhanantham, AIR 1979 SC 1284]
e) Where the High Court applied an unrealistic standard of ''implicit proof' rather than that of ''proof beyond reasonable doubt' and therefore evaluated the evidence in a flawed manner. [State of UP v. Ranjha Ram, AIR 1986 SC 1959]
f) Where the High Court rejected circumstantial evidence, based on an exaggerated and capricious theory, which were beyond the plea of the accused; [State of Maharashtra v. ChampalalPunjaji Shah, AIR 1981 SC 1675] or where acquittal rests merely in exaggerated devotion to the rule of benefit of doubt in favour of the accused. [Gurbachan v. Satpal Singh, AIR 1990 SC 209].
g) Where the High Court acquitted the accused on the ground that he had no adequate motive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the accused, thereby making it unnecessary on the part of the prosecution to establish ''motive.' [State of AP v. Bogam Chandraiah, AIR 1986 SC 1899] 31.2.2. Where acquittal would result is gross miscarriage of justice:
a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence, [State of UP v. Pheru Singh, AIR 1989 SC 1205] or based on extenuating circumstances which were purely based in imagination and fantasy. [State of Uttar Pradesh v. Pussu 1983 AIR 867 (SC)]
b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself; or where accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [State of Maharashtra v. ChampalalPunjaji Shah, AIR 1981 SC 1675] [Source : Durga Das Basu - "The Criminal Procedure Code, 1973" Sixth Edition Vol.II Chapter XXIX]"
13. Keeping in mind the aforesaid aspects that the note of caution has been mandating now the present judgment is to analysed.
14. To start with the ocular testimony of the prosecution witness is to be taken not of.
15. P.W. 1 being the first informant Dully Chand entered as a prosecution witness and according to him he knows all the three accused, according to him on 27.04.1997 at 5-6 in the evening he along with the deceased Mool Chand, Chunna and Shiv Narain had gone to answer the nature's call and near the pond the accused were armed with rifles as discussed above and on controversy as regarding fishing coupled with the resistance, the accused were three in number with their respective rifles fired upon Mool Chand he fell down and when Shiv Narain tried to help Mool Chand then the accused with the aid of rifle butt hit him and Mool Chand died on the spot and the accused ran away. Though the incident of 5-6 in the evening on 27.04.1997 however, they were subjected to fear and their life was in peril so they came back to their house and stayed in the night and while concealing their identity they went to Echauli Station to catch the train and went to Mahodaya got the written report typed and after seeing the same they went to the police station and got the FIR lodged at 08:30 in the next i.e. 28.04.1997.
16. P.W. 2 Shiv Charan has appeared as prosecution witness he turned hostile, according to him though he knows accused Khalbalia but he never met the S.I. Atul Pradhan on 10.05.1997 in his presence no arrest was made and no recovery was also made.
17. P.W. 3 S.I. Atul Pradhan appeared as prosecution witness he claims himself to have conducted investigation consequent to the lodging of the FIR and according to him he prepared the site plan, sent the body for postmortem and also got prepared punchanama and recovery is being also sought to be shown which he states to have proved.
18. P.W. 4 Chunna deposed that he knows the accused and he has also narrated the incident which occurred on 5-6 in the evening of the fateful day when he had gone to answer the nature's call. Thus he supported the prosecution story.
19. P.W. 5 Chakkan in his statement has deposed that he knows the Khalbalia according to him, police has gone to the house of Khalbalia and recovery of one single bore and one double bore rifle was made from his house and according to Khalbalia single bore rifle belongs to accused Balrams's father. Thus he seeks to prove recovery.
20. P.W. 6 Dr. R.K. Khattar has proved postmortem according to him there were as many as six injuries and being one and two referable to temporal region three and four being injuries of the lungs, five and six are the injuries of the intestines.
21. P.W. 7 C.O. Ashok Kumar Verma, claims himself to be the Investigating Officer who had been entrusted with the investigation on 03.05.1997.
22. P.W. 8 S.H.O. Madhisudan Singh claims to be in the police station Khanna and he has tried to prove the FIR and all other aspects relating to recovery etc.
