SC: Delay in FIR registration cannot absolve accused of crime

CASE NO.:
Appeal (crl.) 1107 of 2007

PETITIONER:
Subhash

RESPONDENT:
State of Haryana

DATE OF JUDGMENT: 21/08/2007

BENCH:
S.H. Kapadia & B. Sudershan Reddy

JUDGMENT:
J U D G M E N T

CRIMINAL APPEAL NO. 1107 OF 2007
(Arising out of SLP(Crl.) No. 3992 of 2006)


B.SUDERSHAN REDDY,J.


Leave granted.
2. This appeal by special leave is directed against the
judgment of the Punjab & Haryana High Court confirming
the conviction of the appellant under Section 392 read with
Section 397 IPC and the sentence of rigorous imprisonment
for a period of 7 years and under section 302 read with
Section 34 IPC, imprisonment for life and a fine of Rs.
10,000/-, in default of payment of fine to undergo further
two years rigorous imprisonment. Both the sentences were
directed to run concurrently. The appellant was charged with
the offences for having robbed tractor and caused the death
of Raghbir Singh-deceased.

3. The prosecution story, briefly stated, is that on
9.10.1991 Raghbir Singh(deceased) along with Mane Ram
(PW-8) after collecting 'Barma' (an instrument for drawing
out water) from Nand Lal (PW-5) resident of village Kailana
left for their village- Mandi at about 12 noon on a Swaraj
make tractor. On the way when they reached at village
Pugthala they purchased half bottle of liquor from a liquor
vend. Raghbir Singh (deceased) purchased a nip of liquor
separately and carried it with him. Subhash (appellant-
accused) along with son of Basu Sardar and Jai Kumar met
Raghbir Sing (deceased) and Mane Rame (PW -8) near the
village Chamrara. Son of Basu Sardar took the nip of liquor
from Raghbir Singh (deceased) and consumed the same.
Thereafter all accused persons went to the house of son of
Basu Sardar and again consumed illicit liquor. After
consuming illicit liquor they came back at the place where
they had met Mane Ram (PW-8) and Raghbir Singh
(deceased). An altercation took place among son of Basu
Sardar, Subash (appellant-accused) and Jai Kumar wherein
the son of Basu Sardar inflicted injury upon the head of
Subhash (appellant-accused) and fled away. Subhash
(appellant-accused) was brought to the village Pugthala in
order to get his wound dressed up from a doctor on the
tractor of Amar Singh being driven by Joginer Singh
(accused). Thereafter Joginder (accused) took the tractor
towards village Bajana on the bank of canal. When they
reached near the bridge of canal in the village Kasandi
Joginder accused stopped the tractor on which the accused
persons started robbing of money from the pocket of
Raghbir Singh (deceased). It was about 8.00 P.M. Enraged
by the intervention of Mane Ram (PW-8) all the accused
persons caught hold of Mane Ram and pressed his neck and
threw him into the canal. Thereafter accused persons
caught hold of Raghbir Singh (deceased) by his legs and also
threw him into the same canal. Raghbir Singh (deceased)
tried to catch hold of the grass grown on the bank of the
canal. Jai Kumar (accused) and Joginder Singh (accused)
gave leg blows on the face of Raghbir Singh and again
thrown into the water and he did not come out of the canal.
Mane Ram (PW-8) knew swimming and came out of the
canal after having covered a distance of three acres and
narrated the incident to Jai Singh a resident of village
Kasandi. Thereafter, Mane Ram (PW-8) along with Jai
Singh searched for Raghbir Singh (deceased) and the tractor
belonging to Amar Singh (PW- 6) but they could not find
them. Then Mane Ram (PW-8) and Jai Singh went to village
Mandi. It was about mid-night. They narrated the
occurrence to father of Raghbir Singh (deceased). They
went to the city police station, Gohana. Police party along
with Mane Ram (PW-8) and Jai Singh reached at the place of
occurrence at about 10.00 A.M on 10.10.1991 and recorded
the statement of Mane Ram (PW-8). Based on the
statement of Mane Ram (PW-8) the Police Station Gohana
issued first information report and registered a P.S. Case
No. 259 on 10.10.1991 under Section 392 read with
Section 397 and 302 read with Section 34 IPC against the
appellant.

