Sunday 25 May 2014

FIR placed before Magistrate three days after registration –Cannot be concluded that FIR was antetimed, ante dated and fabricated.


FIR placed before the Magistrate three days after registration –Cannot be 

concluded that FIR was antetimed, ante dated and fabricated. 

We also fully agree with the views expressed by the High Court that the FIR was not 

anti dated, anti timed or was subsequently created. The verbal submission of PW 1 was 

reduced into writing by PW 15 and the same was treated as the FIR (Ext.3). The formal FIR 

was marked ext.3/3. Those documents would clearly indicate that the incident took place on 

26.4.1984 at about 12 hrs and the FIR was recorded at village Pechaliya at 6.05 PM and after 

it was sent to the Khairasole police station which was registered as Khairasole P.S. Case 

No.10 dated 26.4.1984 at 7.25 P.M. There is nothing to show that the FIR was anti dated, anti 

timed or fabricated. Merely because the FIR was placed before the learned Magistrate on 

30.4.1984, three days after registration of FIR, it cannot be said that the FIR was anti timed, 

anti dated and fabricated. In fact, no question was put to the Investigating Officer as to the 

cause of delay in sending FIR to the Magistrate.

 REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No.1268 OF 2007



GUIRAM MONDAL                                      .. Appellant
                                   Versus
STATE OF WEST BENGAL                               .. Respondent



                               J U D G M E N T



K. S. Radhakrishnan, J
Citation;2013 (2)Crimes 324 (SC)
Dated;April 26, 2013




1.    The appellant, the 10th accused in Sessions Case No.20  of  1986,  was
charge-sheeted along with others for the offences punishable  under  Section
147, 148, 149, 323 and 302 of the Indian Penal Code  and  Section  25/27  of
the Arms  Act.   The  Trial  Court,  after  appreciation  of  the  oral  and
documentary evidence vide its judgment dated  22.4.1987  acquitted  all  the
accused persons, except Accused No.3 Tarun Mondal,  who  was  convicted  for
the offences punishable under Section148 and 302  of  IPC  for  causing  the
murder of Amrita Dome and sentenced him  to  suffer  imprisonment  for  life
under Section 302 IPC.



2.    The State of  West  Bengal,  aggrieved  by  the  order  of  acquittal,
preferred G.A. No.22 of 1987 before the High Court of  Calcutta.   The  High
Court vide its judgment dated  28.11.2006  partly  allowed  the  appeal  and
convicted the appellant along with four others, while maintaining the  order
of acquittal passed by the trial Court, in respect of rest  of  the  accused
persons.  Tarun Mondal, 3rd accused, was further found guilty of the  murder
of Sultan Khan.



3.    We are, in this case, concerned only with the appeal filed  by  Guiram
Mondal, 10th accused.  The prosecution case, in short, is that on  26.4.1984
at about 12 hours the accused  persons  formed  an  unlawful  assembly  with
deadly weapons and took along with them Amrita Dome and Sultan Khan  through
a kuchha road in village Pechaliya  and,  in  the  process,  assaulted  both
Amrita Dome and Sultan Khan.  Some of the witnesses, who  are  relatives  of
the deceased Amrita Dome, tried to save him but they were also assaulted  by
the accused persons and the informant Sadananda Dome (PW1) was shot at by  a
pipe-gun  and  he  sustained  injuries.   While  the  accused  persons  were
proceeding as such, Amrita Dome managed to escape from  their  clutches  and
took shelter in the house of  Monohar  Mondal  @  Manu  Mondal  (PW2).   The
accused persons, however, chased Amrita Dome and  brought  him  out  of  the
house of Manu Mondal and killed him in the passage or pathway lying  between
the house of Manu Mondal and his nephew  Sahadeb  Mondal.   Accused  persons
after murdering Amrita Dome left the spot to  chase  Sultan  Khan,  who  was
left injured in front of Durga temple  which  was  close  to  the  house  of
Monohar Mondal.  Sultan Khan was also murdered  by  them  and  they  carried
away his death body to the grazing field and left it there.




