Dipak Misra, J.
1. Almost four centuries back it was proclaimed with an intense dramatic overtone by one of the centripodal characters of Websterian tragedy :
'on pain of death do not name death to me it is a word infinitely terrible'
If we further travel in the time machine and penetrate deeper into the ancient sayings one would come across a sensitive observation, an unforgettable one, leaving an unfailing impact on the mind :
'Chita, chinta dwayoormadhya, Chinta tatra gariyasi, Chita dahati nirjivam Chinta dahati Sajeevakam'
2. We have said so in the beginning because it was in a way imperative and exigent to say so as we are obligated at this juncture to deal with the reference made by the learned Additional Sessions Judge, Panna in Sessions Trial No. 30/98 for confirmation of death sentence imposed on the accused, namely, Jangvali Singh and Rohini and further to deal with the appeals on merits preferred at their instance. Before we advert to cogitate on the factual depiction that has given rise to the reference and appeals it is necessitous to state at the beginning that a rumination into the past is absolutely inevitable. The reference in question and appeals were dealt with by a Division Bench of this Court and by judgment dated 18-1-2000 this Court gave the stamp of approval to the finding recorded by the learned Trial Judge in regard to the guilt of the accused. As far as the sentence is concerned the accused persons who suffered death sentence were allowed to suffer life imprisonment under Section 302 of the Indian Penal Code (in short the 'IPC') and to suffer other sentences. Their conviction and sentence under Sections 394, 397, 120 and 201 was maintained and they were directed to undergo the sentence imposed in respect of the aforesaid offences. As far as the other co-accused, Salim Khan, is concerned the Division Bench maintained his conviction under Section 411 of the IPC but reduced the substantial sentence to the period already undergone and enhanced the sentence of fine to rupees ten thousand, in default, to suffer rigorous imprisonment of ten months.
3. Jangvali Singh and Rohini being dissatisfied with the affirmation of the judgment of conviction and imposition of sentence of suffering rigorous imprisonment for life knocked at the doors of the Apex Court and the Apex Court in Criminal Appeal No. 119420/2001 passed the following order :---
'Heard the learned Counsel for the appellants and the Counsel appearing for the State of Madhya Pradesh. While issuing notice the Court had indicated that the State should indicate reasons as to why matter should not be remitted to the High Court for re-disposal of the appeal, as it was found that the High Court as the Court of Appeal has not discussed the evidence on record except stating that the reasons indicated by the learned Sessions Judge are appropriate. When an appeal is preferred against a judgment of conviction and sentence, the Appellate Court is duty bound to re-appreciate the evidence and form its own conclusion on the reliability of the evidence on which the prosecution case hinges. A bare perusal of the impugned judgment would indicate that the High Court has failed to discharge the same obligation. In the circumstances, we set aside the impugned judgment of the High Court and remit the matter to the High Court for re-disposal of the Criminal Appeal in accordance with law.'
4. Under these circumstances the reference as well as the appeals have been listed again for hearing. We may at the outset state that the judgment has been set aside by the Apex Court. The matter, as submitted by the learned Counsel for the State is wide open. Hence, we proceed to deal with the reference and the appeals as the whole scenario projects and frescoes a picture of essential 'tabla rasa'.
