---1--- HIGH COURT OF MADHYA PRADESH BENCH : INDORE (Division Bench: P.K. Jaiswal & Mrs S.R. Waghmare, JJ.) Criminal Appeal No.945/2001 Udalsingh @ Govindsingh S/o Indersingh Raju @ Rajendrasingh S/o Narainsingh Mohansingh S/o Indersingh Sengar V/s State of Madhya Pradesh ***************************************************************************** Shri S.K. Vyas, Senior Advocate with Shri L.S. Chandiramani, Advocate for the appellants. Shri Deepak Rawal, Government Advocate for the respondent/State. ***************************************************************************** JUDGMENT (14.12.2011) Per P.K. Jaiswal, J. In the instant case, eight accused persons namely Udalsingh @ Govindsingh, Gabbu @ Virendrasingh, Raju @Rajendrasingh, Mohansingh, Laxmansingh @ Munna, Devisingh @ Lallu, Indersingh and Dinesh @ Deenu were charged and prosecuted for commission of the offences punishable under Sections 148, 302 or 302/149 & 307/149 of IPC and under Sections 25 & 27 of the Arms Act, 1959. During pendency of trial accused No.8 Dinesh @ Deenu died and, therefore, his name was deleted. After trial, giving benefit of doubt, Laxmansingh @ Munna and Devisingh @ Lallu, accused Nos. 5 & 6 respectively were acquitted by the First Additional Sessions Judge, Indore in Sessions Trial No.475/97, vide judgment & order dated 7.8.2001. 2. The remaining five convicted accused persons have preferred this appeal against the judgment & order of their conviction, who are Udalsingh @ Govindsingh, Gabbu @ Virendrasingh, Raju @ Rajendrasingh, Mohansingh and ---2--- Indersingh. During pendency of the appeal, appellant No.2 Gabbu @ Virendrasingh and appellant No.5 Indersingh died. Thus, the appeal in respect of these two accused persons stood abated. Now, in this appeal it is prayed before us to consider in the peculiar facts & circumstances of the case, whether the three surviving convicted appellants i.e., Udalsingh @ Govindsingh, Raju @ Rajendrasingh and Mohansingh deserve to be convicted and sentenced under Sections 148, 302/149 and 307/149 of IPC, who have been awarded sentence for one year RI each under Section 148 and to undergo life imprisonment each with fine of Rs.1,000/- under Section 302/149 of IPC; in default of fine to further undergo R.I. for six months and three years R.I. each with fine of Rs.500/- under Section 307/149 of IPC; in default of fine to undergo further R.I. for three months. All the sentences were to run concurrently. 3. The prosecution case in a nutshell is as under:- It is said, that on 12.8.97 at about 11.30 in the morning, Rajesh Joshi and Manoj Dhawan (PW1) were sitting in the house of Rajesh Joshi. At that time, an un-known person came to Rajesh Joshi and he was informed that he was called to the Municipal Corporation, Zonal Office at Subhash Nagar, Indore. Rajesh Joshi and Manoj Dhawan went to the Zonal Office on the scooter bearing registration No. MKI-4514. On reaching the Office they could not find anybody there. The distance between the house of Rajesh Joshi and Zonal Office is of about three minutes and while they were returning on the scooter, eight accused persons, who were already hiding there, came in front and stopped Rajesh Joshi, who was driving the scooter. They hurled abuses at Rajesh Joshi dragged him from the scooter and said that he was becoming a leader day by day and had demolished their shops and he would not permit to do and they ---3--- would kill him and caused injuries to both of them. The allegation against them is that they formed an unlawful assembly with the common object of committing murder of Rajesh Joshi and attempt to murder of Manoj Dhawan (PW1) and in furtherance of the said common object they caused injuries to Rajesh Joshi by various weapons, resulting in his death and also caused injuries to Manoj Dhawan (PW1). 4. It is alleged that Mohansingh, Udalsingh, Indersingh and Virendrasingh were having sword, Devisingh & Laxmansingh @ Munna were having Revolvers and Dinesh and Raju @ Rajendrasingh were having knives. The accused persons inflicted injuries to Rajesh Joshi. Rajesh Joshi tried to save his life and, therefore, he ran away towards house of one Mishraji, but near a tree he fell down. In order to save his life, when Manoj Dhawan (PW1) reached near Rajesh Joshi, accused Mohansingh and Virendrasingh, who were armed with sword have caused sword injuries to him. After causing injuries the accused persons left the spot. At that time Nilesh Jaiswal (PW2), Sailesh Jaiswal and Dharmendra Tiwari (PW3) were also present and they witnessed the incident. Majoj Dhawan (PW1) received injury on his head and, therefore, he set down on the ground. After sometime he saw that Sanjay