BIJOY SINGH AND ANR. v. STATE OF BIHAR

Citation: [2002] 3 S.C.R. 179

Court: Supreme Court of India

Bench: R.P. SETHI, D.M. DHARMADHIKARI

Judgment text

BIJOY SINGH AND ANR. v. STATE OF BIHAR APRIL 17, 2002 [R. P. SETHI AND D. M. DHARMADHIKARI, JJ. ] • Penal Code, 1860 : Sections 302, 149 and 307: Murder-Twelve accused-Evidence indicating involvement of two accused in commission ofcrime-Death of one and injury to other victim- Delay in recording statement ofmaterial injured witness-Delay in lodging FIR and sending report-Inconsistency in evidence of eye-witness-Held in the circumstances involvement of only two accused was established-Their conviction and sentence upheld-Other accused held entitled to benefit of ~ C It is intended to set the criminal law in motion. Any information relating to ,\ the commission of a cognizable offence is required to be reduced to writing by the officer-incharge of the Police Station which has to be signed by the I person giving it and the substance thereof is required to be entered in a book to be kept by such officer in such form as the State Government may prescribe ~ in that behalf.

The registration of the FIR empowers the officer incharge of the police station to commence investigation with respect to the crime reported to him. A copy of the FIR is required to be sent forthwith to the Magistrate empowered to take cognizance of such offence. After recording the FIR, the officer incharge of the police station is obliged to proceed in person or depute one of his subordinate officers not below such rank as the State Government may, by general or special order, prescribe in. that behalf to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. It ... has been held time and again that the FIR is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 161 of the Evidence Act or to contradict him under Section 145 of that Act.

It cannot be used as evidence against the maker at the trial if he himself becomes an accused nor to corroborate or contradict other witnesses. It is not the requirement of law that the minutest details be recorded in the FIR lodged immediately after the occurrence. The fact of the state of mental agony of the person making the FIR who generally is the victim himself, if not dead, or the relations or associates of the deceased victim l'. lpparently under the shock of the occurrence reported has always to be kept in mind. "1 This Court in VNK. Meharaj Singh v. State of U. P. , [1995] Criminal Law· Journal 457] held that FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial.

The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the TJarts played by them, the weapons, if any, used as also the names of the eye--witnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed.

The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the ~ court on guard to find out as to whether the version as stated in the Court was ~ the same version as earlier reported in the FIR or was the result ofdeliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in BIJOY SINGH v. STATE OF BIHAR [SETHI, J. ] Section 157 Cr. P. C. is the mandate of law. Delay wherever found is required "' to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law.

It is always for the prosecution to explain such a delay and if reasonable, plausible and sufficient explanation is tendered, no adverse inference can be drawn against it. In the instant case the copy of the report referred to in Section 157 Cr. P. C. is shown to have been received by the Magistrate on 27th August, 1991. Even though there is a mention in the FIR that its copy was sent through special messenger, yet no date or time ofsending the said report is mentioned. The Magistrate, receiving the copy of the report, has also not noted the time of its receipt on 27th August, 1991. We are ofthe opinion that the Magistrates receiving reports under Section 157 Cr. P. C. , particularly when it relates to the commission of heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. B. B.

Singh, learned counsel appearing for the State has pointed out the existence of various circumstances which may perhaps be the cause of delay in sending the copy " of the report and its receipt by the Magistrate but surely there is a difference between the "may be" and "must be". The prosecution has apparently failed to explain the delay in sending the copy ofthe said report in terms of Section 157 Cr. P. C. to the Magistrate of the area. This aspect has been highlighted by the learned counsel for the appellant to contend that many of the accused were innocent and wrongly roped in the case allegedly on account of enmity existing between the complainant and the accused party. There is some substance in such a submission. • We have no doubt in our mind regarding the involvement of Jawahar Singh (A-2) and Upender Singh (A-3) in the commission of the crime which resulted in the death of Vijay Singh and injuries to Sanuj Singh (PW5).

However, there are circumstances which, when taken together, cast a reasonable doubt in our mind regarding the involvement ofthe other accused persons in the commission of the crime for which they have been charged, convicted and sentenced. Such circumstances are as under: " (i) After the occurrence injured Sanuj Singh (PW5) was taken to Primary Health Centre at Sarmera by Shiv Nandan Singh, Kamala Singh and Gano Singh but no report was lodged in the police A. station which is stated to be tOO yards away from the Health ~ Centre. The explanation offered is that as the doctor on duty had informed the police station about the arrival of the injured in the Hospital, no necessity was felt for reporting the matter in detail '1 at the police station. Be that as it may such a conduct would put the court on alert to find out whether time was bargained by the relations of the deceased and the injured to deliberate before lodging the report or not.

