Remesh @ Remeshan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 13TH DAY OF NOVEMBER 2017/22ND KARTHIKA, 1939 CRL.A.No. 198 of 2011 (D) -------------------------- AGAINST THE ORDER/JUDGMENT IN SC 166/2007 of ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM DATED 29-11-2010 APPELLANT(S)/ACCUSED: -------------------- REMESH @ REMESHAN, AGED 25 YEARS, S/O.RAMACHANDRAN, THOTTAYIPILLY VEEDU, KAIDARAM KARA, KOTTUVALLY. BY ADVS.SRI.B.RAMAN PILLAI SRI.ANIL K.MOHAMMED SRI.R.ANIL SRI.T.ANIL KUMAR SRI.MANU TOM SRI.SUJESH MENON V.B. SRI.SHYAM ARAVIND RESPONDENT(S)/COMPLAINANT: -------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. R1 BY SPL.PUBLIC PROSECUTOR ADV. SMT.AMBIKA DEVI S THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/9/2017, THE COURT ON 13/11/2017 DELIVERED THE FOLLOWING: ## **A.M. SHAFFIQUE & P.SOMARAJAN, JJ.** ========================= Criminal Appeal No. 198 of 2011 ==================== Dated this, the 13[th] day of November, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ The accused in S.C.No.166/2007 on the file of the Additional Sessions Judge (Adhoc-I), Ernakulam and convicted for the offence Under Sections 302, 449 and 326 of Indian Penal Code (for short 'IPC') is the appellant herein. He is sentenced to undergo imprisonment for life for offence under Section 302 IPC and to pay a fine of `1,00,000/- and in default, to undergo rigorous imprisonment for five years. For the offence under Sections 449 and 326 IPC, he is sentenced to undergo Rigorous Imprisonment (RI) for five years each and also to pay a fine of `5,000/- and `15,000/- respectively and in default of which to undergo RI for one year each. 2. On 06/09/2006, Ms.Laya, daughter of PW1, while sleeping in her house was stabbed on her chest, neck, abdomen and all over her body with a knife. She died instantaneously. When her younger brother, Lijil sleeping in the same room woke up and tried Crl.Appeal No.198/11 -:2:- to resist, he was also stabbed, inflicting injury on his hands and legs and he suffered grievous injuries. 3. The case set up by the prosecution was that, on the fateful day, i.e., on 06/09/2006, at about 4 a.m, the appellant trespassed into the residential house of PW1, committed murder of Laya and inflicted grievous injuries on Lijil. He had done the criminal acts due to the animosity and frustration developed against Laya, since she rejected his desire to marry her. 4. Crime No.569/2006 came to be registered by PW18 at 8 a.m. on 6/9/2006 for offences punishable u/s 449, 302 and 324 of the IPC, based on statement given by PW1. The investigation was conducted by PW20. He filed Ext.P10 report for altering the sections in the FIR and also to change the name of informant as Subalayan (PW1). Ext.P20 report was furnished giving the name and full address of the accused. After completing the investigation, he filed the final report before the Judicial First Class Magistrate Court, North Paravur. It was taken on file as CP No.99/2006 and committed to Court of Sessions, Ernakulam. The case SC No.166/2007 was made over to the Additional Sessions Judge (Adhoc-I), Ernakulam. Prosecution examined 20 witnesses Crl.Appeal No.198/11 -:3:- as PWs 1 to 20 and Exts.P1 to P21 were marked. MOs 1 to 10 were the material objects produced before Court. 5. The Court below after appreciating the evidence found that the prosecution has successfully established the guilt of the accused. Before proceeding further, it will be useful to give a brief description of the evidence relied upon by the prosecution. 6. PW1 is the father of deceased who had given Ext.P1, First Information statement before the police. He deposed that, on 6/9/2006, by about 4 a.m in the morning, he heard the cry of his son. His wife reached the room after lighting the lamp. He saw the accused having a tussle with his son. His wife interfered. The accused ran away through the back door pushing down his wife along with the lamp. The lamp went off. He and his wife tried to go behind the accused, but he ran away. When they came back and the lamp was lit, they saw their daughter and son lying on the floor blood soaked. They cried aloud, people in the locality came and the children were taken to Government Hospital, Paravur. Son was taken to Ernakulam General Hospital as his condition was serious. His daughter Laya died in the incident. He further deposed that she studied upto Std.X. She was working in a shop Crl.Appeal No.198/11 -:4:- at Paravur. She got acquainted with the accused. When he became a nuisance, she stopped going for the job. Thereafter, she went for work in a Convent at Ponnurunny and was staying there. He had gone and brought her back home on 4[th] for Onam. His daughter used to tell him that she does not want to marry the accused. On 5[th] morning, his daughter and her friend had gone to a temple. The accused blocked them on the way and demanded that she should marry him. He also threatened that if she does not marry, he will not spare her brother. The motive for committing crime was her refusal to marry the accused. 7. PW2 is the witness to Ext.P2, the inquest report. PW3 is the mother of Laya. She also deposed that, on hearing the cry, she lit the kerosene lamp and went near the children. She saw her son in a struggle with another person. She identified the other person as Ramesh, who had come to their house earlier. She caught hold of him. He pushed her down along with the lamp and ran through the side of kitchen to the east. She and her husband tried to run behind him. He jumped into the paddy field and ran away. She identified the accused as Ramesh. Thereafter, they came back, lit the kerosene lamp and saw her daughter and son Crl.Appeal No.198/11 -:5:- lying in a pool of blood. She also deposed that on the previous night itself, daughter had told her that the accused was creating nuisance by demanding that she should marry him. A month before Onam, he had come to their house and requested that she should be given in marriage to him. They informed him that they do not want such a marriage. She also identified MO1, the knife used by the accused, and MO2 to MO7. 