4. After completion of the investigation, the police filed
charge sheet under Section 392 read with 397 IPC and
under Section 302 read with 34 IPC against all the accused
including the appellant. The prosecution in all examined 11
witnesses (PW-1 to PW-11) and got marked various
documents in evidence. The statement of the accused
appellant under Section 313 Cr.P.C. was recorded in which
he took the stand that he was innocent and falsely
implicated of the charge leveled against him

5. The learned Sessions Judge upon appreciation of
evidence available on record found the appellant guilty of
the offence punishable under Section 392 read with 397 and
302 read with 34 IPC and the same was affirmed by the
High Court.

6. Hence this appeal by special leave.

7. We have heard Shri D.P. Singh, learned counsel
appearing on behalf of the appellant-accused and Shri
Sandeep Sharma, learned counsel appearing for the State.

8. In order to consider as to whether the prosecution
established the charge against the appellant for the offence
punishable under Section 392 read with 397 and 302 read
with 34 IPC beyond reasonable doubt it is just and
necessary to appreciate the evidence available on record.

9. In the facts and circumstances of the case, it is not
necessary to consider in detail the statements of all the
prosecution witnesses except PW-8. In our view, the
prosecution case entirely rests on the testimony of Mane
Ram ( PW-8) who is an independent and impartial witness.
He deposed that the accused persons threw him and Raghbir
Singh (deceased) into the canal after robbing money and the
tractor. The relevant portion of his testimony is as under:

"The accused started robbing of money from
the pocket of Raghbir (deceased). On my
intervention, all the accused caught hold of me
and pressed by neck and threw me in canal. It
was about 8 P.M. After throwing me in the
canal, the accused caught hold of Raghbir
deceased by the legs and also threw him in the
canal. Raghbir deceased tried to catch hold of
the grass grown on the bank of the canal.
Thereafter, accused Joginder and Jai kumar
gave leg blows on the face of Raghbir deceased.
Thereafter Raghbir was again thrown in the
water and did not come out whereas I kept on
swimming with the flow of water and came out
of the canal after having covered a distance of
about three acres. After having out of the
water I went to V. Kasandi. I had not seen the
tractor on the bank of the canal."

10. The learned counsel for the appellant urged before us
that the prosecution fabricated the evidence to falsely
implicate the appellant. The learned counsel for the
appellant further contended that the presence of PW-8 at
the scene of occurrence is highly doubtful. This theory
which is now sought to be propounded is contrary to the
very defence set up by the appellant in the sessions case as
is evident from the cross examination of PW-8. It was
suggested to PW-8 that he along with Raghbir (deceased) in
a drunken condition was present at the Kasandi bridge
(scene of occurrence) and they were unable to control
themselves and Raghbir laid on the bank of the canal and
accidentally fell into the water and drowned. This suggestion
made to PW-8 that PW-8 along with Raghbir Singh
(deceased) was very much present at the scene of
occurrence completely negatives the submission now made
by the appellant's counsel. There is nothing on record to
doubt the presence of PW-8 at the scene of occurrence.
Nothing has been suggested to PW-8 as to why he should
have given false evidence against the appellant.

11. We also do not found any merit in the contention of the
learned counsel for the appellant that the no specific overt
act has such been attributed to the appellant and, therefore,
he is entitled to acquittal of the offence alleged against him.
PW-8, in clear and categorical terms in his evidence stated
that Joginder Singh all of a sudden stopped the tractor when
it had reached at the spot in between two canals near the
bridge of canal in village Kasandi. That all the accused
started robbing of money from the pocket of Raghbir
(deceased) and when he intervened all the accused caught
hold of him and pressed his neck and he was thrown into the
canal. That after throwing PW-8 into the canal all the
accused caught hold of Raghbir (deceased) by his legs and
threw him into the canal. Raghbir (deceased) tried to catch
hold of the grass grown on the bank of the canal but the
accused gave blows on the face of Raghbir (deceased) and
was again thrown into the water. Raghbir (deceased) did not
come out from the water.

