Madhya Pradesh High Court
Nabab Khan Alias Nawab And Ors. vs State Of M.P. on 18 January, 2002
Equivalent citations: 2004CRILJ94
Author: Deepak Verma
Bench: Deepak Verma
JUDGMENT S.L. Kochar, J.
1. Being aggrieved by the judgment and finding dated 22nd June, 1996, all these 17 appellants, have preferred this appeal against their conviction for commission of murder of four persons, by Sessions Judge, Shajapur in S.T. No. 236/94 convicting the appellants for offences punishable under Section 302 read with Section 149 of IPC sentence to R.I. for life imprisonment with fine of Rs. 1000/- each also under Section 148 of IPC, R.I. for two years and under Section 307/149 of IPC R.I. for 5 years each, Jail sentences were directed to be run concurrently and in default of payment of fine further S.I. for one year each. It has also been ordered by trial Court about its equal distribution of total amount of fine among the widows of four deceased persons and in the event of non-availability of widows, to the mothers of the deceased as compensation.
2. The prosecution case before the trial Court in short was that on 19-4-1994, all 4 deceased persons named Bafati Khan, Bahadur Khan, Anwar Khan and Mustaq Khan along with PW/5 Mubariq Khan had gone to attend the trial so fixed before the Sessions Court Shajapur against, them in connection with the murder of the son of one of the accused/appellants (appellant No. 2 Sheikh Imami herein). On that day i.e. 19-4-1994 presiding Judge was on leave therefore the case was adjourned in early hours of the day. There was a marriage of sister of PW. 5 Mubariq Khan, on account of which all the four deceased persons and Mubariq Khan wanted to reach their houses early. Their houses were not situated on main road of Village Ghanana, thus they reached upto Mudlai by bus and, thereafter proceeded towards their village on foot. It is further alleged by the prosecution that when they reached on Kankad (common passnge or lane situated between village Mudlai and Inchiwada, normally, used by the villagers of both villages as passage) some of the accused persons from bushes and some from rivulet (Nala) emerged and appellant No. 1 Nawab Khan fired on deceased Bahadur Khan, Appellant No. 4 Samad Khan fired with country pistol causing injuries on Bafati Khan thereafter all 19 accused persons started assaulting jointly the father and three brothers of witness PW. 5 Mubariq Khan. They surrounded and assaulted witness Mubariq Khan who sustained some injuries but he ran away from the scene of occurrence to save himself. It is further alleged that he was chased up to his village where he raised an alarm for sending information to police. His sister PW/1 Tajbi sent his cousin brother PW/6 Haeed Khan for sending telephonic message to the Police Station. Haeed Khan thereafter phoned at the Police Station Salsalai, where his message was recorded on 19-4-1994 at Sanha No. 493 at 8.15 p.m. The Station House Officer was busy with the investigation in a murder case at village Manglaj there he received information from constable Kailashchandra sent by P.S. of Salsalai, came back to police station thereafter proceeded towards the place of incident in the same night at 9-20 p.m. with force. When he reached village Inchiwada Kankad (field) he witnessed four dead bodies lying overthere, those were identified by Constable, being bodies of Bahadur Khan and his sons. He left two, three constables near the dead bodies and reached Village Ghanana at the house of deceased Bahadur Khan where the women folk were crying and weeping. He called PW/5 Mubariq Khan, on his disclosure recorded Dehatinalishi Ex. D/3. For protection and security purpose he placed some constables on duty at the house of Mubariq Khan and came back to the scene of occurrence. He also sent constable to the Police Station for informing Senior Police Officer. At per Sahana No. 499 in the night 2.55 a.m. constable Kailashchandra reported the death of four persons in the Police Station and thereafter sent the message to SDOP, Shujalpur and control room Shajapur.
3. In the same night Sr. Police Officers like S. P. Addl. S. P. SDO Sujalpur reached the spot. As per the direction by S. P. the said Dehatinalishi D/3 was given to S.O. PS Akodiya Shri N.K. Suryavanshi (PW. 13 because the place of incident was within the jurisdiction of Police Station Akodiya.