4.    Sadananda Dome (PW1) then passed this information, which was  recorded
in writing by PW 15 on 26.4.1984 at 6.05 PM and the same was treated as  the
FIR.  The same was sent to the police station  and  was  received  there  at
7.25 PM and on the basis of that FIR  a  case  was  registered  against  the
accused persons and they  were  charge-sheeted  for  the  offences,  already
mentioned earlier.  PW 15, the Investigating Officer visited  the  place  of
occurrence  and prepared the sketch map and conducted  the  inquest  in  the
presence of PW 10, the Pradhan of the Gram Panchayat and sent both the  dead
bodies for post-mortem examination through constable PW 13.



5.    PW 12 Dr. S. Nath, conducted the post-mortem on both the  dead  bodies
and opined that the death was due to effect of head  injury  and  associated
injuries which  were  anti  mortem  and  homicidal  in  nature.   PW  15  on
13.5.1984 arrested various accused persons including the appellant and  were
brought before  the  trial  court.   On  the  side  of  the  prosecution  16
witnesses were examined.  PW 1 Sadananda Dome, the first  informant  is  the
brother of the deceased Amrita Dome.    Monohar Mondal, in whose  house  the
deceased Amrita Dome took shelter, was  examined  as  PW2.     Menoka  Dome,
wife of deceased Amrita Dome, was also examined as PW  3  and  Sankar  Dome,
the father of the deceased Amrita Dome was also examined as PW  5.   On  the
side of the defence, Joydev Garian DW1 was examined.



6.    Dr. S. Nath was examined as PW12, who  conducted  the  post-mortem  on
the dead bodies on 27.4.1984 deposed that on the dead body  of  Amrita  Dome
he found (1) one incised wound on right lateral aspect of  forehead  2.5”  x
2” x .5” (2) one incised wound in mid-region of forehead 3” x 2” x  .5”  (3)
one incised would 3” below the midpoint of chin 4” x 2” x  2.5”  laryns  and
tranches cut off.  He also noticed fracture of 4th, 5th ^ 6th  ribs  on  the
right side (2) fracture of 4th and 5th ribs on  the  right  side  (3)  right
lung was found ruptured.   Further,  it  was  also  noticed  a  fracture  of
frontal bone.  PW 12 has opined that the death was due  to  the  effects  of
head injury and associated injury was ante mortem and homicidal  in  nature.
PW12 conducted the post-mortem over the dead body of Sultan Khan  and  found
(1) one incised would 3” x 2” x 1” on back portion of head (2)  one  incised
would on left lateral aspect of neck 2” x 1.5” x  1”  and  (3)  one  incised
would 4” x 3” x 5” x4” aspect of neck  2”  x  1.5”  x  1”.   He  also  found
fracture of 4th, 5th, 6th and 7th rib of the  right  side  and  fracture  of
4th, 5th and 6th ribs of the left side.   He  found  fracture  of  occipital
bone and both the lungs were ruptured.  In his opinion,  death  was  due  to
head injury and associated injury ante mortem and homicidal in nature.



7.    PW 1, the brother of the deceased Amrita Dome, who is also an  injured
witness, had clearly and unequivocally supported the  prosecution  case  and
stated that he had seen the accused persons armed with deadly  weapons  like
bhojali, axe, pipe gun and dragger etc. catching hold of his brother  Amrita
Dome and one Sultan Khan.   Amrita Dome  had  managed  to  escape  from  the
clutches of the accused persons and took shelter in  the  house  of  Monohar
Mondal.  PW1 also deposed that Sultan Khan in that  process  was  half  dead
and lying in front of Durga Temple.  PW 1 deposed that the  accused  persons
took Amrita Dome out of the house  of  Monohar  Mondal  and  assaulted  with
lathi, dagger, bhojali etc.  PW 1 stated that he tried  to  save  his  elder
brother but was shot at by a pipe-gun which caused injury on  his  shoulder.
PW 1 also noticed that Kristo Gorain cut  the  throat  of  Sultan  Khan  and
thereafter brought Sultan Khan to a grazing field and left the body there.



