1994 Supreme(Bom) 144

IN THE HIGH COURT OF BOMBAY
H.H. Kantharia M.F. Saldanha, JJ.
Chandru Parappa Kumbhar and others .... Appellants.
Versus
The State of Maharashtra.... Respondent.
Criminal Appeal No. 372 of 1992, decided on 30/31-3-1994.
Advocates appeared :
N.V. Pradhan and Kumari S.D. Khot, for the appellants original accused Nos. 1 to 6.
D.T. Palekar, A.P.P., for the respondent- State.

Headnote:Section 154-Evidence Act, 1872, Sections 3 and 61-F.I.R.-Delay in lodging of-Its effect-Before trial court but not appellate court explanation to be given for--Delay almost fatal to the case-Benefit of doubt be given to accused not named in F.I.R.

       The sacred duty of the prosecution is a duty which has to be discharged before the Trial Court and not the Appeal Court and that any valid or cogent explanation that may be available or valid ground on which important factors like delay can be offset must be placed before the Trial Court. Long delay in the lodging of a First Information Report is almost a fatal circumstance in a criminal prosecution. Having regard to the generality of the situation, however, it is accepted position that the remoteness of the area could have contributed to same delay, but one cannot overlook the fact that undisputedly the villagers and particularly the family members, must have been in consultation with each other and, therefore, cannot rule out the possibility of accused Nos. 4 and 5 having wrongly been implicated. The same would apply to original accused No.6, to whom no covert act is attributed specifically as far as the assault is concerned but who is also mentioned as one of the instigators obviously because he was the elder member of that faction. Having regard to this situation, the High Court do considers that it will be necessary in law to give the benefit of doubt to original accused Nos. 4 and 5 in the peculiar and special circumstances of this case.

       Section 211-Charge-Framing of.

       Held, that defect in language of charge not affecting evidence or causing no prejudice would not vitiate trial.

       A mere defect in the language or in the narration or in the sequence or, for that matter, in the form of the charge would not necessarily vitiate the trial. It is in these circumstances that though we accept the position that a better job could have been done while framing the charge. We are not prepared to hold that the accused were either handicapped, prejudiced or adversely affected in the conduct of the evidence as a result of the manner in which the charge have been framed. The basic ingredients are present and to that extent, therefore, the objection that has been canvassed by Shri Pradhan with regard to the applicability of the principle of a defective charge that vitiated a trial must necessarily be overruled.

       Sections 3 and 61-Mnrder-Charge of.

       Allegation of assault and several blows with a stick but absence of injury on body or vital parts vide, medical report-The High Court held that court cannot go back to realm of conjectures and hypothesis more so when medical evidence slient because documentary evidence more reliable than repetitive oral evidence .

       Section 34-Evidence Act, 1872, Sections 3 and 59-Accused-Preseoee of on scene.

       Mere his presence not sufficient to count him but some over act for showing his past to be proved.

       Section 149-Applicability of.

       The High Court bas already recorded a finding in the earlier part of this judgment that the names of accused Nos. 4 and 5 do not appear in the First Information Report This is despite the fact that the First Information Report was lodged fourteen hours after the incident. There can be no manner of doubt that some amount of discussion and talk must have taken place, particularly between the widow of the deceased and those of the family members and persons who bad collected there. The persons who arc alleged to have taken part in the assault are not outsiders or unknown strangers They were people living in the other section of the house itself and in these circumstances it is just not possible that the name, of accused Nos. 4 and would have been inadvertanly leftout even if they were the participants in the offence. Their having followed the deceased J or their having been somewhere around that place is an entirely different matter, but the High Court is only concerned with the aspect of participation in the criminal offences. Even as far as accused No.6 is concerned, the position that emerges that the evidence in relation to his culpability is, to say the least, doubtful. Under these circumstances it is already held that accused Nos. 4, 5 and 6 would be entitled to the benefit of doubt and the only logical conclusion that would emerge from that situation would be that accused Nos. 4, 5 and 6 would have to be excluded from the allegation that they had participated in the assault. In this view of the matter the finding that Section 149 of the Indian Penal Code would apply on the facts of the present case is erroneous and would have to be set aside.

       PENAL CODE, 1860

       Section 302-Appllcability of.

       There is considerable substance in the contention that the fact that the food was in a semi-digested condition would clearly indicate the passage of a reasonably long period of time between the time when the last meal was taken and the death had occurred. This would, undoubtedly, support his contention that J must have been alive for quite sometime after the assault. It would also support the earlier contention that the injuries inflicted on J were not that grievous or that serious as to send him into immediate shock and death. Had that happened, the applicability of Section 302 of the Indian Penal Code would have been difficult to dispute.

       Section 304, Part II,-Kotya and knife-Using of not on vital parts.

       Assault weapons not significant-Intention to kill not proved but to injure alone-Hence no charge of culpable homicide can be imposed.