4. With the said Dehatinalishi, constable Kamod Singh PW/11 was sent to the Police Station Akodiya for registration of crime where the incident was registered as Crime No. 44/94. The Station House Officer PW/13 NK Suryawanshi after complete investigation filed charge-sheet against the aforesaid 19 accused persons for commission of murder of 4 persons punishable under sections 148, 302 read with Section 149 and 307 read with 149 of IPC.
5. The accused persons had denied the charges. As according to the appellant No. 14 (who took plea of alibi) Rashool Beg that he was not present in the village and was admitted in the Hospital of defence witness PW/2 Dr. Jain from 17-4-1994 to 24-4-1994. According to the appellant No. 18 Sheikh Ayoob Khan his name was not mentioned in the FIR, only this was mentioned that son of Bhuru Khan. He had brothers so it could not be said that out of four sons of Bheru Khan who was present there.
6. Learned Sr. Counsel Shri Jai Singh has vehemently argued and submitted that D/3 Rojnamchasana could not be treated as FIR because prior to that report, there was already telephonic message sent by PW/ 6 Haeed Khan at Police Station Salsalai where the same was re'corded in Rojnam-chasana No. 493 in which, names of assailants are not mentioned. It has also been contended that Ex. D/3 Dehatinalishi is antedated and antetimed and was prepared after giving due thought over the matter. Names of the appellants have been introduced in this Dehatinalishi and that copy of FIR was sent to the concerned Magistrate after lapse of long time which clearly indicates that prosecution was waiting for giving shape to the case and that is why there was delay in sending the copy of the FIR as per the requirement Under Section 157 of Cr. P.C. and that the solitary eye-witness PW. 5 Mubariq should not have been relief upon because he was inimically interested and partisan witness. He was detained in Police Station for a long time and his statement was got recorded under Section 164, of Cr. P.C. shows that the prosecution itself was not confident on this witness, otherwise why he should have been bound down by recording his statement under Section 164 of Cr. P.C. The statement of PW. 1 Tajbi should not have been relied upon because her statement was recorded after three days by police and her name was not mentioned in the FIR. She is also interested and partisan witness. Learned counsel has also demonstrated that names of the assailants are not at all mentioned in the enquest report as well as in the medical requisition form sent by Police, is also indicative of the fact that Dehatinalishi was recorded after postmortem examination of the deceased persons and copies of the FIR and inquest report were not sent, along with medical form to the Doctor.
7. To counter this, learned Dy. AG Shri Desai has submitted that vague and indefinite telephonic message cannot be treated as FIR. He also submitted that in the present case there was no delay in dispatching copy of FIR to the concerned Magistrate. The alleged incident had taken place on 19th of April 1994 Dehatinalishi was recorded in the intervening night of 19/20th of April, 1994 whereas copy was sent and received by clerk of the concerned Court on 21 April, 1994. He has also contended that Dehatinalishi was neither antedated nor antetimed and even if there was some delay or consultation between relatives of the deceased, FIR would not loose its weight and value. It is also contended by him that there is no rule or law that witness whose statement is recorded under Section 164 of Cr. P.C. is not reliable. He has vehemently refuted submissions of counsel for appellants about sending of the copy of FIR and inquest report to the doctor performing post mortem of the dead bodies. According to him the solitary testimony of PW/5 Mubariq is sufficient and also the same has been duly corroborated by the statement of PW/1 Tajbi and other substantial evidence. Overall he supported the judgment and order passed by learned trial Court.