5. Presently we shall proceed to state the factual score. The accused Jangvali, Rohini and Salim stood charged for commission of offences punishable under Sections 302/34, 302/120B, 302/397 and 307/34 of the IPC. The prosecution case in brief is that deceased Ramswaroop Shivhare was the brother-in-law of deceased Bhagirath. Ramswaroop and Bharatlal (P.W. 1) belong to Chhatarpur. Son of Bharatlal (P.W.5), also knew the deceased Ramswaroop. Bharat Soni owned a cloth shop to which Ramswaroop was a constant visitor in the capacity of a purchaser. The in- laws' house of Bhagirath was at Chhatarpur and his mother-in-law is one Meera Rai. On a day prior to the occurrence at about 6 to 7 P.M. Bhagirath reached with Rohini and Jangvali Singh at Chhatarpur and intimated that persons accompanied him were his friends. He alongwith accused, Jangvali, Rohini and deceased Ramswaroop stayed at the residence of Meera Rai. On the next day morning Bhagirath and his brother-in-law left about 11 a.m., came back with a motorcycle and informed that they were proceeding to purchase some grains. The accused persons also left with them. Deceased Ramswaroop informed Bhagirath that he was scheduled to go to Sahanagar for purchase of grain. On being so told, Bhagirath expressed that he had also to purchase cloth from Katni. Bharat accompanied the deceased persons to the bus-stand. He was carrying rupees fifty thousand (Rs. 50,000/-) with him and gave it to Ramswaroop and took rupees forty thousand (Rs. 40,000/-) and kept it in the dicky of the motorcycle. Five persons, namely, Bhagirath, Ramswaroop, Jangvali, Rohini and Bharal came towards Panna where the deceased Bhagirath informed his brother Naresh that they were proceeding to Sahanagar for purchase of grains. On the way the whole group got down at Khamaria bus-stand for the purpose of having tea and there they met Vinod Shivhare. As the evening was beginning to set in, Rohini and Jangvali stated that the others should stay back in their house. Being so suggested they went to the hut of Rohini. In the night, Bhagirath, Ramswaroop and Bharat stayed outside in the field where pulses had grown. They set fire to keep themselves warm. At that juncture, Jangvali came wrapped himself in a shawl alongwith accused Rohini. As alleged Rohini gave a lathi blow on the head of Bharat as a result of which he fell down. Thereafter Rohini inflicted an axe blow on the neck region of Ramswaroop. Jangvali was armed with a knife. Both of them assaulted Bhagirath and Ramswaroop with axe and knife and murdered them. As putforth, Salim in Kurta Pyjama arrived at the spot and accused Jangvali and Rohini removed the amount from the dicky of the motor-cycle. They also removed the underwear and ring from Bhagirath and Ramswaroop.
6. As the prosecution story proceeds, Bharatlal took to his heels and on the next day, i.e., 24-2-1998 at about 5:30 P.M. lodged an FIR at the Sahnagar Police Station which was 3 kms. away. On the basis of the aforesaid FIR Crime No. 24/98 was registered for offences punishable under Sections 302/34 and 397 of the Indian Penal Code by H.R. Pandey, Officer-in-Charge of the Police Station (P.W. 15) and 'merg' intimation No. P-2 was also registered. The Officer-in-Charge reached the spot, prepared the spot map and the 'panchnama' of the dead bodies of the deceased and sent the dead bodies for the post-mortem. On 24-2- 98, Bharatlal was sent for medical examination which was done by Dr. G.L. Verma (P.W. 13), who found certain injuries on his body. The said doctor conducted the post-mortem on the dead bodies of Ramswaroop and Bhagirath. The Officer-in-charge of Shahnagar Police Station arrested Jangvali, Rohini and Salim Khan on 16-3-1998 and at their instance seized the axe, trousers, shirts and banyan as per Exhibit P-24 and further seized Rs. 55,000/- as per Ex. P-25. This seizure was effected from Jangvali. As far as Rohini is concerned Rs. 20,000/- and a citizen watch were seized. From Salim there was seizure of Rs. 10,000/- and a lathi as per Ex. P-28. There arc further seizure from Jangvali and Rohini as per Exhibits P-21 and P-22, respectively. The seized articles vide letter P-36 were sent to Forensic Laboratory, Sagar for appropriate examination. The competent authority of the Forensic Laboratory, Sagar submitted his report vide Ex. P-37 which showed that blood stains are noticeable on the knife and other weapons. It is pertinent to state here that these weapons were sent to Calcutta for serological study but the report could not be given about the blood stains. However it was opined that blood stains in some articles belonged to human being. An investigation was also made by the prosecution to find out that Bharat Soni had taken out Rs. 70,000/- from his bank for purchasing grains and the said sum was withdrawn by Rajendra Soni on 6-4-98. The pass book was seized as per P-18. The prosecution after investigation filed the charge-sheet before the Committal Court which in turn committed the matter to the Court of Session and eventually the matter was tried by the learned Additional Sessions Judge, Panna.
