RAJESH @ RAJU CHANDULAL GANDHI AND ANR. v. STATE OF GUJARAT

Citation: [2002] 2 S.C.R. 304

Court: Supreme Court of India

Bench: R.P. SETHI, K.G. BALAKRISHNAN

Judgment text

RAJESH @ RAJU CHANDULAL GANDHI AND ANR. v. ~ STATE OF GUJARAT MARCH 7, 2002 [R. P. SETHI AND K. G. BALAKRISHNAN, JJ. ] Indian Penal Code, I860: Sections I20B, and 302 Murder_:_Testimony of eye witnesses-Cogent reliable and confidence inspiring-Concurrent findings of Court below as to guilt of accused- Conviction held justified-Held, no interference called for with impugned judgment on facts FIR was not ante-timed-Non-mentioning ofFIR No. and name ofeye witnesses in Inquest Panchanama insignificant-Withholding of report offinger print expert facts not relevant. The appellants were prosecuted under Sections 120B, 452 and 302 of the Indian Penal Code, 1860 and also under Section 25(l)(b) ofthe Arms Act All the three accused who are related to each other were alleged to have . ~committed a murder pursuant to criminal conspiracy hatched by them.

The motive for the crime was enmity between deceased and accused as the deceased was considered an impediment in love affair between 'N' and 'M', the former being daughter of sister of one of the accused. The prosecution case was that on 7. 2. 1993 at about 1. 00 p. m. accused persons came in their maruti car to the farm ofthe deceased. They assaulted the deceased with sharp edged weapons and gave several blows one after the other. The incident was witnessed by PW 1, nephew of the deceased and PW 12, the cook. First Information Report was lodged by PW 1 on 7. 2. 1993 at 2. 40 p. m. in which the time of occurrence was stated to be 1. 15 p. m. After taking his statement PW 1 was sent to the police station where detailed complaint was recorded. Therefore, in the inquest panchanama (Exh. P 37) which was stated to have started at 3 p. m. and completed at 3. 45 p. m. , the name of the complainant or the number of the FIR was not mentioned. However, in the Panchanama (Exh. P.

32) stated to have been recorded between 4 to 6 p. m. , the name of PW 1, r·and FIR no are specifically mentioned. Trial Court convicted the appellants of the offences charged and the High Court upheld their conviction. In appeal to this Court it was contended on behalfofthe appellants that I RAJESHv. STATE OF GUJARAT 305 circumstances of the case probabilise that the FIR was ante-timed for planting introduction of eye-witnesses; (ii) the statement made by Doctor in his cross- ;~ examination that death had occurred within 9-12 hours before the postmortem examination shows that deceased must have died much before 1. 15 p. m.

; (iii) the FIR number and the name of witnesses are not mentioned in the Inquest Panchanama; (iv) Adverse inference should be drawn against prosecution because the opinion of finger print expert has been withheld; (v) the deceased was indulging in satta betting for riots by anti-social elements and therefore there was a probability of some other people having committed the offence. For this reliance was placed on an advertisement for satta as well as on the fact that blood stains were found on a number of places in the house of the deceased which suggested that occurrence had not taken place outside - \. the house as alleged. Dismissing the appeal, the Court HELD: 1. There is no reason to interfere with the concurrent findings of fact arrived at against the accused holding them guilty for which they have been convicted and sentenced. [317-G] 2. In the instant case all requi conc;:ededly the post mortem examination was conducted between 6. 10 p. m. to 7. 0Q p. m.

A perusal of his statement shows that in reply to a further question. in the cross-examination the aforesaid witness had stated "it may be that the. death might have occurred between 9-12 hours. This 9 to 12 hours means the 9 to 12 hours before the time I started the post mortem and completed the post-mortem". At another place the said witness had stated "I can say that probably the death of the deceased might have occurred within about 12 hours from the time of starting the post-mortem examination". The doctor had formed his opinion on the basis of rigor mortis and the lividity found at the time of post-mortem. There is, therefore, no medical expert opinion about the exact time of death. Otherwise also the opinion of the doctor cannot ~~ul>stituted for the statement of the eye-witnesses who have been believed tiy both the courts. From the statements of Rakesh (PWI), Umaben (PWIO) and Satish (PW\2) it is established that deceased was alive upto 1. 15 p. m.

and had died after receiving about 30 injuries on his person mostly with sharp edged weapons. Even on this ground also it would not be probable to hold that the First Information Report had been ante-timed. Both the trial court as well as the High Court have found on facts that the First Information Report was lodged without delay and its copy despatched to the Magistrate. The delay ofreceipt ofthe copy ofthe FIR by the magistrate, if any, was held to have been properly accounted for by the prosecution. Abdul Rehman (PWl4) who is the investigating officer had stated that after registration of the case a report under Section 157 Cr. P. C. was also sent. The circumstances emerging from the prosecution evidence show that the occurrence had taken place at about 1. 15 p. m. , the information of the scuffle was received by the police at 2. 10 p. m. , Smt. Umaben (PWIO) reached on the spot at 2. 30 p. m. and Rakesh (PWI) sent to the police station for recording the FIR at 2. 40 p. m.