8. We have heard the learned counsel for the parties and perused the entire record. There is no substance in the contention that report in Rojnamchasana No. 493 Ex. P/89 should have been considered as FIR under Section 154 of Cr. P.C. because the facts mentioned in this Rojnamchasana P/89 as well as Ex. P/92, no such information was received by police which may have disclosed commission of cognizable offence. This report was vague, cryptic and indefinite. By telephonic message the police had received this much information that between village Mudlai and Inchiwada four dead bodies were lying but informant did not disclose names and other details. So on the basis of such vague, cryptic and indefinite message which did not satisfy the requirement of Section 154 of Cr. P.C. Police was not obliged to record the same in accordance with the provision of Section 154 of Cr. P.C. There is no illegality committed by the Police while not recording and registering the offence on the basis of such telephonic message. Supreme Court in Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283 : (1997 Cri LJ 362) para 9 has held that cryptic information from someone which does not disclose any authentic knowledge about commission of cognizable offence as well as name of the informant, could not be sufficient to register an FIR. The similar view has also been taken in a judgment reported in (1994) 2 SCC 220 : (1995 AIR SCW 510) Dhananjay Chatterjee alias Dhana v. State of W.B. in paras 8 and 9 i.e. vague and indefinite telephonic message making investigating agency only to rush to scene of occurrence does not constitute an FIR. On the facts and circumstances of the present case, the learned trial Court has committed no error in not considering document Ex. P/89 Rojnamchasana No. 493 as FIR.
9. The conviction of the appellants is based on solitary testimony of eye-witness PW/5 Mubariq. He is the son of and brother of other deceased persons and was also facing trial for commission of murder of son of appellant Imami Khan. He was also an interested and partisan witness. For appreciating the evidence of solitary eye-witness, who too was interested and partisan, the law of land is very clear. His testimony must be scrutinised with great care and caution and same must be of sterling character. Learned trial Court while elaborately discussing the testimony of this witness has given finding in para 76 of its judgment, that due to contradictory statement given by this witness in Court, this witness could not be treated to be a wholly reliable witness and sought corroboration on some important material particulars / points.
10. As a matter of fact, prosecution witness Mubariq could not be treated even as a partly reliable witness because according to the prosecution case, Ex. D/3 Dehatinalishi was recorded by PW/14 Amar Singh Badole, at the instance of this witness in the night at 11.55 p.m. on the spot. Whereas PW/1 Tajbi, Sister of witness Mubariq, has stated in paragraph 42 of her deposition that though police reached her house in the night but did not enquire about incident. Sub-Inspector had no talk with Mubariq and any members of the family. In the said night she did not allow Mubariq to come out of the house till 8-9 a.m. next day. Sub-Inspector again came to their house in the morning between 8 and 9 a.m. only thereafter they had taken Mubariq with them. Prosecution witness PW/11 Kamod Singh, Constable and posted at Police Station Akodiya stated in paragraph 3 of his Court statement that they proceeded from Police Station, Akodiya for the place of incident in the night at about 12/12.30 p.m. and reached the spot within an hour. When they reached the spot they met Station House Officer, Salsalai Amar Singh Badole PW/14 with his staff and in his presence Dehatinalishi was recorded. At first instance he had stated that Mubariq put his thumb impression on the Dehatinalishi but thereafter he voluntarily stated about putting signature on Dehatinalishi by Mubariq. Thereafter he had taken Dehatinalishi at Police Station, Akodiya. It is pertinent to note that Dehatinalishi Ex. D/3 was recorded on the spot by PW/14 Amar Singh Bodole Station House Officer of Police Station Salsalai. This witness has not corroborated presence of PW/11 Kamod Singh as well as PW/13 NK Suryawanshi Station House Officer, Police Station, Akodiya at the time of recording of Dehatinalishi. According to the statement of PW/13 NK Suryvanshi, station house officer, Police Station, Akodiya reached the spot after receiving order from the S.P. then he found PW/14 Amar Singh Badole station house officer, Salsalai SDOP Shajapur, S. P. Shajapur with police force and as per direction given by SP the Dehatinalishi Ex. D/3 was handed over to him by PW/ 14 Amar Singh Badole and thereafter the same was given to PW. 11 Constable Kamod Singh for taking it to the police station, Akodiya for registration of crime, SDOP and S. P. have not been examined by the prosecution who reached on the spot immediately, prior to station house officer PW/13 NK Suryavanshi, Police Station, Akodiya. They could have thrown sufficient light over the recording of the Dehatinalishi D/3 before the arrival of witness PW/13 Suryavanshi. The statements of PW/1 Tajbi, PW/5 Mubariq, PW/11 Kamod Singh and PW/14 Amar Singh are contradictory to each other about recording of Dehatinalishi in the night on 19-4-94 at about 11-55 p.m. These material contradictions create doubt about recording of Dehatinalishi on a given date and time. PW/1 Tajbi, PW/11 Kamod Singh have neither been declared hostile nor have been re-examined by the prosecution on these facts, PW/1 Tajbi says that for the whole night she and her family members did not permit Mubariq to come out from the house and for the first time they allowed him to come out from the house next morning at about 8/9 a.m. and only thereafter PW/5 Mubariq had a meeting with the Police. PW/ 11 Kamod Singh Constable says that when he reached the spot along with station house officer PW/13 NK Suryavanshi, only then Dehatinalishi was recorded which is not the prosecution case and it contradicts both the Station House Officers. If PW/11 Kamod Singh is speaking truth then the question would arise why PW/14 Amar Singh station house officer, Salsalai would record Dehatinalishi in whose jurisdiction incident did not occur specially when the ill-charge of that area Police Station House Officer NK Suryavanshi was present. This mystery could have been solved by prosecution after re-examining PW/1 Tajbi and PW/11 Kamod Singh on this point.