7. The accused persons abjured their guilt. The plea taken by Jangvali and Rohini was that one month prior to the date of occurrence Bharatlal soni had engaged them on the labour basis for doing some digging work and while they were digging 1/2 kg. gold was found. On the date of occurrence alongwith Bharatlal Soni three other persons had come and dug the earth and also found some gold. There was some altercation in regard to the distribution of the gold among Bharatlal Soni and his companions and eventually Bharatlal Soni and his companions murdered the other two and ran away with the gold. It was putforth that a report to that extent was lodged by the wife of Rohini. The accused Salim took the plea that he was working under Sarpanch and when he asked for money he had been falsely implicated.
8. The prosecution in furtherance of its case examined as many as 18 witnesses. Bharallal Soni (P.W. 1), is the real star witness, P.W. 2 is Daulatram Shivhare, P.W. 3 is Vinod Kumar shivhare who has been declared hostile, P.W. 4 is K.C. Jain, the then cashier of Allahabad Bank, Rajendra Soni (P.W. 5) is the son of Bharal Soni, Smt. Meera Rai (P.W. 6), is the mother-in-law of Bhagirath, P.W. 7 is Jai Prakash Shivhare is a witness to the seizure, P.W. 8 and P.W. 9 are other witnesses to seizure, Rukmani Bai (P.W. 10), is the wife of the deceased, Ramswaroop, Naresh Shivhare (P.W. 11) is the brother of Bhagirath, Swami Prasad (P.W. 12) is the father of Ramswaroop, P.W. 13 is Dr. G.L. Verma who had examined Bharat Soni and also conducted the post- mortem on the bodies of the deceased, P.W. 14 is R.K. Mehrova, who was the Manager of the Allahabad Bank, H.R. Pandey (P.W. 15) was the officer-in-charge of the Sahnagar Police Station, P.W. 16 is Ganesh Prasad Thapak, the A.S.I. who had conducted a part of investigation, Bal Bhagwan Pandey (P.W. 17) was another officer- in-charge of the Sahnagar Police Station on 1-5-1998 and P.W. 18 is Rajendra Prasad, a formal witness.
9. The learned Trial Judge on consideration of the material brought on record found that the testimony of the eye witness, Bharat Lal Soni, P.W. 1, is totally credible and unimpeachable and can be placed reliance upon to convict the accused, Jangvali and Rohini. The other accused was found guilty as has been stated earlier under Section 411 of the IPC as some stolen currency notes were recovered and seized from him. The learned Trial Judge found that there was corroboration establishing the crime 'inasmuch as the accused were last seen together when they dined at the house of Mira Bai (P.W. 6). The Court below also accepted the evidence of seizure stolen cash amount and the articles on the information given by the accused persons. The learned Additional Sessions Judge, however, expressed the view that there was no evidence involving Salim Khan in the commission of the crime of murder of the two deceased persons and accordingly he only found him guilty of the offence punishable under Section 411, IPC. Itis worth noting here that the Court below ascribed reasons for imposing death penalty on the two accused persons. He has expressed the view that there was systematic planning to rob all valuables of the deceased persons; there was pretext of help; the crime was brutal in nature and the circumstances warranted imposition of sentence which was to be exemplary and deterrent.
10. At this juncture we think it condign to state that Mr. S.C. Datt, learned Senior Counsel who had argued the matter on earlier occasion informed the Court that he had no instructions after the matter has been remanded. Eventually, this Court appointed Mr. S.C. Datt as amicus curiae. Thus, we have heard Mr. S.C. Datt, learned Senior Counsel, the friend of the Court, and Mr. Ajay Mishra, learned Deputy Advocate General for the State.
11. Assailing the judgment of conviction and order of sentence the learned Senior Counsel has raised the following contentions:--
(i) The crime relating to murder when exposits a cruel scenario and is a revolting one, more circumspection, greater probing and dispassionate scrutiny of the facts and law are essential.
(ii) The moral conviction stand on a different footing than the legal proof and there is a sea of difference between the words 'may' and 'must' and hence, unless there is proof beyond reasonable doubt and beyond total reproach a conviction, a legal one, should not be recorded.