8.    We have also gone through the evidence of the eye-witnesses PWs 2,  3,
4, 8 and 11 and their versions corroborate fully the version of  PW  1,  the
first informant and eye-witness, relating to the  incident  of  assault  and
murder of Amrita Dome and Sultan Khan.  The  specific  part  played  by  the
various accused persons, including  the  appellant,  has  been  narrated  by
those witnesses.  PW 2 had deposed that on the date of the incident  he  was
in the cow-shed and as soon as he heard a hue  and  cry,  he  came  out  and
found that some persons,  including  the  appellant,  forcibly  taking  away
Amrita Dome from the house of Manu Mondal.  PW  2  had  also  requested  the
accused persons to not to assault Amrita Dome but was  pushed  away  by  the
accused persons.  Later he found Amrita Dome dead and the body was lying  on
the path-way between his house and the house of Sadananda Mondal.



9.    PW 3, the wife of Amrita Dome, also fully  supported  the  prosecution
case and also PW8, the mother of the deceased Amrita Dome  and  P.W.11,  the
wife of the  brother  of  the  deceased.    The  High  Court  has  correctly
appreciated the evidence rendered by those witnesses.  The High Court  after
examining the oral and documentary evidence came to the conclusion that  the
trial court was  completely  in  error  by  over-looking  some  crucial  and
important evidence and placed  much  reliance  on  non-mention  of  name  of
accused persons in the  inquest  report.   The  High  Court,  in  our  view,
correctly applied the legal principle that non-mention of name  of  the  few
accused persons in the inquest report is of no consequence.



10.   The inquest report normally would not contain the manner in which  the
incident took place or the names  of  eye-witnesses  as  well  as  names  of
accused persons.  The basic purpose of  holding  an  inquest  is  to  report
regarding the cause of death, namely  whether  it  is  suicidal,  homicidal,
accidental etc.   Reference may be made to the Judgment  of  this  Court  in
Pedda Narayana and others v. State of Andhra Pradesh (1975) 4  SCC  153  and
Amar Singh v. Balwinder Singh and Others  (2003)  2  SCC  518.     In  Radha
Mohan Singh @ Lal Saheb and Others v. State of U.P. (2006) 2 SCC  450,  this
Court held that  the  scope  of  inquest  is  limited  and  is  confined  to
ascertainment of  apparent  cause  of  death.   Inquest  is  concerned  with
discovering whether in a given case the  death  was  accident,  suicidal  or
homicidal, and in what manner or by what weapon or instrument  the  injuries
on the body appear to have been inflicted.  The details of overt  acts  need
not be recorded in the inquest report.  The  High  Court  has  rightly  held
that the manner  and  approach  of  the  trial  court  in  disbelieving  the
prosecution story by placing reliance on the inquest  report  was  erroneous
and bad in law.



11.   We also fully agree with the views expressed by the  High  Court  that
the FIR was not anti dated, anti timed or  was  subsequently  created.   The
verbal submission of PW 1 was reduced into writing by PW  15  and  the  same
was treated as the FIR (Ext.3).  The formal FIR was marked  ext.3/3.   Those
documents would clearly indicate that the incident took place  on  26.4.1984
at about 12 hrs and the FIR was recorded at village  Pechaliya  at  6.05  PM
and after it was sent to the Khairasole police station which was  registered
as Khairasole P.S. Case  No.10  dated  26.4.1984  at  7.25  P.M.   There  is
nothing to show that the FIR was  anti  dated,  anti  timed  or  fabricated.
Merely  because  the  FIR  was  placed  before  the  learned  Magistrate  on
30.4.1984, three days after registration of FIR, it cannot be said that  the
FIR was anti timed, anti dated and fabricated.  In  fact,  no  question  was
put to the Investigating Officer as to the cause of delay in sending FIR  to
the Magistrate.