Joshi, brother of Rajesh Joshi came with auto-rickshaw and took him and Rajesh Joshi to M.Y. Hospital, Indore. At that time Rajesh Joshi was seriously injured. In M.Y. Hospital, before any medical help could be provided to him, Rajesh Joshi was declared dead by the doctor attending him. 5. On the basis of telephonic intimation by Subhash, Telephone Operator of M.Y. Hospital, Indore, Rojnamcha Sanha No.260 (Ex.P/39) was recorded by Hakimsingh Yadav (PW4), Station House Officer posted at Police Station Pardeshipura, ---4--- Indore. On the basis of said telephonic intimation by Subhash, Telephone Operator of M.Y. Hospital, Indore murg No.39/97 (Ex. P/24) was registered under Section 174 Cr.P.C. As per this murg incident was occurred at 12.00 to 12.20 noon on 12.8.97 and the intimation was received at 12.45 PM on 12.8.97. 6. It is said that the certified photocopy of murg (Ex.P/24) was given to the accused along with the Challan vide Ex.D/11 in which no Sanha number was mentioned, nor any time was given in the said Ex.D/11. Ex.P/40 is Safina form in which time is mentioned as 12.55 and the Crime No.395/97 was also mentioned. A notice to five persons under Section 175 Cr.P.C. was issued. They are Sanjay (PW8), Ashok, Vijay, Raviram and Vishnu. It is said that at 12.55 PM Investigating Officer knew that Crime No.395/97 has been registered on 12.8.97 itself. 7. It is alleged that some encroachment was made by the accused persons near the old Shiv temple at Subhash Nagar square, Indore. The said encroachment was removed at the instance of Rajesh Joshi and, therefore, the accused persons caused injuries to him. 8. It is said that Manoj Dhawan (PW1) due to his injuries and on hearing about death of his friend fell unconscious. At about 9.00 PM in M.Y. Hospital, Dehati Nalish (Ex. P/2) was recorded, on the basis of which FIR (Ex.P/25) was registered vide Crime No.395/97. After investigation, the charge sheet was filed against eight persons in the Court of Judicial Magistrate First Class, Indore, who in turn committed the case to the Court of Sessions for trial. 9. We have accordingly heard Shri S.C. Vyas, learned Senior Counsel for the appellants and Shri Deepak Rawal, learned Government Advocate for the respondent/State and perused the ---5--- record. 10. The back ground of the prosecution story is that at Subhash Nagar square in the town of Indore, there is Shiv temple. In the premises of this temple a hotel was illegally constructed. The accused persons were under impression that deceased Rajesh Joshi was responsible for removal of encroachment and this was the reason as to why an unlawful assembly was formed for committing murder of Rajesh Joshi. Rajesh Joshi was Member of Municipal Corporation, Indore. 11. It is also submitted by the learned Senior Counsel for the appellant that in the Zonal Office Rajesh Joshi has fling with some woman and people who noticed that caused injuries to him. 12. The prosecution mainly relies on the alleged eyewitness namely Manoj Dhawan (PW1), Nilesh Jaiswal (PW2) and Dharmendra Tiwari (PW3). 13. At the out set learned Senior Counsel for the appellants contended that looking to the nature of injuries sustained by the deceased, the Court below committed grave error in finding the appellants guilty for commission of offence under Sections 148, 302/149 and 307/149 of IPC. It is alleged that all the above three eyewitnesses are highly interested. They were close associates of the deceased. It is submitted that Manoj Dhawan (PW1) was on very intimate terms with the deceased for the last 5-7 years and to support the same he supported the prosecution. Learned Senior Counsel drew our attention to paragraph 13 of his statement in which he has deposed that he was having very intimate terms with the deceased. In the same paragraph this witness has also admitted that Nilesh Jaiswal (PW2) was his closed associate. In paragraph 16 he has ---6--- admitted that in July'97 deceased Rajesh Joshi was made Chairman of Nagrik Khadya Aapurti Samiti. He has also admitted that PW2 had a Fair Price shop and on the appointment of the deceased as Chairman, Nagrik Khadya Aapurti Samiti was welcomed by PW2 in newspaper 'Agnibaan'. In paragraph 5, PW1 also admitted that he had come to the house of Rajesh Joshi on the date of incident just for no reason. 14. Nilesh Jaiswal (PW2) has admitted in paragraph 15 that deceased was a leader and he is worker of BJP. In paragraph 17 he has admitted that previously the deceased was Chairman of Mamta Sahakari Upbhokta Bhandar and prior to his death he was the Chairman of the said Upbhokta Bhandar. In paragraph 47 he has admitted that after the incident, Sanjay Joshi (PW8), brother of the deceased came to him, but he did not disclose him that accused persons have murdered his brother. 