12. The evidence and material available on record further
reveal circumstances to prove the guilt of the appellant: (1)
The first circumstance is the recovery of the dead body of
Raghbir Singh (deceased) from the place of occurrence. (2)
The sub-Inspector Man Singh (PW-11) recovered the
Tractor No. HR-06-8501 from the possession of the accused
persons which was the same tractor robbed by the accused.
(3) The third circumstance is recovery of 'Barma' by sub-
Inspector Man Singh (PW-11) from the possession of
Joginder Singh (co-accused) in pursuance of his disclose
statement.


13. The learned counsel vehemently contended that there
is no proper explanation forthcoming from the prosecution
for the delay in lodging the first information report and the
same casts a serious doubt on the case set up by the
prosecution against the appellant. We are not impressed by
the submission as the evidence available on record reveals
the sequence of events leading to filing of first information
report. The distance between the Kasandi bridge and Mandi
is about 10-12 kms. It is in the evidence of PW-8 that after
his coming out of the canal he went to village Kasandi and
met Jai Singh and narrated the whole story to him;
thereafter along with Jai Singh he returned to the scene of
occurrence and searched for Raghbir (deceased) and the
tractor but could not find them. Thereafter along with Jai
Singh he went to Mandi on his tractor and narrated the story
to the father of the deceased about the occurrence who
reported the matter to the Sarpanch of the village.
Thereafter he along with Jai Singh went to police post Israna
who refused to lodge the report but informed the Gohana
police. It is true that the distance between the Kasandi
bridge and the police station Gohana is 5 kms. but PW-8
and his evidence had narrated the sequence of events
which reveals the reasons for the delay, if any, in lodging
the first information report at police station Gohana. There is
nothing unnatural on the part of PW-8 in his first going to
Kasandi village nearby to the scene of occurrence and
informing Jai Singh about the incident and thereafter
returning to Kasandi bridge along with Jai Singh. Having
found the deceased-Raghbir Singh and the tractor were
missing he along with Jai Singh went to Mandi village to
inform the father of the deceased. One does not expect Pw-8
to straight away first go to the nearest police station and
lodge the first information report even without informing the
near relatives of the deceased.


14. Be that as it may, it is not the case of the appellant
that after occurrence of the incident some deliberations took
place in order to falsely implicate the appellant in the case.
No suggestion of any enmity between the appellant and PW-
8 has been made. There is no reason to disbelieve the
sequence of events narrated by PW-8. In such view of the
matter mere delay in lodging the first information report, in
the facts and circumstances of the case cannot be held to be
fatal to the prosecution case.

15. For all the aforesaid reasons we hold that the
prosecution has been able to establish the guilt of the
appellant beyond all reasonable doubt for conviction under
Section 392 read with 397 IPC for having robbed money and
tractor. The sentence of rigorous imprisonment for a period
of 7 years for each of the offence under Section 392 read
with 397 IPC is accordingly upheld.

16. The question that falls for our consideration is whether
the facts and circumstances and the evidence available on
record justify the conviction of the appellant under Section
302 read with 34 IPC for having caused death of Raghbir
(deceased)? The evidence available on record does not
suggest that there has been any intention of causing the
death of Raghbir (deceased).The case falls under Part II of
Section 304 IPC. The appellant committed the offence of
culpable homicide not amounting to murder. The appellant
is accordingly convicted under Part II of Section 304 IPC and
sentenced to undergo rigorous imprisonment for 7 years.
The sentences to run concurrently.


17. It is brought to our notice that the appellant has
already served the sentence of 7= years rigorous
imprisonment. Sentence already undergone is sufficient to
meet the ends of justice. He is accordingly directed to be
released forthwith, unless required in connection with any
other case.
18. The appeal is accordingly allowed in part.