8. PW4 is Lijil, the brother of Laya who also suffered injury on the same day. He deposed that while he was sleeping, he heard a sound. Somebody was standing in the room. He stood up and kicked him. The assailant inflicted an injury on his left leg with a knife. He caught hold of him. Father and mother came and lit the lamp. He saw him. Mother caught hold of the assailant. He pushed down his mother and ran towards east. The lamp went off. He fell down. Father tried to get hold of the assailant. When they came back and lit the lamp, he saw his sister lying dead. They were taken to the hospital. He heard that his sister died due to the injuries suffered by her. He also suffered serious injuries and was taken to Government Hospital. He identified the assailant as the accused. He also identified MO1 knife. He also stated about Crl.Appeal No.198/11 -:6:- the nuisance created by the accused for marrying his sister and he also stated that the motive behind the crime is not permitting him to marry his sister. 9. PW5 is a friend of Laya. She had given evidence stating that both of them had gone to the temple at 7.30 a.m. on the day of Onam. She saw Laya talking to somebody. While coming back, they saw Vinu and Rajeesh who were their neighbours. Laya spoke to them. Vinu called an autorickshaw for them and they came back in the said autorickshaw. Since she did not speak in accordance with the prosecution case, she was declared hostile. Exts.P3, P3(a), P3(b) and P3(c) were marked with reference to her earlier statement. 10. PW6 is Vinod who deposed that he knew Laya. When he and his friend Rajeesh had gone to the temple, they saw Laya and Reshma (PW5) coming back from the temple. When they came back from the temple and reached Mannam, the girls were waiting for them. Laya came and stood by their side. She pointed out to a person and told them that he was trying to disturb them. He called an auto and sent them to their house. They went towards the said person and enquired. He said that his name was Crl.Appeal No.198/11 -:7:- Ramesh and he was having an affair with Laya and recently Laya was trying to avoid him. He wants to marry Laya. At any rate, he would go back only after seeing her today. He went towards Thathappilly in a cycle. The witness also identified him. He further deposed that, on the same day, at about 6.30 when he, Rajeesh, Harshan and Kunjappan were waiting in front of a pipe company near Laya's house, he saw the accused coming in a bicycle, sitting behind. When he asked him where he was going, he said that he was only roaming in the locality. When he asked him of the incident which happened in the morning, the accused said that he had not come for any trouble and they went back in the same cycle. He heard the cry at about 4 am on 6[th] from Laya's house. He went there. Several persons had assembled there. When he looked through the window, he saw Laya lying in a pool of blood and Lijil was lying down. Somebody told that Lijil was stabbed. He and his friend went to call a vehicle. They could not get a vehicle. Somebody else brought a Challenger vehicle and they were taken to hospital. He also went to Paravur Hospital. Doctor said that Laya is no more. Lijil was taken to Government Hospital and he accompanied him to the Government Hospital. Crl.Appeal No.198/11 -:8:- 11. PW7 is a neighbour who had come to the scene of occurrence and saw Laya and her brother lying down. He called the vehicle and they were taken to the hospital. He is an attestor to Ext.P4 scene mahazar. 12. PW8 Baiju is the person who had driven the vehicle in which Laya and her bother were taken to the hospital. 13. PW9 is the Mother Superior of a Convent. She was examined only to prove that Laya's father had come and taken her on 4/9/2006 offering to send her back on 6/9/2006. 14. PW10 has turned hostile. He was cross examined and Ex.P5 was marked. PW11 Dasan is a witness to Ext.P6 mahazar. But he denied having seen the shirt, pant and cycle being taken by the police. PW12 Sudhakaran is an attestor to the seizure mahazar Ext.P7. He identifies MO1 knife, which was used by the assailant. He also identified the accused as a person came along with the police. 15. PW13 is one Mohammed Ali who had given evidence stating that a week before, the accused had come and purchased a knife, which he identifies as MO1. 16. PW14 is the Village Assistant who prepared the site Crl.Appeal No.198/11 -:9:- plan. 17. PW15 is the Civil Surgeon of Taluk Hospital, North Paravur. He deposed that, on 6/9/2006, at about 5.30 a.m., he had examined Lijil. The injuries suffered by him is stated in Ext.P9 certificate. He also deposed that the said injuries could be caused by MO1 knife. He also proves Ext.P10 death intimation in respect of Laya. 18. PW16 is an Orthopaedic Consultant of General Hospital, Kozhikode. He was working at General Hospital on 6/9/2006. He had treated Lijil and he had issued Ext.P11 certificate. He also stated that the injury noted could be caused by MO1 knife. PW17 is Dr.Sanam Basheer, Assistant Surgeon, General Hospital, Ernakulam on 25/9/2006. She has examined Lijil who was in the casualty. His blood group was confirmed as A[+] . Ext.P12 is the certificate. 19. PW18 is the Sub Inspector of Police who recorded Ext.P1, FI Statement given by PW1 and registered Ext.P13, FIR at about 8 a.m. on 6/9/2006. 