11. The conduct of Mubariq is also questionable, as after running from the scene of occurence he did not stop at a nearby village and sought help for saving himself and his four deceased relatives. It is beyond comprehension as to why he did not try for help from villagers of the nearby villages though it was an evening time and villagers were available while reaching his house, after crossing two villages, Prosecution agency was not able to examine even a single witness to this effect which may lend help to the prosecution about witnessing the incident by Mubariq in the evening and thereafter running away from the scene of occurrence and his chasing by appellants for his assault. Surprisingly enough the prosecution could not secure even a single witness of this village where Haeed Khan, Mubariq and Tajbi were residing in support of prosecution story.
12. PW/6 Haeed Khan who is said to have given information to police about the incident on telephone has deposed in paragraph 43 of his deposition that in the night of the alleged incident, Sub-Inspector PW/ 14 Badole did not come to them for enquiry. This witness has been examined by the prosecution without recording his statement during the course of investigation. This fact has also been admitted by this witness in paragraph 45 and paragraph 70 that though he remained in the company of police during the course of investigation for a long period yet his statement was not recorded by the police. This fact has also been admitted by the prosecution witness i.e. PW/13 NK Suryavanshi investigating Officer. Though this witness had witnessed the recording of disclosure statement by several accused persons about weapons, seizure of weapons, their arrest and also witnessed the proceedings of inquest of dead bodies prepared under Section 174, Cr. P.C., even then his statement was not recorded by the Police and he was not questioned about sending information by telephonic message. It is a matter of great surprise as to how such an important witness could not be interrogated and his statement Under Section 161, Cr. P.C. was not recorded by the Police. Though on his information the investigating agency proceeded towards the place of incident and started investigation. Major and substantial part of the investigation has also been done in his presence and witnessed by him. It appears that the police was not able to collect information about or was not having knowledge about the persons who had sent message on telephone which was recorded in Rojnamchasana No. 493 of Police Station, Salsalai. It would not be unjust and improper if conclusion is drawn that during trial he was got prepared to give statement as informant on telephone. According to this witness on the date of incident in the evening at about 6 p.m. he was informed by PW/1 Tajbi about the incident and also disclosed the names of the assailants. On her request he sent telephonic message at PS, Salsalai. In para 31 of his statement he had given information about the quarrel but because of disturbance and fault in telephone he could not give full information to the police. All these statements by this witness were given for the first time in the Court. He was examined on 1-8-95, prior to this, his case diary statement was not recorded. As mentioned above he seems to be a very important and material witness who set the police in motion for the purposes of investigation. Thus non-recording of his statement during investigation under Section 161 of Cr. P.C. a great prejudice has been caused to the accused persons because they could not cross-examine this witness effectively on this point. PW. 6 Haeed Khan testified in paragraphs 43, 44 and 45 that after disclosure by Tajbi about the incident in the evening she along with other relatives and PW/5 Mubariq Khan did not go to the spot. He has also denied the fact of arrival of sub inspector PW/14 Amar Singh Badole at village or making enquiry from them about the incident. He also says that after the talk with Tajbi in the evening he did not go to the house of Bahadur Khan for the whole night and remained at his house and also did not try to know who have died and who were alive. This conduct of witness is highly abnormal being close relative of the deceased persons and witnesses PW/1 Tajbi and PW/ 5 Mubariq and Najo Bai.