15. Dharmendra Tiwari (PW3) has admitted that he has been prosecuted by the police Pardeshipura in the accompanying case. In paragraph 10 he has admitted that neither he nor Sanjay Joshi tried to bandage the injuries of Rajesh Joshi and Manoj Dhawan. In paragraph 21 he further admitted that he is witness in earlier Marpit case also. With the aforesaid, learned Senior Counsel for the appellants has contended that all these three witnesses are highly interested witnesses. 16. He has further submitted that earlier version of the incident has been suppressed by the prosecution and there is delay of 9 hours in lodging the FIR. It is also submitted that the FIR (Ex.P/25) and Dehati Nalish (Ex.P/2) are ante dated and ante timed. It is also submitted that prior to this report another report was lodged, which has been suppressed by the prosecution. His submission is that it is a case of not only anti timing and anti dating, but also of suppressing the earlier version which alone ---7--- could be the FIR. In support of the said contention he drew our attention to the statement of Hakimsingh Yadav (PW24). As per statement of PW24, on 12.9.97 he was posted as Officer-In- Charge of Police Station Pardeshipura, Indore. In paragraph 2 of his statement he has stated that some unknown person gave information about the incident that has taken place at Subhash Nagar square. This information was recorded by him in Rojnamcha Sanha No.260 (Ex.P/39) at 12.10 noon and he left for the spot with mobile force. Ex.P/39 is of his own handwriting. According to him, on the spot, he did not notice any injured person. He left the police force on the spot and went to M.Y. Hospital, Indore. According to him, at M.Y. Hospital constable Jaiaram handed over murg intimation to him, which is Ex.P/24. On receipt of marg intimation he issued summons to the witnesses, which are Ex.P/40 at 12.55 hours and, thereafter, prepared inquest of the dead body, which is Ex.P/21. Thereafter, vide requisition Ex.P/37 the dead body was sent for postmortem examination with constable Dharmendrasingh Jadon (PW22) and then he obtained report from the doctor about the condition of injured Manoj Dhawan (PW1) as to whether he was in a position to give statement or not? This document is Ex.P/34. Thereafter, on that very day he seized trouser of Manoj Dhawan vide Ex.P/1. On that very day the dead body of Rajesh Joshi was handed over to his brother Sanjay Joshi (PW8) and receipt Ex.P/12 was obtained. The RSO (Surgery) subsequently gave a report that injured Manoj was in a position to give statement. This report is Ex.P/35. The Dehati Nalish (Ex.P/2) was brought by Head Constable Pratapsingh (PW13) to police station for registration of a case. On this Dehati Nalish, FIR (Ex.P/25) was recorded and Crime No.395/97 was registered and, thereafter, FIR Ex. P/25 and original Dehati Nalish (Ex.P/2) was brought to him in M.Y. Hospital, Indore. ---8--- 17. According to PW24, he has sealed the place of occurrence in the night of 12.8.97 at 23.55 hours and prepared a site plan (Ex.P/6) next day i.e., 13.8.97. He also seized article lying on the spot. He also seized blood stained and plain earth from the spot through Ex.P/3. He also recorded police statements of the witnesses. He recorded his return at 6 O'clock in the morning in the police station which is recorded in Rojnamcha Sanha No.1157 (Ex.P/43). According to him, he sent a copy of FIR to the concerning Court, which is recorded at Dispatch No.1857 (Ex.P/38). PW24 in paragraph 51 of his statement, has produced a letter (Ex.P/20), which was prepared by Sub Inspector Sengar was signed by him. Ex.D/20 is written on 12.8.97 at 8 AM and this letter mentions that case is registered on the report of Manoj Dhawan (PW1), but this witness could not explain as to how Sub Inspector recorded this. A suggestion was put to him that on the report of Manoj Dhawan (PW1) a case has been registered before 8 PM on 12.8.97 and that report has been suppressed and substituted by another report . Rojnamcha Sanha No.1064 (Ex.D/7) was recorded at 13.45 hours, which reads as under :- “e`rd jkts'k tks'kh o eukst ?kou ds lkFk fjiksVZ fdlh Hkh O;fDr }kjk iqu% ugha dh xbZA” 18. It is submitted that a report was already lodged and it has not been reported. The earlier report has already been lodged before 13.45 hours, which was suppressed by the prosecution. Sheetal Singh, Constable posted at Police Station Pardeshipura has been examined before the trial Court as PW23. According to him, on that very day, T.I. has given a copy of FIR. He in his