(iii) The evidence of Bharat Lal Soni (P.W. 1), which has been placed reliance upon by the learned Trial Judge does not deserve acceptance for many a reason the importance and significance of which by no means can be marginalised. Elaborating the aforesaid contention the learned Senior Counsel has submitted that the incident had taken place in the intervening night of 23rd/24th of February, 1998 but no report was lodged till 5.30 p.m. On 24-2-98 and such delay in lodging the report creates a dent in the prosecution version compelling the rational mind not to accept the same.
(iv) The conduct of P.W. 1 if scrutinized in proper perspective would go a long way to show that there had not only been delay but also deliberation and consultation. That apart, the manner in which Bharat Lal Soni reacted is not acceptable under natural circumstances and when such unnaturalness gets intrinsically woven around the deposition of the witness the same is to be thrown overboard.
(v) There has been non-compliance of Section 157 of the Cr.PC inasmuch as there is no evidence that the copy of the FIR was forwarded from the Police Station and there is also no evidence that if it was sent, at what point of time it was transmitted and when it reached the Court of the learned Magistrate. Merely saying that it was sent is not sufficient and such a statement alone would not meet the requirement of the aforesaid sacrosanct provision.
(vi) In the inquest report prepared under Section 174 of the Cr.PC. While requisitioning for the post mortem there is no whisper of the incident or the names of the accused persons. These circumstances cast a doubt with regard to involvement of the accused persons in the crime in question. Bharat Lal Soni (P.W. 1), was present at the time of inquest as well in the requisition to the post mortem (Exhibits P-30 and P-31), but there is total silence with regard to his presence and there is no whisper of the names of the accused persons though there is mention of the words 'Abhi Tak Ki vivechana Se Paya Gaya' (as has been found in the inquiry till this time).
(vii) Non mention of the details in the inquest report may not be fatal in all case but in the case at hand it is a situation that weighs in favour of the accused. In certain circumstances the absence of accused persons in the inquest report has its signification and the present case is such a one.
(viii) In the present case seizures made under Section 27 of the Evidence Act require penetrating scrutiny as the intrinsic fallacies in such seizures can not be overlooked. Reference has been made to Exhibits P-19 and P-21 the seizure memos from the accused Jangvali. The other seizure memo is Exhibit P-25 at the instance of Jangvali, The first two seizure memos were made at Bhosarhar near the field of Radheshyam Brijpuriya on the bank of 'Aloni' River and the second seizure was from the house of Jangvali. Reference has also been made to Exhibits P-20, P-22 and P-24 the memoranda of seizure from Rohini Singh. Criticising the seizures it is contended that the same are based on total falsehood inasmuch as the accused persons had surrendered before the Police Officers and there is nothing on record to show that the accused persons had been searched. The police had arrested the accused persons on 16-3-98 sleeping in the field and no witness from the village has been examined.
(ix) The witness Jai Prakash Shivhare (P.W. 7), is from Panna and no explanation has been offered how this witness was available at the spot.
(x) The memoranda do not bear the signatures of the accused persons. When there is no signature or thumb impression of the accused, the statements rendered by them are totally unreliable.
(xi) In the case at hand out of two 'panch' witnesses only one has been examined and other one has not been examined. The memoranda of panchas can not be equated with evidence and they can only be used by the persons who had signed or prepared them under Section 159 of the Evidence Act. Any statement attributed to the accused as leading to discovery must be proved by witness like any other fact.
(xii) As far as seizure memo Exhibit P-25 is concerned itis allegedly from the house of Jangvali. The evidence of P.W. 7 completely destroys the case of the prosecution. As per prosecution version the accused Jangvali and Rohini were arrested vide Exhibit P-32 alongwith currency notes which were also seized. If the search would have been actually made the key might have been found from his person.
(xiii) It is noticeable that in the arrest memo (Exhibit P-32) there is no signature of Shri H.R. Pandey, the Investigating Officer though his name has been mentioned.
(xiv) The other seizure memo, namely, Exhibit P-26, is to be discarded inasmuch as no witness has been examined from the village of the accused No. 2 and no independent witness has also been examined by the prosecution and the alleged things have been seized from the open place.