12.   This Court in State of  Jammu  and  Kashmir  v.  S.  Mohan  Singh  and
Another (2006) 9 SCC 272 held that the  mere  delay  in  sending  the  First
Information Report  to  a  Magistrate  cannot  be  a  ground  to  throw  out
prosecution case if the evidence adduced is  otherwise  found  credible  and
trustworthy.  We are of the view that the High Court has rightly  held  that
there is no reason to hold that the FIR was a fabricated  document  or  anti
dated or anti timed.



13.   We are also not impressed by the  argument  of  Ms.  Rupali  S  Ghose,
learned counsel appearing for the appellant, that not  much  reliance  could
be placed on the evidence of eye-witnesses as most of them are relatives  of
Amrita Dome and not  a  single  independent  witness  was  examined  by  the
prosecution.  In our view, merely because a witness is  a  relative  of  the
deceased is not  a  reason  for  discarding  his  evidence.   Many  a  time,
strangers will not come forward depose  as  witnesses,  even  if  they  have
witnessed the crime.  Further, possibility of influencing such witnesses  is
also not uncommon.  Evidence of relatives can be acted  upon  if  the  court
finds that the evidence of such a witness is reliable and  trustworthy.   In
this connection reference may be made to the  Judgments  of  this  Court  in
Seeman @ Veeranam v. State  by  Inspector  of  Police  (2005)  11  SCC  142,
Alamgir v. State (NCT, Delhi) (2003) 1 SCC 21, Dalbir  Kaur  and  Others  v.
State of Punjab (1976) 4 SCC 158, State of U.P. v. Jodha  Singh  and  Others
(1989) 3 SCC 465, Labh Singh and Others v. State  of  Punjab  (1976)  1  SCC
181, Visveswaran v. State represented by SDM (2003) 6 SCC 73.



14.   PW2, Monohar @ Manu Mondal, it may be noted, was  not  a  relative  of
Amrita Dome.  A  close  scrutiny  of  the  evidence  rendered  by  the  eye-
witnesses, some of which are relative of the deceased,  clearly  establishes
the involvement of the accused.  Further, in the cross  examination  of  the
eye witnesses, we have not  noticed  any  serious  contradiction,  omission,
infirmity, defect or lacuna which can make their evidence  unbelievable  and
to make  them  untrustworthy  witnesses.   Further,  the  evidence  of  eye-
witnesses have been fully  corroborated  by  the  evidence  of  PW  12,  the
autopsy surgeon relating to the nature of injuries and  places  of  injuries
on the person of the deceased.  We notice  that,  earlier,  the  appeal  was
filed by Guiram Mondal  along  with  Kisto  Gorain  and  Madhusudan  Mondal.
Appeal was initially dismissed on 17.9.2007  since  they  had  not  complied
with the orders of this Court dated 19.4.2007 for surrendering.  Later,  the
appellant herein was arrested and his case was  restored  on  28.11.2008  by
this Court.



15.   Considering the totality of the  evidence  and  circumstances  of  the
case, we are of the view that  the  High  Court  has  rightly  reversed  the
judgment of the  trial  court  after  finding  the  appellant  guilty  under
Section 302 read with Section 148 of IPC for the murder of Amrita  Dome  and
awarded the sentence of life imprisonment.  We, therefore,  find  no  reason
to interfere with the judgment of the High Court.  The  appeal  lacks  merit
and the same is dismissed.


                                                             ……………………………..J.
                                              (K.S. Radhakrishnan)








                                                             ……………………………..J.
                                              (Dipak Misra)
New Delhi,
April 26, 2013

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