Police Were At Informant's Doorstep, Yet Prompt Reporting Of Incident Was Withheld: Allahabad HC Acquits Murder Accused Over Delay Of 3.5 Hrs In Lodging Of FIR

A Division Bench comprising of Justices Manoj Misra and Sanjay Kumar Pachor held that the aforesaid delay was 'unreasonable' in view of the fact that the Police authorities arrived at the place of occurrence immediately after the incident.

The order stated,

"Normally, a delay of few hours, particularly in night incidents, might not be considered significant but here the police were at the doorstep of the informant and the injured (Pratap Shankar Mishra) was carried to the hospital by the police, with Mazrubi Chitthi, and a so-called witness, who was there at the place of incident and happens to be the brother of the eye-witness, yet prompt reporting of the incident was withheld, which suggests that either the incident was not witnessed or if witnessed, the identity of the assailant was not certain, therefore, the guess-work delayed the FIR."

Background

The Prosecution case was that at around 2:00 am, the Appellant-accused entered the Complainant's house and attacked her husband with a hockey stick. Her husband tried to run towards the courtyard but the accused caught him and shot at point-blank range on his neck.

She averred that her brothers who were asleep outside, woke up on hearing her cries and tried to catch the appellants, who were able to escape by jumping over the boundary wall.

Thereafter, the Police officers on patrol duty arrived on hearing the gunshot and noise and helped her in taking her husband to the Hospital, where her husband succumbed to the injuries.

Subsequently, at around 5:20 am, a FIR was registered.

Arguments

In appeal, the Appellants inter alia argued that the Complainant and her brother had not seen the incident.

It was averred that the presence of the alleged eyewitnesses at the time of the incident is highly doubtful and unbelievable because at the time of the incident they were present in Village Shivpur, which is around 12-14 Km away from the place of the incident. It was stated that both of them (alleged witnesses) were informed and called by the Police after the death of the injured, and it is for this reason that the FIR has been lodged after 3.20 hours.

Findings

The Court noted that there were several materials generating a doubt regarding the time of lodging of FIR. It observed,

1. The Complainant, even while witnessing her husband being caught and shot by the appellants, neither screamed nor cried for help; and her brothers woke up only after hearing the gunshot.

2. Even the deceased did not make any noise nor did he call his two brothers-in-law for help, who were sleeping at a distance of just 9-10 feet from the door of the room in the courtyard. He also did not call his mother (who was sleeping in the adjacent open terrace room) and wife for help.

3. The above circumstances rounds off to a probability that the Complainant and her brothers were not present at the time of the incident and did not see its occurrence; or that the incident did not occur in the manner as alleged by the prosecution; or that the incident was a split-second affair.

4. The police arrived at the place of occurrence immediately after the incident and arranged a vehicle for taking the injured to the hospital for medical assistance. During this time, the injured kept lying on the spot. Meanwhile, the Complainant's brothers were present at the police station before they reached the hospital. But despite all that, the FIR was not lodged till return of the Complainant from the hospital.

5. The FIR was not lodged soon after the incident despite the fact that the police were present at the door-step and had arranged a vehicle to take the injured to the hospital. Wife, brother-in-law and mother of the deceased were allegedly naming the assailants at that time i.e (around 2:00 a.m.) yet, they chose to wait to lodge the FIR. This gives rise to a serious doubt whether PW-1 and PW-2 at all witnessed the incident and generates a probability that they reached the place of occurrence later.

5. The prosecution explained the delay by stating that Complainant's brother did not know the whole incident and therefore his sister lodged the FIR. Whereas, in his examination-in-chief, the said brother claimed he witnessed the incident and identified the assailants.

In view of the above, the Division Bench remarked,

"A conspectus of the evidence noticed above indicates that the FIR in the present case was lodged with an 'unreasonable delay' and after deliberation."

Reliance was placed on Satpal Singh v. State of Haryana, (2010) 8 SCC 714, where the Supreme Court held,

"Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultation, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same of the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety."

Other reasons cited by the Court for returning a finding of acquittal:

• There are two sets of accused who are completely unrelated to each other and the prosecution has not explained why would they join hands to finish off the deceased.
• The possibility of the FIR being lodged on the basis of guess-work gets credence from the circumstance that two sets of accused who had no link with each other were made accused in this case.
• There is no dispute regarding the enmity between the deceased and appellants Indrajit Mishra and Sanjit Mishra on account of a property dispute. It thus appears to us that the appellants Indrajit Mishra and Sanjit Mishra were roped in as accused due to an inimical relationship between the parties.
• Material contradictions in the testimony of witnesses, indicating that they did not see the incident occur.
• With regard to the arrival of police at the place of occurrence, there is discrepancy between the testimony of Complainant, her brother and the sub-Inspector.
• Complainant claimed that she was sleeping in the room and she saw the entire sequence of events unfolding in front of her but there is no evidence to show that she as a wife of the deceased made any attempt to take her husband out of the clutches of the accused-appellants and in the process sustained injury. No doubt each person reacts differently in a given situation but if she had intervened, her conduct may have lend credence to her story.
• Complainant and her brother had no blood-stained closthes to offer during investigation and from their testimony it appears that they did not touch the body of Pratap Shankar Mishra after the incident. This conduct appears unnatural and casts a doubt on their presence at the time and place of occurrence.
• As per the post-mortem report, there was no injury on the body of the deceased caused by a hockey stick or a knife.

"On the basis of the facts and circumstances discussed above, an inference can easily be drawn that this is a case of blind murder, no one actually witnessed the incident and the FIR was lodged on the basis of guess-work and suspicion and the 45 appellants have been implicated on account of suspicion because of the previous enmity. Even the possibility of the FIR being ante-timed cannot be ruled out," the Court said while acquitting the accused.

Case Title: Mukesh Tiwari v. State of UP

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