12. At this juncture we may separately note another significant submission of Mr. Datt that if the submissions putforth for recording the order of acquittal are not accepted the imposition of death sentence in the present case is unwarrantable as the incident had taken place on 24-2-98 and almost five years have elapsed. The factual backdrop as has been exposited by the prosecution in its version does not make it one of the rarest of rare cases calling for capital punishment. The principles laid, down by the Apex Court in various decisions do not make it inevitable to put an end to the life spark of the accused persons.
13. Mr. A.K. Mishra, learned Deputy Advocate General for the State, sounding a contra note, advanced the following contentions:--
(a) The delay in lodging the FIR has been properly explained and such an explanation being reasonable and acceptable no exception should be taken to the same.
(b) Submission in regard to non-compliance of Section 157, Cr.PC is contrary to evidence and even otherwise the non- compliance does not wholly or entirely discredit the prosecution case.
(c) The ground urged in regard to defective investigation can not be made foundation for acquittal. However, despite such defects the prosecution has been able to prove its case beyond reasonable doubt against the accused persons.
(d) The testimony of the eye witness can not be rejected lightly and injuries sustained by the said witness alone would make the fact clear that he was present at the time of occurrence.
(e) The criticism levelled in regard to discovery made under Section 27 of the Evidence Act is totally untenable as corresponding recoveries have been effected by the Investigating Agency. The defects which have been pointed out are of no significance and do not have the impact on the prosecution case, nor do they have the force to destroy the basic fabric of the version of the prosecution.
(f) The contention relating to non mention of the names of the assailants in the inquest report is not a legal requirement and such an omission is totally inconsequential and does not affect the veracity, credibility and worthiness of the case of the prosecution.
14. The learned Counsel for the parties have cited catena of decisions to bolster and buttress their respective submissions but we will be referring to a few which we find necessitous and imperative to do so. We think it seemly to clarify at this juncture that though we have put the submissions of the learned Counsel for the parties in separate compartments we will not advert to them in exclusive separateness as certain submissions do overlap each other.
15. Before we proceed to advert to the contentions which are woven around the factual score, we think it necessary, as the context commands, to refer to certain citations about the instinctive reaction in contradistinction to judicial scrutiny. In the case of Kashmira Singh v. Stale of Madhya Pradesh, AIR 1952 SC 159, the Apex Court held thus :--
'Where the murder committed is a particularly cruel and revolting one, it is necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime might induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law.'
16. In the case of Sharad Birdhi Chand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Their Lordships expressed the view as under:--
'A moral conviction, however, strong or genuine can not amount to a legal conviction supportable in law ...... It must be realized that the well established rule of criminal justice is that 'fouler the crime higher the proof.'
17. In the case of Sarwan Singh Bhan Singh v. State of Punjab, AIR 1957 SC 637, the Apex Court held as under :--
'It is no doubt a matter of regret that a foul cold- blooded and cruel murder like the present should go unpunished. I may be as Mr. Gopal Singh strenuously urged for us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence.'
18. In the case of Chandra @ Surandran and Anr. v. State of Kerala, AIR 1990 SC 2148, Their Lordships have held as under :--
'13....... The fact that these two murders which are cruel and revolting had been perpetrated in a very shocking nature should not be allowed in any way to influence the mind of the Court while examining the alleged involvement of the appellants. It is worthwhile to recall an observation of this Court in Datar Singh v. State of Punjab, (1975) 4 SCC 272 : (AIR 1974 SC 1193) articulating that 'Courts of justice can not be swayed by sentiment or prejudice against a person accused of the very reprehensible crime.....'
19. Keeping the aforesaid principle in view. We shall now proceed to deal with the various contentions, the first one being delay in lodging of the FIR. Before we proceed to advert to the factual matrix of the present case it is appropriate to notice certain decision in the field. In the case of Thulia Kali v. State of Tamil Nadu, (1972) 3 SCC 393, the Apex Court held as under :--
'First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment Which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained.'
20. In this context we may refer with profit to the decision rendered in the case of Meharaj Singh v. State of U.P., (1994) 5 SCC 188, wherein Their Lordships expressed the view as under:--
'12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye-witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story......'
