2008 Supreme(SC) 1829

2008(8) Supreme 681
SUPREME COURT OF INDIA
S.B. Sinha and Cyriac Joseph, JJ.
Om Prakash — Appellant
versus
State of U.P. — Respondent
Criminal Appeal No. 1022 of 2004
Decided on : 12.12.2008

IMPORTANT POINT
Discrepancy as regards timing of lodging of First Information Report is fatal to prosecution case.

Headnote:Indian Penal Code, 1860 – Sections 148, 452 and 302 read with Section 149 – Prosecution of accused persons seven in number for entering into house of informant at night armed with country made pistols and licensed guns and for causing death of deceased by firing shots at him – Conviction of all accused persons by Trial Court – High Court however found only appellant guilty of firing of a shot at the deceased, opining that participation of other accused in the commission of the said offence was not proved beyond doubt – Appeal – The High Court, committed a serious error insofar as it proceeded on basis that shots fired by appellant caused the fatal injury- High Court did not analyze evidence on record as to who caused other firearm injuries – If the prosecution witnesses, who were said to be the eye-witnesses, were to be believed, 6 out of 7 accused could not have been acquitted and particularly those who had direct enmity with deceased and his sons – Non examination of scribe of the FIR – No reason as to why inquest report, preparation of seizure memo etc. which were to be carried routinely, were not brought on record- Nothing on record to show that appellant had been bearing any animosity against deceased – On the other hand, other accused were having animosity towards deceased, and his family – Indisputably, there existed a discrepancy as regards timing of lodging of First Information Report – P.W.3, Head Constable, testified that it was lodged at 4.45 a.m. – Records, however, showed otherwise – In the FIR, it was shown to have been lodged at 4.45 p.m – Moreover, if the First Information Report was lodged early in the morning, there was absolutely no reason as to why investigation did not start immediately thereafter – Apart from that, except appellant all other accused had been acquitted – High Court, therefore, did not rely upon prosecution case in its entirety – While doing so, unfortunately, High Court did not consider vital aspects of matter which were crucial for determination of issue – Impugned judgment of High Court could not be sustained and it was set aside accordingly – Appeal allowed. (Paras 13 to 18)

       Facts of the Case :

        1. Accused persons seven in number were prosecuted herein in the instant case for entering into house of informant at night armed with country made pistols and licensed guns and for causing death of deceased by firing shots at him. Trial Court convicted all accused persons. High Court however found only appellant guilty of firing of a shot at the deceased, opining that participation of other accused in the commission of the said offence was not proved beyond doubt.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        High Court, committed a serious error insofar as it proceeded on basis that shots fired by appellant caused the fatal injury. High Court did not analyze evidence on record as to who caused other firearm injuries. If the prosecution witnesses, who were said to be the eye-witnesses, were to be believed, 6 out of 7 accused could not have been acquitted and particularly those who had direct enmity with deceased and his sons. There was no reason as to why inquest report, preparation of seizure memo etc. which were to be carried routinely, were not brought on record. There was nothing on record to show that appellant had been bearing any animosity against deceased. On the other hand, other accused were having animosity towards deceased, and his family. Indisputably, there existed a discrepancy as regards timing of lodging of First Information Report- P.W.3, Head Constable, testified that it was lodged at 4.45 a.m- Records, however, showed otherwise. In the FIR, it was shown to have been lodged at 4.45 p.m. Again, if the First Information Report was lodged early in the morning, there was absolutely no reason as to why investigation did not start immediately thereafter. Apart from that, except appellant all other accused had been acquitted. High Court, therefore, did not rely upon prosecution case in its entirety. While doing so, unfortunately, High Court did not consider vital aspects of matter which were crucial for determination of issue. Impugned judgment of High Court could not be sustained and it was set aside accordingly.

       Result : Appeal allowed.