13. Both these witnesses have not been declared hostile hence the prosecution is bound by their statements, Supreme Court in AIR 1989 SC 772 : (1989 Cri LJ 838) Sukhram v. State of Madhya Pradesh and this Court in 1991 Jab LJ 564 : (1991 Cri LJ 2549) Neeraj v. State of M.P. held as under :
AIR 1989 SC 772 : (1989 Cri LJ 838) :--
The witness has not been treated as hostile by the prosecution and therefore his evidence has also to be taken as part of the prosecution version.
1991 Jab LJ 564 : (1991 Cri LJ 2549) :--
Witness deposing against prosecution story not declared hostile -- his testimony cannot be overlooked simply because he was relative of the accused.
14. Trial Court has held in paragraph 77 of its judgment that evidence of solitary and partly reliable eye-witness PW/5 Mubariq has been duly corroborated by the statement given by PW/1 Tajbi and PW/9 Najobi on material particulars but in the same breath the learned trial Court while discussing the testimony of these witnesses has discarded the testimony of PW/9 Najobai in para 80 of its judgment on the ground of delay in recording her statement under Section 161, Cr. P.C. (Ex. D/7). According to witness Najobai her statement was recorded after three days but statement D/7 is showing the date of recording on 27-4-94 i.e. after seven days. For this purposes PW/13 investigating officer Surayawanshi has given explanation that by mistake this date was recorded. Learned trial Court was not satisfied with this explanation and held that because of this controversy and unsatisfactory explanation it would not be safe to rely on the statement of witness Najo Bai.
15. Learned trial Court has further held in para 84 that the weapons were recovered from open, which was easily accessible place to all, thus inference cannot be drawn that seized weapons were in exclusive possession of the appellants. On these weapons, clothes and other articles neither human blood was present nor blood grouping tallying with the blood groups of the deceased were found. No serologist report was filed by the prosecution, hence held in para 85 that in these circumstances only on the basis of seizure of weapons the accused persons could not be connected with the crime, has erred in holding that this evidence at least could be used for corroboration to the statement of PW/5 Mubariq. This finding of the trial Court is erroneous and self contradictory because when the circumstance itself independently was not conclusively established same cannot be used for the purpose of corroboration to the testimony of partly reliable witness PW/5 Mubariq.
16. These appellants have been convicted for the offence under Section 307/149 of 1PC for attempt to commit murder of witness PW/5 Mubariq but there is no medical evidence on record showing any injuries on his person. The prosecution has come with this explanation that though Mubariq had received injury in the same incident with Farsi, (sharp edged weapon) yet he could not be medically examined because he was busy in making the arrangements for last rites ceremony of dead persons. According to the statement of PW/13 NK Suryavanshi PW/5, Mubariq could not be sent for medical examination in view of his safety and protection of life since he was the solitary eye-witness of the incident, right from the next day he was kept in police station for 15 days untill the accused persons were arrested. This explanation does not satisfy this Court for non examination of injuries of Mubariq. If he had really sustained injuries by sharp edged weapon on his persons then his medical report would have positively strengthened his version as well as the prosecution case in establishing his presence on or near the scene of occurrence. The whole district administration was there and under protection of police force he could have easily been taken to hospital and got medically examined. It appears that all these explanations are concocted one. This is also clear from the explanation given by the witness PW/5 in para 33 of his statement in which he has said that he had received injury with Farsi on his right palm and police wanted to send him for medical examination but he refused because he had to make arrangements for burial ceremony of dead bodies. On second and third day also police wanted to send him for medical examination but he had refused. This witness has nowhere stated that because of his safety to life he was not sent for medical examination and kept in the police station right from the next date continuously for 15 days. The explanations given by this witness and witness PW/13 Amar Singh Bodole investigating officer are materially contradictory to each other. Non-examination of injuries of this witness is fatal to the prosecution case.