20. PW19 is the Doctor who conducted postmortem of Laya. The ante mortem injuries noticed are as under:- Crl.Appeal No.198/11 ## -:10:- _“1. Incised wound 2.5x1.2cm obliquely placed on the left side of front of neck, its lower inner pointed end was 5cm below left ear and 6cms outer to midline. The other end was broad and contused. The wound was directed backwards and to the right for a depth 4cm cutting the muscles and carotids artery and terminating on the side of cervical spine producing small superficial cut there._ _2. Incised wound 3.5x1cm obliquely placed on the left side of front of neck 2.5cm below left ear. Its lower inner pointed end was 2cm below angle of mandible and 6cm outer to midline. The wound was directed backwards and to the right for a depth of 4cm cutting the muscles and carotid artery and terminating on the side of cervical spine._ _3. Incised wound 5x2cm obliquely placed on the front of neck. Its inner lower broad end was on the suprasternal fossa. The other end was pointed. The wound entered the right chest cavity. The wound in its course cut the muscles and carotid artery on left side. Pierced the upper lobe of right lung and terminated on the back part of 3[rd] rib producing a small superficial cut there. The wound was directed to the right backwards and downwards for a total depth of 14cm. Right chest cavity contained one litre of blood and right lung was partially collapsed._ _4. Incised wound 4x1x2cm muscle deep on top of left shoulder. Its front end was 5cm outer to root of_ Crl.Appeal No.198/11 -:11:- _neck and 4cm back of collar bone._ _5. Incised wound 2.2x1x1cm obliquely placed on the front of left side of chest. Its lower inner end was 7.5cm outer to midline and 6cm below collar bone._ _6. Multiple muscle deep incised wounds over an area 18x4cm on the front of abdomen 12cm below lower end of sternum. They did not enter abdominal cavity._ _7. Incised wound 7.5x2.5x1cm skin deep, only obliquely placed on the outer side of left thigh 12cm below anterior superior iliac spine._ _8. Incised wound 5x2.5cm obliquely placed on the left side of abdomen in the axillary line. Its upper inner broad end is 4cm below costal margin and 14.5cm outer to midline. The wound entered the abdominal cavity cut the mescentery at multiple sites and terminated by cutting the ribs and costal cartilage on the right side of front of chest. The wound was directed to the right backwards and upperwards for a total depth of 15cm._ _9. Incised wound 3.5x1.5x1.5cm obliquely placed on the back of left forearm 5cm below elbow._ _10. Superficial incised wound 2x5cm on the upper layers of skin obliquely placed on the back of left upper arm 5.5cm above elbow._ _11. Incised wound 6x4cm obliquely placed on the back of left choulder. Its upper outer broad end was 10cm below top of shoulder and 16cm outer to midline. The wound perforated into the left axilla producing an exit wound 4x1cm in side the_ Crl.Appeal No.198/11 ## -:12:- _peoterior fold of axilla._ _12. Superficial incised wound 2.5x7.5cm obliquely placed on the back of left shoulder on the upper layers of skin. 2cm below top of shoulder injuries numbers 5 to 12 showed minimal antemortem features._ _13. Contused abrasion 4x1.5cm on the front of right knee._ _14. Abrasions 5x1cm on the front of right ankle. 15. Abrasions 4x1cm on the top of left foot 4cm in front of ankle._ _16. Superficial incised wound 4.5x0.5cm obliquely placed on the left side of back of chest. Its inner end 6cm below root of neck in the midline.”_ Ext.P14 is the post mortem certificate. Cause of death is due to stab injuries to the neck and chest. He deposed that the injury could be caused by MO1 weapon. 21. PW20 is the investigating officer who had completed the investigation and filed the final report before Court. He proved the arrest memo and all other documents which he had obtained during the course of investigation. 22. There is no dispute about the fact that an incident occurred in the house of PW1, by which his daughter died and his son suffered serious injuries. Crl.Appeal No.198/11 -:13:- 23. The main argument raised by the learned senior counsel for appellant is with reference to the identity of the accused. The FI Statement was given at 8 a.m. on 6/9/2006. It reached the Magistrate only at 9.30 p.m. Nothing has been stated in the FI Statement regarding the identity of the accused, or regarding PW3, lighting the lamp when she heard the children crying. It was pitch dark at 4 a.m. PWs 1, 3 and 4 could not have seen the assailant in that darkness. They could not have identified the assailant at all. The prosecution was trying to improve upon the case by stating that PWs 1, 3 and 4 had seen the accused in the light of the lamp. The lighted lamp is a subsequent story brought up only for the purpose of creating evidence against the appellant. In Ext.P1, PW1 also does not disclose the weapon used by the assailant. Further the recovery of the weapon and other material objects are also not proved. Therefore, it is contended that case set up by the prosecution is not believable. 24. Learned counsel for the appellant placed reliance upon the following judgments in support of his contentions:- (i) _**Ram Kumar Pande v. State of Madhya Pradesh**_ (AIR 1975 SC 1026). Paragraphs 9, 10 and 11 are relevant, which Crl.Appeal No.198/11 -:14:- ## reads as under:- _**“9** . No doubt. an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case._ _**10** . Even Joginder Singh, PW 8, was not an eye witness of the occurrence. He merely proves an alleged dying declaration. He stated that Harbinder Singh (described by his pet name as "Pappi") rushed out of his house by opening its door, and held his hand on his chest with blood flowing down from it. He deposed that, when he asked Pappi what had happened Pappi had stated that Suresh and Pandey had injured him. It is clear from the F.I.R. that Joginder Singh had met Uttam Singh before the F.I.R. was made. Uttam Singh did not mention there that any dying declaration indicating that the appellant had also injured Harbinder Singh, was made by Harbinder Singh. The omission to mention any injury inflicted on Harbinder Singh by_ Crl.Appeal No.198/11 ## -:15:- _the appellant in the F.I.R. seems very significant in the circumstances of this case. Indeed, according to the version in the F.I.R., Joginder Singh, who was in the lane, is said to have arrived while Harbinder Singh was being injured. Therefore, if this was correct, the two injuries on Harbinder Singh must also have been inflicted in the lane outside._ _**11** . Satwant Kaur, PW 7, the wife of Uttam Singh, who claimed to have been an eye witness of the whole occurrence, was also not mentioned in the F.I.R. Suresh had, according to her, stabbed Harbinder Singh on theright side of the chest at the door of the kitchen, and, thereafter, Pandey was said to have attacked him.”