examination-in-chief deposed that the report was given by him in the Court on 13.8.97 (Ex.P/38 is the entry in dak-book). According to him, he submitted the report at 12.30 hours on 13.8.97. This witness in his cross examination has admitted that the copy of FIR was given to him on 12.8.97 to be given in the ---9--- Court of Magistrate, but the same could not be handed over on 12.8.97, because the Magistrate lives in Dewas and not at Indore. The report was given to him at 4.30 PM on 12.8.97. It is submitted by the learned Senior Counsel for the appellants that the report in question brought to the Magistrate was in existence on 12.8.97 at 4.30 PM and the story that Dehati Nalish was recorded at 9.00 PM i.e., 21.00 hours and the FIR at 9.15 PM is wrong and the earlier report has been suppressed. 19. Learned Senior Counsel for the appellants drew another circumstance before us to prove that report was recorded earlier and is suppressed. It is submitted that summons issued to the witnesses for preparation of inquest mention crime number (Ex.P/40). He also drew our attention to Safina form (Ex.P/40) and submitted that it is very well known that crime number is mentioned after the FIR is recorded. In this case the prosecution story is that the FIR was recorded at 9.15 PM. On the basis of Dehati Nalish, which was recorded at 21.00 hours. This would mean that if this was a fact, there would have been no question of crime number being given in the summons i.e., Ex.P/40. He submitted that when this fact was brought to the notice of the Investigating Officer (PW24), the Investigating Officer in paragraph 37 of his cross examination has given an explanation that by mistake the Reader has mentioned the crime number on the summons. The Reader (Pratapsingh) in question, has been examined as PW13. In the examination of PW13 not a single question has been put by the prosecution to explain as to how mistake has been committed so that accused persons could not have an opportunity of cross examining him on this aspect of the matter. 20. It is further contended that Rajesh Joshi and Manoj Dhawan were brought to the M.Y. Hospital, Indore by auto- ---10--- rickshaw driver Dharmendra Chaukse (DW5). There is entry in M.Y. Hospital that he was brought at 12.30 hours, which is recorded by Telephone Operator Subhash. It is submitted that the prosecution story developed later that they were brought to the hospital by Sanjay Joshi (PW8), brother of Rajesh Joshi is false. This has been introduced later with a view to make Sanjay Joshi (PW8) a witness. The Telephone Operator Subhash (DW1) had sent a message to the concerned police station that Rajesh Joshi and Manoj Dhawan had been brought to the hospital by Chaukse and this report has been suppressed by the Investigating Officer. It is submitted that there is material contradiction in the statement of Manoj Dhawan (PW1). PW1 in paragraph 41 of his statement has deposed that the report was not recorded by the Town Inspector in his own handwriting, but was recorded by a person accompanying him on dictation. Manoj Dhawan in paragraph 20 of his statement has admitted that he does not know about the age of Udalsingh @ Govindsingh, Munna and Mohansingh at the time of incident. 21. It is submitted by the learned Senior Counsel for the appellants that the incident took place at 12 O'clock on 12.8.97 in a busy locality of Indore one can reasonably expect that the report could have been lodged in no time, because Police Station Pardeshipura is hardly ½ to 1 Km from the place of occurrence. It is impossible to believe that Dehati Nalish of this incident could be lodged belatedly i.e., after a lapse of 9 hours. In fact, one would expect that within a few minutes FIR could have been lodged at police station and intimation report could have reached the concerning Magistrate on that very day. As per statement of Sheetal Singh (PW23) the report was given to him at 4.30 PM on 12.8.97 for giving the same to the Court of Judicial Magistrate and by the time he reached the Court the Magistrate had left the Court is not correct, because the Court ---11--- closes at 5.30 PM and even if we accept that the Magistrate had gone to Dewas there would be persons in the office to receive it. It is not the case of the prosecution that the prosecution tried to give intimation report to the Office and they refused to take it. Even if the Magistrate had left for Dewas, the constable ought to have gone to Dewas to handover the report to him. 22. A.L. Azad, the then Sub Inspector Police Station Pardeshipura, Indore has been examined as PW12. According to him, at 12.45 noon Subhash, Telephone Operator M.Y. Hospital, Indore informed