17. Learned trial Court has sought cor-roboration to the testimony of PW/5 Mubariq from the evidence of PW/1 Tajbi, but because of her highly abnormal conduct this witness is also not reliable. According to this witness Tajbi when she was coming to her parents' house she had seen all the accused persons total 20 to 22 in numbers near (Nala) rivulet on the way and also over heard their conspiracy about committing murder of deceased persons. After hearing such serious talk about her close relatives her keeping silence for 3 days and maintaining the same even after disclosure of the incident by Mubariq speaks volumes on her conduct. Her silence for three days about requesting Haeed Khan for informing police on telephone also throws considerable amount of doubt, about her trustworthiness. Furthermore, the name of this witness as well as witness PW/9 Najobi who were the important material witnesses about the conspiracy and extra judicial confession as well as about chasing of PW/5 Mubariq by the accused persons, for assault upto his house is not mentioned in the FIR and also in the case diary statement D/1. Eye-witness PW/5 Mubariq has even denied about recording of his case diary statement Ex. D/1 when he was confronted by the defence counsel in paragraph 49 of his statement. PW/1 Tajbi has admitted this fact in para 54 of her statement that she was interrogated by police on 3rd day, prior to that voluntarily she did not give any statement to police though police arrived on the same night. Supreme Court in the case of Muluwa S/o Binda v. State of Madhya Pradesh, AIR 1976 SC 989 : (1976 Cri LJ 717) held as under (para 11) :--
With great respect, we are unable to agree with the learned Judges of the High Court that the appraisement of Smt. Jugatia's evidence made by the trial Judge was "dogmatic" or obviously erroneous." While she was not expected to go about broadcasting in the village to all and Sunday including the neighbours, some of whom might be belonging to the opposite faction, her conduct in not disclosing, even in confidence as to how the occurrence took place and who were the assailants of her father to Ram Charan, Buckle and the two constables. Mohan Singh and Triloksingh did not appear to be the natural conduct of a person who had seen the occurrence.
We can also safely rely on these judgments Palanisamy v. State of Tamil Nadu, AIR 1986 SC 593 : (1986 Cri LJ 551), State of Orissa v. Brahmananda Nanda, AIR 1976 SC 2488 : (1976 Cri LJ 1985), State of Karnataka v. Babu, AIR 1994 SC 31 : (1994 Cri LJ 18), Kishan Chand v. State of Punjab, AIR 1994 SC 32 : (1994 Cri LJ 19), Daljeet Singh v. State of Punjab, AIR 1999 SC 324 : (1999 Cri LJ 454) and Hardyal and Prem v. State of Rajasthan, AIR 1991 SC 269 : (1991 Cri LJ 345) (Para 5) :
18. All these circumstances are making her testimony doubtful and unreliable when this witness herself is untrustworthy and unreliable her testimony could not be used for corroborating the testimony of PW/5 Mubariq. The prosecution has also failed to lead positive and concrete evidence to establish that on the alleged date of incident deceased persons and PW/5 Mubariq had actually gone to attend the case hearing in the Court because order sheet dated 19-4-94 is not reflecting factum of presence of deceased persons in Court, neither their names are mentioned in the order sheet nor their signatures are available on this document Ex. D/12. The contents of the order sheet is showing that the accused persons were represented through counsel on that day and presiding judge was on leave. If accused persons were present then their presence would have been marked along with their counsel in the order sheet.