The injury to Sanuj Singh (PWS) and death of Vijay Singh being not in dispute, the only possibility of not getting the matter reported is the doubt regarding the involvement of the other accused persons. (ii) Statement of Sanuj Singh (PW5) was ilot recorded till 4th September, 1991. No reasonable explanation has been assigned for not recording the vital and important statement of PWS who was concededly injured in the occurrence. The delay has been tried to be explained on the ground of his being unconscious when brought to the Hospital at Sarmera. Assuming that PWS was unconscious or under shock at the time when brought in the Hospital, there is nothing on the record to show that he continued to be unconscious thereafter or the investigating officer tried to "1 find out about his health or his mental condition to make the statement. Dr.

Anjani Kumar (PW9) who examined PW5 at Primary Health Centre, Sarmera has stated that he examined the patient and sent the DO slip to the police station. He noted the injuries on ihe person of PW5 but states that "I have also not mentioned in the report regarding the condition of the patient". In his cross examination he has stated that in the injury report it is not mentioned as to whether the injured was conscious or not. Dr. .. ,, Shanker Kumar Jha, (PWI I), who was Medical Officer in Sadar Hospital, Biharsharif where Sanuj Singh (PW5) was taken from Primary Health Centre, Sarmera for treatment has stated that in the bed-head ticket of Sanuj Singh it is stated that he was conscious. In reply to a question as to whether doctor at Primary Health Centre, Sarmera had sent him a report as to whether the patient was unconscious, the witness had replied, "such reports are not sent normally. No report of such type was received by - ~ me".

The nature of the injuries on the person of Sanuj Singh (PW5), as noticed by Dr. Anjani Kumar (PW9) would also indicate that the injured could not have remained unconscious for such a ' long period. The injuries found are lacerated injury on the forehead, left side of the scalp, bruise on the forehead, bruise on the left hand above wrist joint etc. , and also multiple small irregular wounds on lateral aspect of left side of buttock and also small irregular wounds on left side of back and left forearm . The delay in recording the statement ofSanuj Singh (PW5), the most material witness has cast a cloud of suspicion on its credibility in so far as involvement of persons other than Jawabar Singh (A-2) and Upender Singh (A-3) are concerned. In cases of party factions and group rivalries there is a tendency on the part of the prosecution witnesses to implicate some innocent persons also along with the guilty ones.

Generally in such cases the witnesses of the prosecution cases are prone to exaggerating the culpability of the actual assailant$ and to extend the participation in the occurrence of some possible innocent members of the opposite party as well. In such cases, as noticed earlier, a duty is cast upon the court to sift the evidence and after a close scrutiny with proper care and caution to come to a judicial conclusion as to who out of the accused persons can be considered to have actually committed the offence. This Court in Deep Chand v. State of Haryana, [1969) 3 SCC 890 pointed out that the maxim " falsus in uno falsus in omnibus" is not a sound rule to apply in the conditions in this country and, therefore, it is the duty ofthe court in cases where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution.

If the remaining evidence is trustworthy and the substratum of the prosecution case remains intact, then the court should uphold the prosecution case to that extent. To the same effect is the judgment ofthis Court in Ranbir > and Ors. v. State of Punjab, AIR (1973) SC 1409. We are, therefore, of the opinion that non recording of the statement of Sanuj Singh (PW5) for about 9 days left the said witness with no option but to make statement according to the already tailored FIR. Though his testimony is trustworthy and cannot be totally brushed aside, yet after sifting the grain out of the chaff we find the exaggerated version regarding the involvement of accused persons except A-2 and A-3 . (iii) In his statement recorded in the court, Brij Nandan Singh (PW7) has stated that Rarnnandan Singh (A- l) had ordered Jawahar Singh ' (A-2) to fire bullets on Vijay Singh and Upender Singh (A-3) to - ·~. fire bullets on Sanuj Singh (PW5). However, in his fardbayan, the basis of the FIR.

the witness nowhere stated that the bullets were fired at the behest of Ramnanandan Singh. Had it been a fact, such an omission could not have occurred at the time of lodging the FIR. The improvement made at the time ofdeposition in the court is suggestive ofthe fact that the prosecution witnesses including PW? had attempted to implicate some persons other than the real culprits as accused persons responsible for the death of Vijay Singh and injuries to Sanuj Singh. (iv) Failure on the part of the officer-incharge of the police station to register the case despite receiving information in the form of DO from Dr. Anjani Kumar (PW9) at about I0. 30 p. m. on 25th August, 1991 also casts a doubt about the involvement of some of the accused persons in the commission of the crime.