_ ## (ii) _**Ishwar Singh v. State of Uttar Pradesh**_ {AIR 1976 ## SC 2423}. In paragraph 5, it was held as under:- _**“5** . Mr. Frank Anthony appearing for appellant Ishwar Singh submitted that in affirming the Judgment of the trial Court, the High Court also overlooked certain important aspects of the case that the Sessions Judge had failed to consider. He pointed out that the F.I.R. which is stated to have been lodged at 9.05 A.M.on February 14, 1973 was sent out from the police station the next day, February 15; the time when it was despatched is not stated, but it appears from the record that the Magistrate received it on the morning of February 16. The Court of the Magistrate was nearby, which makes it difficult to understand why the report was_ Crl.Appeal No.198/11 -:16:- _sent to him about two days after its stated hour of receipt at the police station. Section 157 of the Code of Criminal Procedure, 1898 as well as of 1973 both require the first information report to be sent "forthwith" to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, as Mr. Anthony suggested, that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when one finds that the case made in court differs at least in two very important particulars from that narrated in the F.I.R. Mahabir Singh, who lodged the first information report, stated in Court that he had invited some people to his house to effect a settlement between him and Ishwar Singh, and that he had also sent Ghanshyam to call Ishwar Singh there. The F.I.R. does not mention anything like this. From the F.I.R. it appears as if the accused persons came uninvited to his house, demanded why he had demolished the drain, and started assaulting him and the other persons who were present there. It is also difficult to understand why Mahabir should invite anyone to his house for a settlement, if really Ishwar Singh had permitted_ Crl.Appeal No.198/11 ## -:17:- _him to demolish the drain as he claimed. Further, the F.I.R. does not mention that Mahabir and Satyapal wielded lathis in their defence when attacked and that this resulted in some of the accused getting injured; but that is what both Mahabir (P. W. 1) and Satyapal (P. W. 2) stated in their evidence in court. These variations relate to vital parts of the prosecution case, and cannot be dismissed as minor discrepancies. In such a case, the evidence of the eye-witnesses "cannot be accepted at its face value", as observed by this Court in Mitter Sain v. State of U. P., AIR 1976 SC 1156._ ## (iii) In _**Marudanal Augusti v. State of Kerala**_ {1980 SCC (Cri) 985) it is held that, once FIR is held to be fabricated or brought into effect long after the occurrence, the entire prosecution case would collapse. ## (iv) _**Meharaj Singh v. State of U.P.**_ [1994 SCC (Cri) ## 1390]. Paragraph 12 being relevant, reads as under:- _**“12.** 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 prompt 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 parts played_ Crl.Appeal No.198/11 ## -:18:- _by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo_ Crl.Appeal No.198/11 ## -:19:- _state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then antetimed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8.”_ ## (v) _**Arjun Marik v. State of Bihar**_ [1994 Supp (2) SCC 372]. Paragraph 24 reads as under:- _**“24.** The matter does not stop here. There is yet another serious infirmity which further deepens the suspicion and casts cloud on the credibility of the entire prosecution story and which has also been lost sight of by the trial court as well as the High Court and it is with regard to the sending of occurrence report (FIR) to the Magistrate concerned on 22-7-1985 i.e. on the 3rd day of the occurrence. Section 157 of the Code of Criminal Procedure mandates that if, from information received or otherwise, an officer in charge of police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence upon a police report. Section 157, CrPC thus in other words directs the_ Crl.Appeal No.198/11 ## -:20:- _sending of the report forthwith i.e. without any delay and immediately. Further, Section 159 CrPC envisages that on receiving such report, the Magistrate may direct an investigation or, if he thinks fit, to proceed at once or depute any other Magistrate subordinate to him to proceed to hold a preliminary inquiry into the case in the manner provided in the Code of Criminal Procedure. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest despatch which intention is implicit with the use of the word “forthwith” occurring in Section 157, which means promptly and without any undue delay. The purpose and object is so obvious which is spelt out from the combined reading of Sections 157 and 159 CrPC. It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation.'