2007 Supreme(P&H) 127

2007(2) LAW HERALD (P&H) (DB) 1000
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice Uma Nath Singh
The Hon’ble Mr. Justice A. N. Jindal
Crl. A. No.93 DB of 2005
Mohinder Singh
v.
State of Punjab
Decided on 24/01/2007

IMPORTANT POINTS
FIR-Delay in lodging of--Only unexplained and unwarranted delay coupled with the likelihood of tailoring the evidence to suit the prosecution that could enure to the benefit of an accused is fatal.
Hostile Witness--Court can rely upon the part of testimony of such witness if that part of the deposition’ is found to be creditworthy.

Headnote:Criminal Trial--Courts supervising the investigation to direct complainant to produce the statements in the shape of affidavits duly attested by Magistrate, in non compoundable cases especially in heinous crimes-Such affidavit will remain in Court and it will form part of the report under Section 173 Cr.P.C., Principle explained.

       (A) Criminal Procedure Code, 1973, Section 154--First Information Report-- Delay in lodging the FIR--Two days delay--Three persons were injured--Out of them one suffered fatal injuries--Remained unconscious and succumbed to his injuries--All the injured were lying admitted in the hospital--Attendants must be busy in trying to save the life of the deceased--It could not be expected that they could themselves rush to police station to lodge the FIR--Two days delay in lodging FIR cannot be said to be unexplained. (Para 9)

       (B) Criminal Procedure Code, 1973, Section 154--First Information Report--Delay in lodging the FIR--Whether fatal?-Held; Only unexplained and unwarranted delay coupled with the likelihood of tailoring the evidence to suit the prosecution that could ensure to the benefit of an accused is fatal. (Para 9)

       (C) Evidence Act, 1872, Section 3--Hostile Witness--Witness did not support the prosecution case on some material points--Court is not rendered handicapped to evaluate such evidence--Court has to scrutinize the testimony with anxious care and caution--The mere fact that the witness has gone hostile, his testimony cannot be thrown in the dustbins--Court can rely upon the part of his statement if it is found to be creditworthy. (Para 12 & 13)

       (D) Evidence Act, 1872, Section 3--Hostile Witness--If on cross-- examination of the witness it has not lost the confidence of the Court and his credit has not been completely shaken--Corroborated by other evidence on material points--No embargo can be placed to disbelieve such witness merely on account of the fact that the has been declared hostile. (Para 15)

       (E) Penal Code, 1860, Section 300--‘Clause thirdly’--Murder--Out of five accused, except one accused, none of the accused caused injury to deceased--Deceased died after two days of occurrence--Deceased and accused were blood relations--Intention to cause death could not be gathered so as to bring the case within clause ‘thirdly’ of Section 300 IPC--Offence, held, falls under Section 304, Part II IPC. (Para 17 & 18)

       (F) Criminal Procedure Code, 1973, Section 154--Criminal Judicial Administration System--Witnesses change stand for variety of reasons--Refusal to support the case at the later stage and allowing the accused of a very heinous crimes to go scot free--The justice delivery system should not be taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge--Court should not sit to as a silent spectator--Necessary amendments to be made by the legislature. (Para 20)

       (G)Penal Code, 1860, Sections 304, Part II, 302, 307, 326, 325, 148 and 149--Murder--Appeal against conviction--Motive for causing injuries not challenged by the accused--Out of two injured eye witness, one has supported the prosecution case in material particulars--Medical evidence lends corroboration to the case of complainant party--Accused absconded after the occurrence--Out of five accused, except one accused, none of the accused caused injury to deceased--Deceased died after two days of occurrence--Deceased and accused were blood relations--Intention to cause death could not be gathered so as to bring the case within clause ‘thirdly’ of Section 300 IPC--Offence, held, falls under Section 304, Part II IPC. (Para 17 & 18)

       (H) Criminal Procedure Code, 1973, Section 173--Criminal Trial--Courts supervising the investigation to direct the complainant in non compoundable cases especially in heinous crime, where the private complainants are aggrieved, to product the statements of the complainant in the shape of affidavit (s) duly attested by the Magistrate along with the remand papers so that the same could be treated as previous statements during the trial but it is made clear that these duly sworn affidavits would not be before or in the presence of the police officers. The statements shall contain;

       (i) The brief allegations; .

       (ii) These have been made voluntary without any fraud, coercion or undue pressure or influence: and

       (iii) These could be used as previous statements and could be used against him. In case complainant attaches any documents, the same would form part of the statement. However, the aforesaid statement shall not affect any plea of bargaining in compounding process any other provision repugnant thereto as contained in the Code or any other law for the time being in force. On production of such affidavit(s) the same will remain in the custody of the Court and on production of the report under Section 173 Cr. P.C., it will form part of the same. In case of non-furnishing of affidavit(s) in support of his case by the complainant, The court may draw inference against such persons as circumstances permit on conclusion of trial. (Para 20)