19. In the present case there is no proper and effective compliance of Section 157, Cr. P.C. regarding sending of the copy of the FIR to the concerned Magistrate forthwith. According to the prosecution, Dehatinalishi D/ 3 was recorded in the night of 19-4-94 at 11.55 p.m. thereafter the same was sent for registration of crime to the police station but copy of the FIR was placed before the concerned Magistrate on 23-4-94 and for this delay the explanation has been given by the prosecution that 20th day was holiday and copy was sent to the concerned Magistrate on 21-4-94 which was received on the same date by the Court clerk and thereafter it was put up for perusal before the Magistrate on 23-4-94. This explanation is not appealing to us. First of all, prosecution has not examined Court clerk for proving acknowledgment given by him on 21-4-1994. These signatures are also not clear as to who was the clerk who had actually received the FIR. The investigating officer has also not given his name in the Court to ascertain whether in fact this copy was received by him on 21st and as to why, he did not place the same for perusal immediately before the Magistrate specially when it was a report disclosing four murders. For delay and improper compliance of the provision of Section 157 of Cr. P.C. Learned counsel for the appellants relied on judgments rendered by Supreme Court in 1994 SCC (Cri) 1551, Arjun Marik v. State of Bihar wherein it has been observed as under :--
"The matter does not stop here. There is yet another serious infirmity which further deepens the suspicion and casts cloud on the credibility of the entire prosecution story and which has also been lost sight of by the trial Court as well as the High Court and it is with regard to the sending of occurrence report (FIR) to the Magistrate concerned on 22-7-1985 i.e. on the 3rd day of the occurrence. Section 157 of the Code of Criminal Procedure mandates that if, from information received or otherwise, an officer in charge of police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence upon a police report. Section 157, Cr. P.C. thus in other words directs the sending of the report forthwith i.e. without any delay and immediately. Further, Section 159, Cr. P.C. envisages that on receiving such report, the Magistrate may direct an investigation or, if he thinks fit, to proceed at once or depute any other Magistrate subordinate to him to proceed to hold a preliminary inquiry into the case in the manner provided in the Code of Criminal Procedure. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest despatch which intention is implicit with the use of the word "forthwith" occurring in Section 157, which means promptly and without any undue delay. The purpose and object is so obvious which is spelt out from the combined reading of Sections 157 and 159, Cr. P.C. It has the dual purpose. Firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation."
20. We can also safely rely on judgments rendered by Supreme Court in the cases of Meharaj Singh v. State of U. P., 1994 SCC (Cri) 1390 : (1995 Cri LJ 457) and State of Rajasthan v. Teja Singh, AIR 2001 SC 990 : (2001 Cri LJ 1176).
21. Though delay in recording the FIR, under Section 154, Cr. P.C. or statement Under Section 161 of Cr. P.C. or sending of the copy of FIR to the Magistrate simpliciter would not discredit the prosecution case if the same is explained by giving reasonable, acceptable and probable explanation appealing to common sense. The effect of delay also depends upon the facts and circumstances of each case. In the present case delay in sending the copy of FIR and recording the statement of PW/1 Tajbi throws considerable amount of doubt. Looking to the seriousness and gravity of the crime and opportunities and time available to the investigating agency as well as the witnesses to perform their onerous duties and acts but their non actualization shows that in fact Dehatinalishi was not recorded as shown and it was ante-dated and ante-timed. For this reference can be made on the judgment reported in AIR 1979 SC 135 : (1979 Cri LJ 51) para 15 (Ganesh Bhawan Patel v. State of Maharashtra).
22. In the present case, names of the assailants and some broad features of the incident were not at all mentioned, even crime No. and merg No. were not mentioned in the inquest report as well as in the copy of the medical requisition sent to the doctor who had performed autopsy. Even, if we, ignore this aspect there is ample material on record as stated above to throw doubt about truthfulness and genuineness of the FIR. Supreme Court in AIR 1980 SC 638 : (1980 Cri LJ 446) Marudanal Augusti v. State of Kerala, held as under :--
The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence.
23. In view of the foregoing discussion after marshalling of factual position and examining the case legally it is established that the prosecution has utterly failed to prove its case beyond all reasonable doubt against the appellants, therefore, they all deserve to be acquitted. Accordingly, the appeal is allowed the impugned judgment, order of conviction is set aside the appellants are acquitted of the charges and directed to be released from jail forthwith. Appellants Nos. 5 and 15 are on bail their bail bonds shall stand cancelled.