_ (vi) _**Biju v. State of Kerala**_ (2012 (4) KLT 382), after referring to the Apex Court judgments in _**Thulia Kali v. State of Tamil Nadu**_ ((1972) 3 SCC 393), _**Arjun Marik & Ors. v. State of Bihar**_ (1994 (1) KLT SN 33 (C.No.32) SC = JT 1994 (2) SC 627), and _**Bhajan Singh alias Harbhajan Singh and Ors. v. State of Haryana**_ (2011 (3) KLT SN 59 (C.No. 57) SC = AIR 2011 SC Crl.Appeal No.198/11 -:21:- ## 2552) held as follows: _“Thus, it is well settled that the F.I.R. should reach the Magistrate immediately and without undue delay. It is also well settled that mere delay in sending the F.I.R. to the Magistrate cannot be a ground for throwing away the prosecution case if the evidence adduced in the case is found to be credible and unimpeachable. The significance of sending the F.I.R. immediately and without delay to the Magistrate cannot be overemphasised as it has a vital and valuable role to be played in a criminal trial. Therefore, S.157 of Cr.P.C. has to be followed in letter and spirit. This Section mandates that if, from information received or otherwise, an officerin-charge of a police station has reason to suspect the commission of an offence which he is empowered under S.156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report. The word 'forthwith' employed in this Section mandates in unequivocal terms that the F.I.R. should be sent by the concerned police officer immediately and without any delay.”_ ## (vii) _**Musheer Khan v. State of Madhya Pradesh**_ (AIR ## 2010 SC 762). Paragraph 22 reads as under:- _**“22** . So far as identification by PW-3 is concerned, the Court must take into consideration the extremely limited opportunities which PW-3 had of seeing the accused persons.”_ Crl.Appeal No.198/11 -:22:- (viii) _**OMA v State of Tamil Nadu**_ (AIR 2013 SC 825). Apex Court in this case held that if the FIR is lodged against unknown persons, the only way of identifying such persons is by conducting an identification parade. (ix) _**Manzoor v. State of Uttar Pradesh**_ (1982 SCC (Cri) ## 356). Paragraph 12 reads as under:- _**“12.** There is then the evidence of PWs 1 and 2, the homeguards of whom only PW 2 had identified the appellants in the identification parade held on November 17, 1978. The four homeguards including PWs 1 and 2 are stated to have flashed their torchlights and to have seen the two persons running away from the scene of occurrence after they had heard the alarm of the injured Gul Bahar near the railway line. The torches have not been produced in evidence, and the Investigating Officer (PW 12) would say in his evidence that he saw those torches and returned them to the homeguards. It is not known why the Investigating Officer (PW 12) thought it fit to return the torches with the aid of which the homeguards are stated to have seen the two persons running away from the scene of occurrence though that will be a relevant piece of material evidence in the case. PW 12 has stated that after recording the statement (Ex. Ka11) of the deceased Gul Bahar at the District_ Crl.Appeal No.198/11 -:23:- _Hospital, Saharanpur he went to the mela and recorded the statements of the four homeguards. This evidence of PW 12 shows two things, namely, (1) that the homeguards would have been on duty at the mela in the night of September 22/23, 1978 and could not have been on patrol duty, moving about near the railway line or the lime kiln which is stated by PW 12 to be situate one furlong away from the mela, as PWs 1 and 2 would have it, and (2) that none of the homeguards could have accompanied the injured Gul Bahar from the petrol pump where the first information report (Ex. Ka-1) is stated to have been recorded to the police station, for if any homeguard had accompanied the injured Gul Bahar to the police station he would have been examined by the police at the police station itself in connection with this case and it would not have been necessary for PW 12 to have examined that homeguard only at the mela. The evidence of PWs 1 and 2 that Ex. Ka-1 was recorded at the petrol pump is not reliable, for it is stated in Ex. Ka-1 that one of the homeguards took down the deceased statement and brought him to the police station after recording the report. From the statement in Ex. Ka-1 that one of the homeguards brought the deceased to the police station, it would appear that Ex. Ka-1 could have been written only after the injured Gul Bahar had been taken to the police station and not earlier. It_ Crl.Appeal No.198/11 ## -:24:- _is to be noted that none from the petrol-pump and the rickshaw-puller who is stated to have carried the injured Gul Bahar from the petrol-pump to the police station has been examined as a witness at the trial. It is seen from the evidence of PW 12 that the homeguards did not give him the description of any of the culprits when he examined them and that he did not even ask them about it though it is stated in the report Ex. Ka-1 that the homeguards had seen the culprits thoroughly and identified them. If at the earliest opportunity the homeguards did not mention any identifying features of the culprits when they were examined by PW 12, it is difficult for us to believe how PW 2 could have identified both the appellants nearly two months later on November 17, 1978. It has to be noted that the appellants have stated in the trial court that they were shown to the witnesses before the identification parade was held. In these circumstances we are not impressed with the evidence of PWs 1 and 2.”_ ## (x) _**Mohanlal Gangaram Gehani v. Sate of**_ ## _**Maharashtra**_ (1982 SCC (Cri) 334). Paragraph 25 reads as under:- _**“25.** The only other evidence against the appellant is that of PWs 3 and 4. So far as PW 3 is concerned his evidence also suffers from the same infirmity as_ Crl.Appeal No.198/11 -:25:- _that of Shetty. PW 3 (Shaikh) admits at p. 22 of the paper-book that he had not seen the accused or any of the three accused before the date of the incident and that he had seen all the three for the first time at the time of the incident. He further admits that the names of the accused were given to him by the police. In these circumstances, therefore, if the appellant was not known to him before the incident and was identified for the first time in the court, in the absence of a test identification parade the evidence of PW 3 was valueless and could not be relied upon as held by this Court in V.C. Shukla v. State (Delhi Admn.) where this Court made the following observations: (SCC p. 677, para 24)_ _“Moreover, the identification of Tripathi by the witness for the first time in the court without being tested by a prior test identification parade was valueless.”