21. In the case of Thanedar Singh v. State of M.P., (2002) 1 SCC 487, Their Lordships reiterated the aforesaid principles.
22. In the case of Bijoy Singh and Anr. v. State of Bihar, 2002 AIR SCW 1873, in Paragraph 6 Their Lordships expressed the view as under:--
'6. This Court in LINK. Meharaj Singh v. State of U.P., 1995 Criminal Law Journal 457 held that FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eye-witnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought,'
23. Keeping the aforesaid enunciation of the law in view we are to scrutinise whether there has been real delay in lodging the FIR or whether that creates a dent in the prosecution version. The FIR has been exhibited as Ex. P-1. The author of the FIR is Bharatlal Soni who has been examined as P.W. 1. According to this witness after he left the place of occurrence he reached Shahnagar after 3 to 4 hours. It has come in his deposition that he spent two hours in Shahnagar and thereafter proceeded to Panna. He travelled to Panna in a bus. He has admitted that though he stayed for two hours in Shahnagar he did not report at the police station. It has been elicited from him that he left Shahnagar and crossed the Police Sub-station at Tikaria and Police Station of Pavai but he chose not to report at the said police stations and proceeded to Panna. According to his testimony he reached Panna at 12 noon. He informed about the incident to Naresh (P.W. 11) and thereafter to Daulatram (P.W. 2). According to him after deliberating with these persons he lodged the FIR at Shahnagar at 5:30 p.m. From the aforesaid narration of the factual score it is graphically clear that there has been delay in lodging the FIR. The question that really falls for adjudication is whether such a delay creates a concavity and doubt in the prosecution version or delay, under the obtaining factual matrix, does not affect the case putforth by the prosecution. With regard to the delay in lodging the FIR it is contended by Mr. Mishra that apprehension and fear of brutal crime and the human tendency and personal safety are certain factors to be taken into consideration while taking note of delay in filing of the FIR. He has referred to three concepts, namely, fight, fright and flight and the impact of them on the normal human conduct. It is also putforth by him that the conduct of witness of this nature should not be adjudged by idealistic parameters.
24. In this context we think it appropriate to refer to a recent decision of the Apex Court rendered in the case of Raghunath v. Stale of Haryana and Anr. , (2003) 1 SCC 398. In the aforesaid case the Apex Court adverted to the facet of delay in lodging of FIR. In that case the complainant crossed two Police Stations on the way but did not lodge an FIR. Keeping the factual context in view Their Lordships observed as under:--
'It is also unusual that though two police stations fell on the way from the village, in which the occurrence had taken place, to the hospital, but the complainant did not slop at the two police stations and proceeded straight to General Hospital. In the ordinary circumstances, it is quite imperative that the complainant party could have stopped at the police station, sought necessary help from the police station and also given first-hand information to the police. The injuries suffered by the complainant party were simple in nature except that of the deceased. Therefore, there are no mitigating circumstances for not reporting to. the police station at the first hour especially when the police stations arc on the way to General Hospital.'
In the case at hand we have X-rayed the evidence in the minutest manner and, it becomes quite vivid that the informant Bharat Lal Soni had crossed two police stations and one sub-police station and he had ample time with him but did not bother to take steps to lodge an FIR. In our considered view this action is not only contrary to normal human conduct but also creates a dent in the prosecution story. If we permit ourselves to say so, there is no escape from arriving at such a conclusion.
25. Presently, we shall proceed to deal with the other contention of the learned Senior Counsel relating to despatch of the FIR to the Court. Itis submitted by Mr. Datt, that the non- compliance of Section 157 of the Code creates immense suspicion as far as the depiction of the prosecution version is concerned. In this context the learned amicus curiae has commended us to certain decisions and we think it seemly to notice a few of them. In the case of State of Punjab v. Trilok Singh, AIR 1971 SC 1221, the Apex Court held as under:--
'5. First, the High Court noticed the suspicion created by the circumstances that the copy of the First Information Report purported to have been lodged at 3:45 p.m. did not reach the Magistrate at Dasuya till 8 a.m. the next day, even though it was sent through a special messenger. The distance between the scene of occurrence and Dasuya was only 15 or 16 miles. The inference sought to be drawn is that, in fact, the report was not lodged at 3:45 p.m., but at a much later hour, after the police had arrived at the scene of occurrence and there were consultations to decide what version should be put forward and who should be implicated for the murder. The prosecution, in fact, made no attempt to explain this delay. Such delay, thus, cast doubt on the prosecution version that the report was lodged at 3:45 p.m. without lapse of unnecessary time.'