The Inquest (Exh. P•37) was prepared between 3. 00-3. 45 p. m. and Inquest (Exh. P-32) between 4 to 6 p. m. The events of circumstances narrated by the witnesses do not leave any doubt in our mind to hold that the occurrence had actually taken place at about 1. I5 p. m. in consequence of which Girish Namdar died and· the FIR was registered on the basis of the statement of Rakesh (PWI) at 2. 40 _p. m. in Police Station Vatva. . Relying upon the judgment ofMeharaj Singh (UNk. ) v. State of U. P. , (1994] 5 sec 189, the learned counsel appearing for the appellants has submitted that FIR in a criminal case is a vital and valuablt piece of evidence for the purpose of appreciating the evidence led in the trial. The object of insisting upon prompt lodging of the FIR is to obtain information regarding the circumstances in which the crime was committed including the names of actual culprits and the part played by them, the weapon of offence used as also the names of the witnesses.

One of the external checks which the courts generally look for is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. The absence of details in the inquest report may be indicative of the fact that the prosecution story was still in embryo and had not given any shape and that the FIR came to be f- ---recorded later on after due deliberations and consultation and was then antetimed to give it a colour of prompt lodged FIR. The reliance of learned counsel for the appellant on Meharaj Singh's case is of no help to him in the instant case inasmuch. as· all requisite details are mentioned in Panchnama Exhibit P-32. Mere omission to mention the number of the FIR and the name of the complainant in Exh. P-37 has not persuaded us to hold that the FIR was ante-timed in view of the peculiar facts and circumstances of the case as noticed by the trial court, the High Court and by us hereinabove.

· It has also been argued on behalf of the appellants that for withholding of opinion of finger print expert, adver~e inference be drawn against the prosecution. It has come in evidence (Exh. 32) that finger print expert was present on spot who had taken the prints from the pieces of broken glass and some other articles lying in the farm of the deceased. It is also not disputed that the report of the finger print expert has not been produced in the case. :D The withholding ofthe report ofthe finger-print expert, ifany, would definitely cast a doubt on the prosecution version and presumption of such report being against the prosecution has to be drawn. However, in the facts of the case we , . >find that despite taking doubted finger prints from the spot, the investigating officer had not taken finger prints of any of the accused. The investigating officer has stated in ~he court that on 25. 2. 1993 total 31 items were sent for examination. In Exh. 64 there is a note at Item No.

9 of having sent broken pieces of glass at No. 11 having found chance print and Item No. 12 of having found another chance print. The pieces of glass sent show that there was "B" group blood which was the blood group of the deceased. In the absence of finger prints of the accused persons no finger print expert could have given any opinion regarding the chance prints found on glasses and other articles. It appears that as no finger prints for comparison were taken or sent, there is no possibility of any report of the expert being in existence in that regard, which was allegedly suppressed warranting the drawing of a presumption against the prosecution. It might have been a lapse on the part of the investigating agency for not taking the finger prints of the. accused persons but merely because the finger print expert had.

taken some prints -from the glasses would not justify in holding that there existed a comparative finger print expert report which was allegedly suppressed or withheld by the prosecution. Learned counsel then drew our attention to the fact that blood stains were found on a number ofplaces in the house ofthe deceased which suggested that occurrence had not taken place outside the house as alleged by the prosecution and that as the deceased was indulging in gambling there was a probability of some other people having committed the offence. In this regard our attention was drawn to an advertisement (Exh. P31) which, according to the defence, probabilised that the deceased was indulging in Salta betting for riots by ante-social elements, with reference to riots of Ayodhya. He is stated to be living in the area where people belonging to muslim community lived.

His indulgence in satta relating to riots with respect to Ayodhya is suspected to have infuriated the muslim community who might have committed the crime in his house and the prosecution wrongly involved the appellants in the crime merely on suspicion allegedly on account of the dispute existing with respect to the love affair between Montu and Namrata and some complaint earlier filed against the accused. Such a plea cannot be accepted because the advertisement and the public notice (Ex. P. 31) has not been duly proved. There is no evidence on the record to show that the deceased had ever indulged in satta business. PWl in his statement has admitted that a news was published in the newspaper that deceased used to bet as to whether and when the riot incident would break and in turn notice was published allegedly on his behalf that such allegations were false and if anyone proved the same, he would be paid Rs. I0 lakhs.

All such evidence referred to by the defence with respect to the alleged indulgence of the deceased in betting is based upon hearsay and not legally admissible in evidence. Therefore, no inference on that basis can be drawn against the prosecution. Otherwise also both the trial court and the High Court have found cogent explanation and reasons for the presence of the blood at various places in the house of the deceased. In the absence of any evidence to the contrary there is no occasion for this Court to interfere with the finding of fact arrived at on proper appreciation of evidence. After going through the whole of the evidence, the other record produced in the case and the judgments of the trial court and the High Court we find no reason to interfere in the concurrer. t findings of fact arrived at against the accused holding them guilty for which they have been convicted and sentenced. There is no merit in this appeal which is accordingly dismissed. T. N. A. Appeal dismissed.