_ 25. Learned Public Prosecutor on the other hand while supporting the judgment of the court below, relied upon judgments in:- ## (i) _**Harivadan Babubhai Patel v. State of Gujarat**_ ## [(2013) 7 SCC 45]. Paragraphs 16 and 17 read as under:- _**“16.** The next limb of attack relates to the confessions made by the accused persons and the issue of leading to discovery of articles. It is_ Crl.Appeal No.198/11 ## -:26:- _submitted that the confession part is absolutely inadmissible and that apart, when the panch witnesses had not supported the panchnama, the recovery or discovery of the seized articles cannot be utilised against the appellant. There can be no shadow of doubt that the confession part is inadmissible in evidence. It is also not in dispute that the panch witnesses have turned hostile but the fact remains that the place from where the dead body of the deceased and other items were recovered was within the special knowledge of the appellant._ _**17.** In this context, we may usefully refer to A.N. Venkatesh v. State of Karnataka[6] wherein it has been ruled that: (SCC p. 721, para 9)_ _“9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found … would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 [of the Evidence Act] or not….”_ _In the said decision, reliance was placed on the principle laid down in Prakash Chand v. State (Delhi Admn.). It is worth noting that in the said case,_ Crl.Appeal No.198/11 ## -:27:- _there was material on record that the accused had taken the investigating officer to the spot and pointed out the place where the dead body was buried and this Court treated the same as admissible piece of evidence under Section 8 as the conduct of the accused.”_ ## (ii) _**Gura Singh v. State of Rajasthan**_ [(2001) 2 SCC ## 205]. Paragraph 20 reads as under:- _**“20.** In view of the authoritative pronouncement of this Court in Teja Ram case we do not find any substance in the submissions of the learned counsel for the appellant that in the absence of the report regarding the origin of the blood, the trial court could not have convicted the accused. The Serologist and Chemical Examiner has found that the chadar (sheet) seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with the lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant.”_ ## (iii) _**Kunju Muhammed Alias Khumani v. State of**_ ## _**Kerala**_ (2004 SCC (Cri)1425). Paragraph 16 reads as under:- _**“16.** We are at pains to appreciate this reasoning_ Crl.Appeal No.198/11 ## -:28:- _of the High Court. This witness has not been treated hostile by the prosecution, and even then his evidence helps the defence. We think the benefit of such evidence should go to the accused and not to the prosecution. Therefore, the High Court ought not to have placed any credence on the evidence of such unreliable witness.”_ 26. There is no dispute about the legal position involved in the judgments cited on either side. In fact, it is settled law that though the FI Statement can only be used to corroborate or conflict its maker, if the omissions of important facts are brought out, affecting the probabilities of the case, those become relevant under Section 11 of the Evidence Act, in judging the veracity of the prosecution case. It is also settled law that the FIR has to be sent forthwith to the Magistrate who is competent to take cognizance of the offence as provided under S.157 of the Cr.P.C. In _**Ishwar Singh**_ (supra), though the FIR was lodged at 9.05 am on 14/2/1973, it was sent from the police station only on the next day, ie February 15 and received by the Magistrate in the morning of 16[th] February. It was held that in the absence of any explanation for the extra ordinary delay in sending report to the Magistrate, it provides a legitimate basis for suspecting that the Crl.Appeal No.198/11 -:29:- FIR was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and to set up a distorted version of the occurrence. The suspicion hardens into a definite possibility when it is found that the case made in Court differs atleast in two very important particulars from that narrated in the FIR. It is held that, if the variations relate to vital parts of the prosecution case in comparison with what is mentioned in the FIR, the evidence of eye witnesses cannot be accepted at its face value. The delay in lodging FIR has also been considered in _**Marudanal Augusti**_ (supra) where the delay was 29 hours from the date of lodging the FIR. 27. On an ultimate analysis of the case law, two aspects are clear that (1) First Information Report should reach the Magistrate immediately without any undue delay and (2) if there are substantial variations in the evidence, in regard to vital parts of the FI Statement, it amounts to contradictions. However, the prosecution case cannot be rejected based on minor discrepancies. 28. PW1 has given FI statement at 8 am on the same day Crl.Appeal No.198/11 -:30:- when the crime was committed. It reached the Magistrate by 9.30 p.m. PW20, the investigating officer has not been questioned about the delay in sending the FIR. It was registered by PW18. He was questioned about the same. According to his evidence, after registration of the FIR, he had sent it to the Magistrate immediately. However, the time at which it was sent to the Magistrate is not recorded, and express report was submitted to the higher officers as well which was not recorded in the list. Once the FI Statement has been recorded and the FIR is registered, there is an obligation cast upon the officer in charge of a police station to forthwith send a report to the Magistrate who is empowered to take cognizance. As rightly pointed out by the learned counsel for appellant and as held in the judgments above, this procedure is adopted to avoid any embellishment at a later stage. Therefore, the question that could be considered is whether the evidence adduced before Court through the witnesses suffered from any material contradictions by which there was an opportunity for any embellishment of the FI statement. 