26. In the case of Ishwar Singh v. The State of Uttar Pradesh, AIR 1976 SC 2423, in Paragraph 5 Their Lordships noted the submissions of the learned Counsel appearing for the appellant in regard to the non-compliance of the Section 157 of the Code and in a way accepted its signification. In the case of Bir Singh and Ors. v. The State of Uttar Pradesh, AIR 1978 SC 59, the Apex Court expressed the view as under:--
'11....... The High Court indulged in another conjecture that the FIR must have been sent to the P.P. and to the Elaqa Magistrate. This was not however a matter of which judicial notice could be taken but had to be proved like any other fact. There was absolutely no evidence led by the prosecution to show when the FIR was sent to the Elaqa Magistrate or to the P.Ps. office and in the absence of any evidence on this point the High Court was not justified in drawing an inference in order to demolish the positive and categorical statement of Umesh Chandra Verma (P.W. 5), the Investigating Officer.'
27. In the case of Arjun Marik v. State of Bihar, (1994) 2 JT 627 SC, the importance of sending of the FIR to the Court of Magistrate in compliance of Section 157 of the Code was dealt with and its significance was emphasised.
28. In this context we may profitably refer to the case of Meharaj Singh (supra), wherein the Apex Court, as has been indicated hereinbefore, while dealing with the delay in lodging the FIR also dealt with compliance of the provision of Section 157 of the Code and in that context held thus:--
'...... With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the Courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the Local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the Local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR alongwith the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174, Cr.PC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to he recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by P.W. 8.'
29. At this juncture we may usefully refer to the decision rendered in the case of Surender Pratap v. Ram Naik and Ors., AIR 2001 SC 164, wherein Their Lordships of the Apex Court ruled thus:--
'14. Ordinarily, Ram Bharose would have rushed to the police station and narrated the incident orally to the constable Mohrrir for the purpose of recording the FIR. However, a written report prepared by Shriram Yadav was taken to the police station. It is surprising that the written report carried by Ram Bharose and delivered at the police station has not been exhibited. Shriram Yadav, the scribe of the report, has also not been examined. According to Sheikh Faikoo (P.W. 6) there was only one FIR, the one in question, lodged at the P.S. on that day. The General Diary in which the FIR was recorded was thus open and so available for the whole day. No record has been produced to show when the copy of the FIR was dispatched to the jurisdiction Magistrate in compliance with Section 157, Cr.PC. We are not recording any finding that the FIR in the case was made belatedly and then ante-timed; we are only pointing out a few likely holes left unplucked by the prosecution and hence, perceptible in the facts and circumstances of the case at hand.'
30. In The case Jang Singh and Ors. v. Slate of Rajasthan, (2001) 9 SCC 704, Their Lordships while dealing with the delay in forwarding the FIR to the Magistrate, in the absence of any explanation, came to hold that the delay was unacceptable. While dealing with this facet we may usefully refer to the decision rendered in the case of State of Rajasthan v. Teja Singh and Ors., (2001) 3 SCC 147, wherein the Apex Court ruled thus :--
'As a matter of fact, the explanation putforth by the learned Counsel in regard to the delay in the FIR reaching the Court is not tenable because assuming that there were some Court holidays that can not be a ground for the delay in the FIR reaching the Magistrate, because requirement of law is that the FIR should reach the Magistrate concerned without any undue delay. We are of the opinion, that the explanation given by the prosecution regarding the delay in the FIR reaching the Magistrate is neither convincible nor acceptable.'
31. In the case Jang Singh (supra), the Apex Court held that the delay of three days in forwarding the FIR to the Magistrate without explanation in that regard is fatal.