23. P.W. 9 H.C. Lala Ram has sought to prove the aspects relating to recovery of rifles as well as cartridges. As he claims to be the Moharrir in the police station.
24. P.W. 10 being Pharmacist Puswa Prajapati claims to be posted in the Community Health Center as Pharmacist from the period from 1990-2013 and claims that Dr. Virendra was posted in the Community Health Center.
25. P.W. 11 C.O. Ramyagya is seeking to prove the fact the he also conducted investigation in case crime no. 141/1997 and regarding preparation of site plan and other formalities etc.
26. So far as defence is concerned, they produced D.W. 1 Pharmacist Virendra Singh who tried to prove facts relating to medical aspects and D.W. 2 Lekhpal Bhagwat Prasad had sought to prove the issue relating to the fisheries auction of the pond in question.
27. Undisputedly, the incident occurred on 27.04.1997 at 5-6 pm wherein the first informant being Dully Chand along with Shiv Narian and Chunna had gone with the deceased for answering the nature's call wherein the accused who are three in number resorted to gun shot firing pursuant where to the deceased Mool Chand died and Shiv Narain sustained injuries by rifle butt. It has also come on record that the deceased died on the spot and the complainant fraction run away from the place of occurrence leaving the dead body over there which in fact was near/adjacent to the pond and the first informant and his associates went to their respective house and stayed over their the entire night and in the morning they claimed to have proceeded to Echaula Railway Station and they catch the train boarded at Mahoda Railway Station while coming up with stand that they caught the train at 6 in the morning of the next day reached Mahoda Railway Station at 07:15 am and from Mahoda they went to police station Khanna in a truck which they could able to board at 07:45 am and reach the police station at 08:30 am. According to the prosecution, the FIR was lodged at 08:30 am on 28.04.1997.
28. Though there has been a delay of more than 14 hours in lodging of FIR and a justification has been sought to be given by the prosecution that their life and liberty was under constant threat and that is why they were hiding their identity went to the police station next day for lodging of the FIR but the fact remains that explanation for delay in lodging of the FIR remains unexplained particularly in view of the fact that according to the prosecution the first informant and their associates went to their houses stayed in the night and left the body all alone near the pond the entire night without taking support of the resident villagers so as to even take any prompt action while lodging FIR and also doing any activity relatable to the fact that at least some body ought to have stayed in the place of occurrence to save the dead body from being exposed to wild animal and the onslaught of climate or to take body to their house. It is not a case wherein the deceased is a stranger, however, the deceased happens to be the real brother of the first informant who has witnessed the said incident.
29. Hon'ble Apex Court on the question of delay in lodging the FIR and its impact upon the prosecution theory has observed in the case of (1973) 3 SCC 114 Apren Joseph Alias Current Kunjukunju and others Vs. The State of Kerala wherein para 11 following was mandated:
"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, Cr. P. C. As observed by the Privy Council in K. E. v. Khwaja, 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 F. I. R., 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."
30. In the case of Tara Singh and others Vs. State of Punjab 1991 Supp (1) SCC 536, the Hon'ble Apex Court in paragraph 4 has observed as under:-
"4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case."
31. Yet, in the case of P. Rajagopal and others Vs. State of Tamil Nadu (2019) 5 SCC 403, the Hon'ble Apex Court in paragraph 12 has held as under:-
"12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty-bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely."
32. Keeping the issue of delay and its impact upon the prosecution case aside this Court has to also examine the fact as to why during the cross-examination the accused could not specify the name of the person who had typed his written complaint. According to the prosecution, first informant had gone to the police station with Shir Chand, Ram Swaroop, Shiv Narain and he got the FIR typed near a shop adjacent to Tehsil. The entire story so built up by the prosecution does not inspire any confidence as normally whenever deaths takes place in a close vicinity where at it becomes a normal routine for easing, a human being while answering the nature's call and that to in the presence of first informant along with two other persons then the said incident catches fire and everybody in a village comes to know about the same then obviously there cannot be a risk in not taking away the body to their respective house particularly when according to the prosecution the accused after committing crime ran away from the place of occurrence.
