Dr.ARIJIT PASAYAT,J.
Challenge in this appeal is to the judgment of a Division Bench of the
Rajasthan High Court, Jaipur Bench holding the appellant guilty of offence
punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860
( in short 'IPC'). Eight persons faced trial for allegedly committing murder of one
Gyan Chand (hereinafter referred to as the 'deceased') on 11.11.1993 which
happened to be on the election day for the one Assembly election constituency. One
of the accused persons was acquitted by the trial court and seven persons were
convicted in terms of Section 302 read with Sections 149 and 148 of the Indian
Penal Code, 1860 ( in short 'IPC'). They were also convicted of some minor
offences. During the pendency of the appeal before the High Court, one of the
accused-
appellants died. By the impugned judgment three of the appellants before the High
Court were acquitted. Two persons were convicted in terms of Section 302 read
with Section 34 while in case of one accused, the conviction was altered to Sections
324 and 341 IPC. He was sentenced to undergo imprisonment for the period of
custody already undergone.
The prosecution version primarily rested on the evidence of three eye-
witnesses. One of them was the mother of the deceased and the other two were the
injured witness. The accused persons pleaded innocence. According to them the
deceased and two purported eye witnesses were causing disturbance on the polling
day and therefore the members of the public were agitated and in the process they
may have been beaten; but because of political rivalry the accused persons were
falsely implicated. The trial court placed reliance on the three eye-witnesses and
recorded conviction and imposed sentence as aforesaid. In appeal,, the stand
basically taken was that there was ante dating of the first information report. The
report was purportedly lodged on 11.11.1993 at about 10.50 a.m. The Elaqa
Magistrate received it on 16.11.1993. The delay has not been explained. Apart from
that the place of incident has been shifted. It was also pointed out that the ante
dating of
the FIR it is evident from the fact that the admitted case of the prosecution is that
the FIR was lodged on 11.11.1993 at 10.50 a.m., but strangely, the inquest report
shows that the inquest was started at 10.30 a.m. The stand of the State before the High Court was that merely because there was delay in despatch of the FIR to the
Elaqa Magistrate that cannot throw any doubt on the credibility of the prosecution
version. There were two injured witnesses even if there was a discrepancy between
the time indicated in the FIR and the inquest, that was a lapse on the part of the
Investigating officer and it cannot be a factor in favour of the accused persons.
The High Court accepted the stand of the State and recored the
conviction as afore noted.
Learned counsel for the appellants submitted that the prosecution
version is so brittle that no credence can be put on it. There was not one but
several factors which show that the prosecution had not come out with clean hands.
The High Court should not have brushed aside the discrepancy in time of the
lodging of the FIR and the conduct of the inquest report. The fact that there was
considerable delay in sending the report to the Elaqa Magistrate and the absence of
blood on alleged spot of incident have great relevance. According to the
prosecution version, the deceased suffered 19 injuries but the blood stains which
were supposedly collected from the spot of occurrence were so small that same
could not be sent for a foresenic examination.
Learned counsel for the respondent-State on the other hand supported
the judgment. It is his stand that even if there was a deficiency in the investigation
that cannot be a factor in favour of the accused.
It is true as observed by the High Court that if the FIR is timely lodged
and investigation is undertaken immediately, in a given case, the delayed receipt of
the report by the Elaqa Magistrate would not be fatal to the prosecution. It would depend upon the facts of each case. There cannot be any generlisation. There is a
purpose behind the enactment of Section 157 of the Code of Criminal Procedure,
1973 ( in short the 'Code'). The statutory requirement that the report has to be sent
forthwith that itself shows that the urgency attached to the sending of the report.
In a given case it is open to the prosecution to indicate reasons for the delayed
despatch or delayed receipt. This has to be established by evidence. Apart from
that, the unexplained discrepancy in the timings as recorded in the inquest report
and the FIR has to be kept in view. It is prosecution version that the FIR was
lodged at 10.50 a.m. If was so it was required to be explained by investigating
officer by plausible evidence on record, as to
how the inquest was undertaken at 10.30 a.m. at a point of time when the FIR was
not not in existence. The High Court has lightly brushed aside the plea of the
appellants that it may be the lapse on the part of the investigating officer. It is true
that a faulty investigation cannot be a determinative factor and would not be
sufficient to throw out a credible prosecution version. But in the instant case there
is no explanation offered even to explain the discrepancies cummulative effect of
the factors highlighted above would show that the prosecution has miserably failed
to establish the accusations. The appeal succeeds. The bail bonds executed to give
effect to the order of bail dated 12.7.2004 shall stand discharged.
NAND KISHORE @ NANDA ... Appellant(s)
Versus
STATE OF RAJASTHAN ... Respondent(s)
deserves to be succeed which we direct.
STATE OF RAJASTHAN ... Appellant(s)
Versus
PHOOL CHAND AND ORS. ... Respondent(s)
deserves to be dismissed which we direct.
STATE OF RAJASTHAN ... Appellant(s)
Versus
MOTI LAL AND ORS. ... Respondent(s)
deserves to be dismissed which we direct.