Document Fragment View

Matching Fragments

(vii) In Kailash Gour v. State of Assam (AIR 2012 SC

786), the Apex Court considered a case relating to a mob attack where there was delay in lodging FIR and it was held at paragraph 27(ii) as under:-

"27(ii) The least which the investigating officer would do was to record the statement of the eyewitnesses or send the eyewitnesses to the police station for getting the first information report recorded. Interestingly, while the alleged witnesses to the occurrence were first sent to the police station, no one ever questioned them about the incident nor did the witnesses volunteer to make a statement. It defies one's imagination how Md. Hanif who was on the spot and who is alleged to have seen the occurrence was not questioned by the investigating officer especially when he did not have any injury much less a serious one requiring immediate medical care and attention. Even if the eyewitness was injured, there is no reason why his statement could not be recorded in the hospital to Crl.Appeal Nos.276/11 & 435/19 ensure that an FIR is registered without undue delay and those responsible for committing the crime brought to book. Failure of the prosecution to provide any explanation much less a plausible one shows that the investigating agency had no clue about the perpetrators of the crime at the time when it reached the spot or soon thereafter nor did anyone claim to have seen the assailants, for otherwise there was no reason why they could not be named and an FIR registered immediately. This Court in State of H.P. v. Gian Chand dealt with the effect of failure of the prosecution to satisfactorily explain the delay in the lodging of the FIR and declared that if the delay is not satisfactorily explained the same is fatal to the prosecution. This Court observed:

50. As far as accused 4 to 8 are concerned, some doubt had been created in the mind of the Court regarding the identification and also their presence. That there was an unlawful assembly viz., a mob attack by about 20 persons and several of them were wielding weapons like sword, iron rod, knife etc., is rather clear from the nature of injuries suffered by the victim. Therefore, it was a mob attack and several persons were involved in such a mob attack. The Court below however found that there is proper identification and evidence only against accused 1 to 3 and therefore they alone were convicted. The police had charge- sheeted 8 accused and the other members of the mob could not be identified or brought before Court.

52. As far as accused 1 to 3 are concerned, there is cogent and credible evidence of PW4 and PW5. Their involvement in the crime was specifically mentioned even at the earlier stage of the proceedings when the FIS was lodged by PW1 at 7.00 am on 4/1/2002. Of course, there is some delay in registering the FIR. But while considering the over all factual situation arising in the case, this is one among the cases in which there was a series of murders at Marad which was on account of a communal riot between two groups of the community and therefore the primary duty of the police was maintenance of law and order and all police officials at the relevant time would have been involved in Crl.Appeal Nos.276/11 & 435/19 the maintenance of law and order. Though PW4 and PW5 were relatives of the deceased, their evidence is not shaken during cross-examination. The contradictions and omissions pointed out are not material to discard their oral testimony of having witnessed the incident. They carried the injured to the mosque and from there he was taken in an autorickshaw by persons including PW7. PW7 has also stated the presence of PW4 Harris who was one among the persons who carried Kunjikoya to the mosque. During cross-examination, he stated that he had given statement to the police that he saw Moideen, Nasar, Ashraf and Harris bringing Kunjikoya to the mosque from Marad beach end. He only said that he did not say that he had seen it from the junction. In a case involving a crime, minor discrepancies and omissions are always possible. Court will have to look into the entire evidence as a whole and appreciate the same in order to ascertain the true content of the prosecution case and whether it is proved beyond reasonable doubt. This is a case in which the prosecution could adduce evidence only through persons who are acquainted with Kunjikoya especially in a case where the crime forms part of a communal riot, the prosecution party will Crl.Appeal Nos.276/11 & 435/19 definitely be the members of one community and the Court will have to ensure that the evidence is credible enough to convict an accused in a case of murder. While testing the credibility of evidence of PW4 and PW5, we do not think that any of the omissions or discrepancies pointed out by the defence are sufficient enough to discard their oral testimony. They have witnessed the incident and they brought the injured up to the mosque from where he was taken to the hospital by a few others. When they speak from their mind, there might be few discrepancies in their evidence especially when they see a ghastly incident by which a mob attacks one person and he is lynched to death. We do not think that the trial Court had committed any error in convicting the accused.