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SUPREME COURT OF INDIA
N.V. Ramana, Mohan M. Shantanagoudar, Sanjiv Khanna, JJ.
OMBIR SINGH – APPELLANT(S)
VERSUS
STATE OF UTTAR PRADESH AND ANOTHER – RESPONDENT(S)
Criminal Appeal No. 982 of 2011
Decided on : 26-05-2020
Indian Penal Code, 1860 – Sections 302/ 34 – Arms Act, 1959 – Section 27 – Criminal Procedure Code, 1973 – Section 157 – Murder – Common intention – Life imprisonment – Delay in compliance of Section 157 of Cr.P.C. cannot, in itself, be a good ground to acquit appellant – PWs had correctly identified appellant and also narrated motive which would be a corroborative factor – Trial Court and High Court have correctly relied upon their ocular evidences – Appellant had absconded after incidence and was arrested later on – A witness would not be aware about difference between an officer of field unit and officers attached to Police Station – Similarly, fact that field unit had not recorded name of deceased in proceedings, is inconsequential for these details are duly mentioned in Panchayatnama and other documents which were prepared on same day and were sent to Doctor who had conducted post mortem – Murder had taken place in a residential locality and deceased was a well-known person and a local politician – Appellant is not entitled to same benefit of acquittal of co-accused – Conviction and sentence of appellant under Section 302 read with Section 34 of Indian Penal Code with Section 27 of Arms Act upheld. (Paras 4, 5, 6, 7 and 8)
Facts of the Case:
Appellant has challenged the judgment dated 27.10.2009, by Allahabad High Court, confirming his conviction under Section 302 read with Section 34 of the Indian Penal Code, 1860 and Section 27 of Arms Act, 1959. Appellant has also challenged sentence of life imprisonment and fine of Rs. 11,000/- imposed by Trial Court and confirmed by High Court.
Findings of the Court:
A witness would not be aware about the difference between an officer of field unit and officers attached to the Police Station. Similarly, the fact that the field unit had not recorded the name of the deceased in the proceedings, in our opinion, is inconsequential for these details are duly mentioned in Panchayatnama and other documents which were prepared on the same day and were sent to Doctor who had conducted the post mortem.
Result : Appeal dismissed.
JUDGMENT
Sanjiv Khanna, J.
The appellant Ombir Singh has challenged the judgment dated 27.10.2009, by the Allahabad High Court, confirming his conviction under section 302 read with Section 34 of the Indian Penal Code, 1860 ('IPC', for short) and section 27 of the Arms Act, 1959, for the murder of Abhaiveer Singh Bhadoria @ Munna on 15.07.1999 at about 9 am. The appellant has also challenged the sentence of life imprisonment and fine of Rs. 11,000/- imposed by the Trial Court and confirmed by the High Court.
2. Homicidal death of Abhaiveer Singh Bhadoria @ Munna on 15.07.1999 at about 9 am near the house of one Shivraj Singh Sengar is not challenged and disputed before us. The said factum has been proved, without any doubt, by documentary and ocular evidence which we would notice below and also by the post mortem report Ex.A/2 proved by Dr. Balbeer Singh (PW-3), who was then working as a surgeon in the District Hospital Itawa. He has deposed that Abhaiveer Singh Bhadoria @ Munna had died as a result of as many as 5 firearm injuries that he had identified by referring to five entry and five exit wounds. We shall subsequently refer to Dr. Balbeer Singh's (PW-3) testimony as to the time when he had received the dead body of Abhaiveer Singh Bhadoria @Munna and the details and documents made available to him by the Investigation Officer.
3. The prime arguments on behalf of the appellant are that the alleged eye-witnesses Dinesh Singh, the original complainant and brother of the deceased Abhaiveer Singh Bhadoria @ Munna, who has deposed as PW-1, and Mukesh Singh (PW-2) are unreliable, and they had been set-up and planted by the prosecution. In support, reliance is placed upon Dinesh Singh's (PW-1) and Mukesh Singh's (PW-2) version that they had not seen anyone from the field unit, though 14 photographs (Ex-13/C-1 to Ex-13/C-13) were taken by the field unit, as proved and deposed to by Rakesh Babu and Omkar Singh who had testified as Court Witnesses, CW-2 and CW-3. It was highlighted that the First Information Report ('FIR', for short), purportedly recorded on the details and information furnished by Dinesh Singh (PW-1), contrary to the mandate of Section 157 of the Code of Criminal Procedure ('Code', for short) was belatedly sent and received by the ilaka magistrate (Chief Judicial Magistrate in this case) after 11 days, and that the FIR was not sent to Dr. Balbeer Singh (PW-3) along with the inquest papers. Thus, it was submitted that the FIR was ante-timed and in the background of personal and political rivalry between the parties, the appellant had been framed by the two purported eye witnesses Dinesh Singh (PW-1) and Mukesh Singh (PW-2), who were not present at the spot and therefore, were not injured. The Trial Court had not accepted their testimonies against Pramod Singh, who as per said witnesses was present with the appellant and an equal participant in the occurrence, and was acquitted. These contentions have been contested by the counsel for the State, who has relied on the findings of the Trial Court which were affirmed by the High Court.
4. There was undoubtedly a delay in compliance of section 157 of the Code, as the FIR was received in the office of the Chief Judicial Magistrate with a delay of 11 days. Effect of delay in compliance of Section 157 of the Code and its legal impact on the trial has been examined by this court in Jafel Biswas vs. State of West Bengal, (2019) 12 SCC 560 after referring to the earlier case laws, to elucidate as follows:
"18. In State of Rajasthan [State of Rajasthan vs. Daud Khan, (2016) 2 SCC 607 : (2016) 1 SCC (Cri) 793] in paras 27 and 28, this Court has laid down as follows: (SCC pp. 620-21)
"27. The delay in sending the special report was also the subject of discussion in a recent decision being Sheo Shankar Singh v. State of U.P. [Sheo Shankar Singh vs. State of U.P., (2013) 12 SCC 539 : (2014) 4 SCC (Cri) 390] wherein it was held that before such a contention is countenanced, the accused
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