that Sanjay has brought a dead body of his brother Rajesh, who had received injuries in a quarrel. On this report, murg no.39/97 was registered, which is proved on record as Ex.P/24. According to PW12, the intimation about murg was sent to SHO through Constable Jairam. In paragraph 4 this witness has admitted that Ex. P/24 was recorded in Rojnamcha of Police Station Pardeshipura. He also admitted that in Ex.P/24 there is no mention as to which Sanha number in the Rojnamcha, murg intimation report is recorded. In paragraph 5, it has come on record that the contents of intimation report Ex.P/24 vary from its copy Ex.D/11, supplied to the accused. PW12 in paragraph 6 of his statement has deposed that the intimation on telephone does not constitute cognizable offence. When attention of PW12 was attracted to the fact that there is a mention that death is caused on account of injuries then how it could not constitute a cognizable offence. PW12 has admitted that he has sent this report to the Town Inspector for investigation. This witness in paragraph 9 of his statement admitted that report regarding Crime No.395/97 was recorded at Sanha No.1159 and is dated 13.8.97 and not dated 12.8.97. It is to be noted that in Sanha No.1159 the upper line is written by pen and serial number is also written by pen; however the rest of the entries are carbon copy. ---12--- 23. It is well settled that once the Court reaches a conclusion that the report is ante timed then the entire prosecution case would collapse. The Apex Court in the case of Marudanal Augusti v/s State of Kerala (AIR 1980 SC 638) has observed, thus:- “The High Court seems to have overlooked the fact that the entire fabric of prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of the witnesses could be added without there being anything to check the authenticity of their evidence.” 24. It is also settled that once the Court reaches this conclusion that the earlier information has been suppressed, the whole case of the prosecution would collapse. The Apex Court in the case of Sevi & another v/s State of Tamil Nadu & another (AIR 1981 SC 1230) observed the following at page 1232, which reads as under:- “In the circumstances we think that there is a great force in the submission of the learned counsel for the accused that the original FIR has been suppressed and, in its place some other document has been substituted. If that is so, the entire prosecution case becomes suspect. All the eyewitnesses are partisan witnesses and notwithstanding the fact that four of them were injured we are unable to accept their evidence in the peculiar circumstances of the case. Where the entire evidence is of a partisan character impartial investigation can lend assurance to the Court to enable it to accept such partisan evidence. But where the investigation itself is found to be tainted the task of the Court to shift the evidence becomes very difficult indeed.” 25. It is also pointed out by the learned Senior Counsel for the appellants that in order to decide as to whether a report is inordinately delayed automatic calculation of timing would not apply as a rule of thumb. In some cases even few hours' delay may be inordinate, whereas in other cases even delay of few days will not be inordinate delay. What is material in this case is is that the incident has taken place at day time about 11.30 to ---13--- 12.00 in the noon. The incident has taken place in the heart of the town. The incident has taken place on the main road. The deceased was a well-known person, as he was Member of Municipal Corporation, Indore of that area, it is, therefore, expected that the report ought to have been lodged within minutes, specially when the Police Station Pardeshipura is only one Km away from the place of occurrence. 26. The Apex Court in the case of Thulia Kali v/s The State of Tamilnadu (AIR 1973 SC 501) observed the following in paragraph 12, which reads as under:- “It is in the evidence of Valanjiaraju that the house of Muthuswami is at a distance of three furlongs from the village of Valanjiaraju. Police station Valavanthi is also at a distance of three furlongs from the house ofMuthuswami. Assuming that Muthuswami PW was not found at his house till 10.30 p.m. on March 12, 1970 by Valanjiaraju,it is, not clear as to why no report was lodged by Valanjiaraju at the police station. It is, in our opinion, most difficult to believe that even though the accused had been seen at 2 p.m. committing the murder of Madhandi deceased and a large number of villagers had been told about it soon thereafter, no report about the occurrence could be lodged till the following day. The police station was less than