33. Another additional aspect of the matter needs to be further examined is the fact that P.W. 1 being Dully Chand had deposed that he was not present when the punchanama was being sought to be conducted. On the other hand P.W. 1 has further stated that he came with the police officials from police station Khanna then punchanama was done though he denies that when the punchanama was being reduced in writing he was not there. He has also shown his ignorance about the date of punchanama. The story was build up by the prosecution is also thoroughly unbelievable that in case the first informant was present when the incident of firing took place and his brother Mool Chand fell down after receiving gun shot injuries then it is quite implorable that the real brother will not leave the injured and run away without even taking him for medication particularly when the accused fraction is stated to have ran away. The non effecting of the signature of P.W. 1 in the punchanama itself shows that the entire prosecution case is under cloud.
34. Notably, as per the prosecution the firing was administered from the front and not from any side consequent there to the deceased fell down and Shiv Narain also sustained injuries through rifle butt however, so far as the first informant is concerned, he through was there for three to four minutes but he was not subjected to any injury. Even otherwise, once as per the prosecution the firing was made by the accused who are three in number then it is quite implorable that the first informant would not have sustained even a hair line injury also.
35. Nonetheless, one of the prime witness would have been Shiv Charan however, Shiv Charan who stated to have sustained injuries was not put to examination in witness box to which there is no explanation at all. So far as P.W. 4 Chunna is concerned he happens to be present when the alleged incident took place and he in his cross examination had seen the accused committing crime but in his cross examination he has come up with stand that when the deceased Mool Chand was administered gun shot injury he was in the southern part of the pond and according to him he had not seen where the deceased sustained gun shot injury. According to P.W. 4 Chunna after the said incident he had gone to his house and he remained there at till 4 O' clock after that he went to Bibawar. P.W. 4 in his cross examination has also stated that he does not go for easing himself in the night.
36. As a matter of fact P.W. 1 who happens to be the real brother of the deceased and P.W. 4 happens to be the cousin brother, however, there are vast contradictions and inconsistency in the statement of both the prosecution witnesses which itself shows that some what a story is being sought to be erected just in order to implicate the accused herein.
37. Nonetheless, so far as the recovery of the rifles and cartridges are concerned, P.W. 2 Shiv Charan has deposed that in his presence Khalbalia was not arrested nor he had given any statement in this regard and recovery of double bore and single bore rifles from Khalbalia is concerned the same has not been witnessed by him.
38. Even the ballistic report was also obtained according to which the cartridges which were sought to be shown to be used for commission of the crime was opined to not have have been loaded in the rifle in question, meaning thereby that from the rifle itself which is stated to be possessed by the accused and used by the accused for resorting to gun shot injury is not proved and rather the accused cannot be said to have committed the said offence.
39. Cumulatively, analysing the present case from four corners of law and irresistible conclusions stands drawn that not only there has been delay in lodging of FIR which remains thoroughly unsatisfactory and unexplained, non-presence of the signature of P.W. 1 Dully Chand first informant in the punchanama coupled with the material contradictions in the statement of the P.W. 1 and P.W. 4 coupled with the fact that the ballistic report does not support the prosecution and last but not the least the most important the conduct of the first informant in leaving the dead body of the deceased even after quiting of the accused from the place of occurrence without even taking any step for providing medication to the injured deceased and isolating the body of the deceased at the mercy of nature and staying in the house and non sustaining of a hairline injury shows that the entire prosecution case is a concocted one and encompasses with weak evidence so as to link the accused with respect to commission of crime.
40. Thus, we are of the considered opinion that the judgment of the learned trial court acquitting the accused is a well reasoned judgment considering each and every aspect of the matter lacking any perversity or miscarriage of any justice and also coupled with the fact that the view taken by the learned trial court is a possible and a plausible view which needs no interference while converting acquittal into conviction particularly in absence of any illegality shown to have committed by the court below.
41. We therefore, have no option but to concur the judgment of the learned trial court by affirming it.
42. Resultantly, no ground is made as to accord leave to appeal and accordingly, the same is rejected.
43. As the leave to file the present appeal stands rejected thus, the present appeal so instituted at the behest of the State-appellant u/s 378 (3) of the Cr.P.C. stands dismissed.
Order Date :- 6.8.2022 Nisha