(v) No other accused excepting A-2 and A-3 is shown involved in the commission of the crime for allegedly having come on the spot armed with fire arms and indulging in indiscriminate firing, Concededly no fire allegedly shot by those accused has hit an: person, building or structure. No fire-arm used, cartridge, splinter and wads have been recovered by the prosecution. The prosecutio has also not assigned any reason for not effecting the recovery f the fire arms from the aforesaid persons. It appears that such evidence was led only to implicate the aforesaid persons but the absence of any proof regarding their participation in · commission of the crime, they are entitled to the benefit reasonable doubt in their favour. We are not in agreement with the arguments of Mr. U. R.

Lalit, Senior Advocate appearing on behalf of the appellants that all the witnesses being related to each other and interested in the success of the prosecution cannot be relied upon for holding the appellants guilty for the commission of the offence. For merely being relatives of the deceased or the injured is no ground to reject the testimony of the witnesses who are otherwise found to be trustworthy and reliable. In the instant case two courts have rightly found that the presence of prosecution witnesses being PWs I, 2, 4, 5 and 7 on spot - -... version, we feel that their testimony inspires confidence- to hold the real culprits guilty for the commission of the crime. The whole of the case of the t ' • prosecution cannot be discarded and all the accused are not entitled to be ~ . acquitted.

< There is no denial of the fact as it has been proved beyond any shadow of doubt that Jawahar Singh (A-2) and Upender Singh (A-3) had come on spot with fire arms and had actually fired at the deceased and Sanuj Singh as a consequence of which Vijay Singh died and Sanuj Singh was injured. Whereas A-2 is held guilty for the commission of offence under Section 302 and 307 read with Section 34, A-3 is held responsible for the commission of the offence under Section 307 and 302 read with Section 34. The conviction and sentence awarded to Jawahar Singh (A-2) and Upender Singh (A-3) by the trial court and upheld by the High Court is confirmed. So far as the presence of other accused persons are concerned, the same being doubtful, they cannot be convicted on the ground of sharing common object as held by the courts vide the judgments impugned in these appeals.

Merely because the aforesaid accused persons are related to A-2 and A-3 and were on inimical terms with the deceased and the injured is no ground to hold them guilty despite the fact that their presence on spot is not free from doubt. There is reasonable doubt in our mind regarding the involvement of rest ofthe accused persons in the commission of crime in which Vijay Singh died and Sanuj .. Singh was injured. Giving the benefit of doubt, to Rarnanandan Singh (A-1), Chulhan Singh @ Ramswarath Singh (A-4), Kamta Singh (A-5), Mahendra ' Singh (A-6), Ashok Singh (A-7), Navin Singh (A-8), Devondra Singh (A-9), E. Manoj Singh (A-IO) and Vijay Singh (A-12), their conviction and sentence as awarded by the trial court and confirmed by the High Court is liable to be set aside. Awadesh Singh (A-11) who was also convicted with the aid of Section 149 ! PC has not filed an appeal in this Court. In view of the judgments of • this Court in Raja Ram and Ors. v. State ofMP.

, (1994) 2 SCC 568, Dandu Lakshmi Reddy v. State ofA. P. , (1999) 7 SCC 69 and Am1 Rai v. State of Bihar, IT (2001) 6 SC 2001 he is also entitled to the benefit ofthis judgment. This Court has set up a judicial precedent that where on evaluation of the case if the court reaches the conclusion that no conviction of any accused is possible, the benefit of that decision must be extended to the co-accused, similarly situated, though he has not challenged the order by way of an appeal. · A Under the circumstances the appeals are partly allowed. The conviction and sentence awarded to Jawahar Singh (A-2) and Upender Singh (A-3) is t I r A upheld. Giving them the benefit ofdoubt Ramanandan Singh (A·l), Chulhan .. _ Singh @ Ramswarath Singh (A-4), Kamta Singh (A-5), Mahendra Singh (A- 6), Ashok Singh (A-7), Navin Singh (A-8), Devendra Singh (A-9), Manoj Singh (A-10), Awdesh Singh (A-11) and Vijay Singh (A-12) are acquitted.

The acquitted persons shall be set at liberty forthwith unless required in some other case. B T. N. A. Appeals Partly allowed. ...