IMPORTANT POINTS
FIR lodged after unexplained delay that too suppressing the actual FIR filed by deceased before his death cannot be considered as FIR. It can at best be a statement of the informant u/s 161 CrPC.
Accused cannot be convicted in the face of major contradictions in evidence.
The view taken by court below, if a possible view, cannot be interfered.
While issues are framed under CPC, charges are framed under CrPC. Therefore framing of charges and issues both in a criminal trial is not permissible.

JUDGMENT :

Mohan M. Shantanagoudar, J.

1. This appeal is directed against the judgment dated 03.02.2010 passed by the High Court of Madhya Pradesh, Bench at Gwalior in Criminal Appeal No. 599 of 2001. The High Court while allowing the appeal had acquitted the accused and set aside the judgment dated 07.11.2001 passed by the Additional Sessions Judge, Sironj, District Vidisha in Sessions Trial No. 73/92 convicting the four respondents for the offences punishable under Sections 302, 324 and 323 read with Section 34 of the Indian Penal Code (for short ‘the IPC’).

2. The case of the prosecution in brief is that there was a dispute in respect of a pathway between the deceased (Devi Singh) and Salag Ram. In order to resolve the dispute, the jurisdictional Tehsildar with the help of others got measured the place and found that the deceased had closed the way and consequently the way was got opened. However, the misunderstanding in respect of the earlier dispute continued. At about 9.00 am on 30.08.1991, 18 persons including the respondents, formed themselves into an unlawful assembly and broke into the residential house of the complainant - Khilan Singh in order to cause injury to Devi Singh. The accused were carrying farsi (sharp edged object), lathis and other weapons. They dealt blows on the head of Khilan Singh, as a result of which he fell down. At that juncture, the deceased, Devi Singh, intervened and he was also assaulted by the accused persons with farsi and lathis, as a result of which the deceased fell down on the ground. The First Information Report (for short ‘the FIR’) came to be lodged at about 8.30 pm on 30.08.1991. The charge-sheet was filed for various offences including the offence under Section 302 read with Section 149 of the IPC. As mentioned supra, the Trial Court convicted the respondents/four accused, namely, Ratan Singh S/o Gulab Singh, Chandan Singh S/o Gulab Singh, Salag Ram S/o Mohan Singh and Ramesh S/o Aman Singh for charges levelled against them and sentenced them to undergo imprisonment for life. The appeal filed by the convicted accused before the High Court was allowed and they were acquitted vide the impugned judgment. Hence, this appeal by the State.

3. Learned Advocates on both sides argued in support of their respective contentions. Both of them have taken us through the evidence on record. In order to satisfy our conscience and as there were divergent findings, the evidence on record is considered at length.

4. To begin with, though the incident has taken place at about 9.00 am on 30.08.1991 and though the names of all the 18 persons were known to the complainant - Khilan Singh, absolutely no valid reason was forthcoming on record as to why there was a delay in lodging the FIR. The Courts generally will not disbelieve the version of the eye witnesses even if there is some delay in lodging the FIR, if the versions of the eye witnesses are reliable and trustworthy. However, the delay needs to be explained. This Court, in Apren Joseph v. State of Kerala, (1973) 3 SCC 114, emphasised that since a promptly filed FIR reflects reduced chances of embellishment, fabrication or distortion in memory, in cases of delay in filing the FIR it is important to assess the explanation therefore, to look for possible ulterior motives, and to assess its effect on the credibility of the prosecution version. The following observations of the Court are pertinent in this regard:

“11. Now first information report is a report relating to the commission of an offence given to the police and recorded by it under Section 154, CrPC As observed by the Privy Council in K.E. v. Khwaja, [AIR 1945 PC 18 : ILR 1945 Lah 1 : 71 IA 203] the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eye witness. First information report under Section 154 is not even considered a s