29. It is relevant to note that the FI Statement was given at Crl.Appeal No.198/11 -:31:- 8.00 a.m immediately after PW1 coming to know that his daughter was murdered and his son has suffered serious injuries. Probably, he would not have clearly seen the accused at the relevant time. However, while examined as PW1, he says that he had identified the accused. In cross examination, he deposed that on the fateful day, all of them had gone to attend the Onam celebrations. They came back around 9.30 at night, had their food and went to bed. He was asked as to why he did not mention about lighting the lamp, after hearing their cry. He stated that he has nothing to state. There is no power connection in his house. He had seen the person in the light from the kerosene lamp. He further deposed that he had not given statement to the police stating that he could not exactly see the assailant. He also had not stated any of the physical features of the accused. The assailant ran through the back door. The lamp was kept in his room and the police party had come between 6 to 7 in the morning and somebody who had come in the morning had removed the lamp. He had shown the lamp to the police and police has recorded the same and he had signed it. By about 10 a.m, he went to the Paravur police station. Accused was seen in Crl.Appeal No.198/11 -:32:- the Station. Wife became unconscious on seeing the injured children. Wife also was taken to the hospital. Of course, in his evidence, he has not stated as to who has committed the crime. However, in evidence, he submits that the accused had committed the crime and he had seen him. 30. Even assuming that PW1 had not seen the accused in that struggle between his son and the assailant, evidence of PW3 would show that she had identified the accused. In her cross examination, she states that there was no light in the room where daughter was sleeping. Kitchen is on the immediate east. From the room, there is no door to the kitchen. She reiterates that she had lighted the kerosene lamp, she caught hold of the assailant, he pushed her down along with the lamp and ran away. She also ran behind him, she fell, got up and again ran behind him, came back and again lighted the lamp. There was absolutely no contradiction in the evidence of PW3. From her evidence, it is apparent that PW1 would have omitted to mention about the lamp while giving FI statement. He would also have seen the accused and probably he may have some doubt. He would have required confirmation. That might be the reason why he did not Crl.Appeal No.198/11 -:33:- mention about the name of the accused while giving FI statement. Evidence of PW3 is further corroborated by the evidence of PW4, brother of the deceased. He mentioned about the struggle he had with the accused. In his evidence also, no contradiction was brought out. However, he was questioned as to why he did not mention the name of the assailant to the Doctor, his answer was that he had no previous acquaintance with the accused. He was unconscious when he reached the hospital. While he was sleeping, he did not mention to the Doctor as to who stabbed him. Even assuming that there is some infirmity in the deposition of PW1 taking into account the omission in Ext.P1, the evidence of PWs 3 and 4 is very categoric. PW3 has seen the accused earlier. PW4 had a struggle with him. PW3 had clearly stated that she lighted the lamp and thereafter the accused pushed her down along with the lamp. Therefore, there is every possibility of PWs 3 and 4 clearly having a view of the accused. When the accused is identified by the deposition of PWs 1, 3 and 4, which is again supported by the testimony of PW6 Vinod, who had clearly stated about the incident on the previous day, when Laya had complained about the nuisance being created by the accused, the Crl.Appeal No.198/11 -:34:- accused trying to follow them and the interference of Vinod in the matter. Apparently, this is an instance where the accused wanted to continue the relationship with the deceased and had expressed his desire to marry her which was not accepted by the deceased as well as her family members which is the motive behind the heinous crime. 31. Taking into account the aforesaid factual scenario involved in the case, we do not think that there is any material contradiction in the evidence of the witnesses in order to arrive at a conclusion that the FI statement was deliberately delayed or that, any prejudice had been caused to the accused on account of the FI statement reaching the Magistrate only at 9.30 p.m. on the same day nor are we of the view that any evidence had been manipulated by the prosecution. 32. As far as the identity of the accused is concerned, when we accept the version of Pws1, 3, 4 and 6, his identity is clear. PW1, PW3 and PW6 have seen the accused earlier. Evidence clearly indicates that he had come to PW1's house making a demand that Laya should be given in marriage to him. Therefore, identity of the accused is proved. The only thing is PW3 has seen Crl.Appeal No.198/11 -:35:- the accused only on the fateful day. He was very close to the accused and they were involved in a fight or struggle. He is a person who could easily identify the assailant. There is absolutely no contradiction in his evidence in that regard. That apart, an identification parade is required to be conducted only for the purpose of investigation. Once the assailant is known to the members of the deceased family, there is no question of any further identification parade being conducted as contended by the learned counsel for appellant. The position of law in this regard is well settled in the judgment of the Apex Court in _**Manu Sharma v. State (NCT of Delhi)**_ [(2016) 6 SCC 1], wherein the Apex Court had occasion to consider the requirement of TIP. It was held at paragraph 254 as under:- _“254. Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right_ Crl.Appeal No.198/11 ## -:36:- _person as an accused. The practice is not borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation.”_ In that case, the Apex Court also referred to most of the earlier judgments on the point. Therefore, the contention that in the absence of any identification parade, the identity of the accused could not have been ascertained cannot be accepted. 33. Evidence of PW13 clearly indicates that the accused has purchased MO1 knife from him, a week before the incident. His evidence is without any contradiction and believable. 34. The Doctor who has been examined as PW19 had categorically stated that the ante-mortem injuries on the deceased could be caused by MO1 knife. There are 16 injuries on the deceased in the neck as well as in the chest. The murder is brutal without giving any opportunity for her to live again. Similarly, evidence of PW15 proves the injuries caused to Lijil (PW4). He also stated that the said injuries could be caused by any sharp weapon and that it is probable that the injuries were caused while the victim was lying down. PW16 also proves the Crl.Appeal No.198/11 -:37:- injuries caused to Lijil and had stated that the said injury could be caused by MO1 knife. 35. The next contention is with reference to the recovery of the knife and the articles belonging to the accused. PW10 has turned hostile. He was examined to prove that he had given his cycle to the accused on 5/9/2006. Ext.P5 is the statement which he had given to the police. PW11 though has signed Ext.P6 when his shirt, pants and cycle were recovered, he had stated that he was not there at the time when the police had come. According to him, he had not seen the police recovering anything from the house of accused. PW12 is a witness to Ext.P7 seizure mahazar dated 7/9/2006. He deposed that he had seen recovery of the knife MO1. In cross examination, he says that when he reached the place there were lot of people. The knife was on the table. He does not remember the time. He had not seen the police taking measurement of the knife. When he was further cross examined, he stated that he had signed in the police station and he does not know anything else. Recovery of MO1 knife has not been properly proved is the contention urged by the learned counsel for appellant. On the other hand, while relying upon the judgment in Crl.Appeal No.198/11 -:38:- _**Harivadan Babubhai Patel**_ (supra), in order to contend that even if the confession part is absolutely inadmissible and the witnesses have not supported the panchnama, when the conduct of the accused is relevant, if the dead body of the deceased and other items were recovered was within the special knowledge of the accused, the conduct of such person is relevant and the same is admissible piece of evidence under Section 8 of the Evidence Act. In _**State of Maharashtra v. Ramlal Devappa Rathod,**_ [(2015) 15 SCC 77], the Apex Court placing reliance upon _**Mohd. Aslam v. State of Maharashtra**_ [(2001) 9 SCC 362] and _**Anter Singh v. State of Rajasthan**_ [(2004) 10 SCC 657] held as under: _“19. It also requires to be noted that pursuant to the disclosure statements made by A-1 Ramlal, A-2 Ramchandra, A-3 Limbaji, A-29 Shivaji and A-30 Pandit, certain weapons with bloodstains were recovered immediately on the day after the incident. The aforesaid recoveries have been doubted by the trial court inasmuch as the independent panchas had not supported the prosecution case. However, PW 18 Pratap Kisan Pawar in his testimony deposed that such recoveries were made pursuant to the disclosure statements of the accused. It has been laid down_ Crl.Appeal No.198/11 -:39:- _by this Court in Mohd. Aslam v. State of Maharashtra and Anter Singh v. State of Rajasthan that the recoveries need not always be proved through the deposition of the panchas and can be supported through the testimony of the investigating officer. The fact that the recoveries were made soon after the incident is again a relevant circumstance and we accept that the recoveries can be considered against the respondents as one more circumstance.”_ Apparently, in this case, the recovery of the knife was from a place near PW1's house. The accused had shown the knife from among the shrubs from a nearby water channel, which is near the property of one Janardhanan. That apart, evidence of PW13, the person who had sold the knife to the accused in his evidence had clearly identified MO1 knife and the accused. Evidence of Investigating Officer proves the recovery, based on the disclosure statement of the accused. There is absolutely nothing in his evidence to discredit the said witness. The Doctor who had conducted the postmortem and the Doctors who have treated PW3 have given evidence stating that the injuries on both of them could be inflicted by MO1 knife. Therefore, the recovery of MO1 knife is an additional circumstance which has been proved by the Crl.Appeal No.198/11 -:40:- ## prosecution connecting the accused to the crime. 36. One another contention urged is regarding the presence of undigested food in the stomach of the deceased as evident from the post mortem certificate. The contention is that the time of death may not be correct. We do not think that presence of undigested food in the stomach of the deceased by itself can be taken as a reason to discard the oral testimony of eye witnesses to the incident. 37. Having taken into account the entire evidence adduced in the case, we are of the view that the prosecution has succeeded in proving the guilt of the accused with reference to the aforesaid crime beyond all reasonable doubt. Court below was therefore justified in convicting the accused. We do not think it necessary to interfere with the sentence, as well. Appeal is dismissed. ## Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **P.SOMARAJAN, JUDGE** Rp //True Copy// PS to Judge