32. Recently in the case of Thanedar Singh (supra), Their Lordships referred to the case of Mehraj Singh (supra), and expressed the view that no broad proposition can be said to have enunciated in the case of Shiv Ram v. State of U.P., that inordinate and unexplained delay in sending the FIR to the Magistrate would be an immaterial factor liable to be ignored altogether.
33. In this context we may refer to a decision with profit rendered in the case of Rambhagat v. The State of Madhya Pradesh (Cr. A. No. 222/95) wherein the Division Bench of this Court in Paragraph 31 held as under :--
'In this regard it has to be seen that the prosecuting agency has failed to adduce any evidence as to when a copy of the FIR was sent to the Judicial Magistrate in compliance with the provisions contained in Section 157, Cr.PC. It is also noteworthy that when the death inquest was conducted, in the morning on 29-10-93, there is absolutely no mention in the said memos (Exs. P-5, P-6 and P-7) regarding the said offences having been committed by either of the accused. In other words the gist of the FIR does not get rellected in the said memos prepared under the provisions contained in Section 174, Cr.PC. Further in the requisitions sent for performing post-mortem examination on the dead body, there is absolutely no reflection of the gist of FIR alleged to have been lodged in the night at 11:30 p.m. on 28-10-93. Thus the FIR in the present case does not pass the three external tests or checks as have been enumerated in the authority reported in the Judgment Today 1994 3rd Vol. SC Page 440 (Mehrajsingh v. State of U.P.).'
The Division Bench has also taken note of the fact that no evidence was adduced when copy of the FIR was sent to the Judicial Magistrate as required under Section 157 of the Code. We shall deal with the facet relating to inquest report while dealing with the aforesaid contention advanced by the learned Counsel for the appellants. At present we confine ourselves to the contentions pertaining to non-compliance of Section 157 of the Code.
34. From the aforesaid pronouncement of law it is quite clear that compliance of Section 157 of the Code has its own significance. If there is delay in forwarding the FIR to the Magistrate a reasonable explanation has to be offered. Their Lordships held that this act of forwarding is a check to smother any kind of doubt and suspicion in lodging of a FIR. As we have indicated earlier both the facets are required to be dealt with together.
35. In the case at hand there is no mention in the FIR when it was sent to the Court of the Magistrate. On a perusal of the evidence H.R. Pandey (P. W. 15), the Investigating Officer, it is perceptible from the Paragraph 20 of the cross-examination that he has not sent the copy to the Magistrate. He has admitted in Paragraph 22 that sending of the FIR is the responsibility of the Head Constable. He has denied that the Head Constable did send the FIR but there is no mention of the number of sending of the FIR. On a scrutiny of the total evidence it is not discernible that the FIR was sent from the police station. Though there is some material on record that the FIR was forwarded to the learned Magistrate but it is not discernible on what date it was sent. In the absence of any positive evidence in that regard it is unsafe to hold that FIR was sent in proper time. It is to be borne in mind that the sending of FIR at the earliest point of time is of immense signification. There is no evidence when it reached the Magistrate. Thus, it is crystal clear that there has been non-compliance of Section 157 of the Code. Combatting the aforesaid factum it is vehemently contended by Mr. A.K. Mishra, learned Deputy Advocate General that mere faulty investigation or defecting investigation can not mar or destroy otherwise truthful and proven version of the prosecution story. To bolster the aforesaid submission he has placed reliance on number of decisions. Similarly the learned Counsel for the State has also contended that the delay in lodging the FIR can not always be a factor to discredit the version of the prosecution.
36. In this context it is also noticeable that the investigating officer deposed that he had written the FIR in his own hand writing. As has been indicated hereinbefore, it is in his deposition that he had admitted that the Head Constable had written the same. The Head Constable has not been examined. Non-examination of Head Constable creates a suspicion. Despatch register has also not been exhibited.
37. We have referred to the decisions in the field as the Apex Court held that inordinate delay and unexplained delay in lodging the FIR and sending the same to the Magistrate can not be regarded as immaterial factor liable to be ignored altogether. In the case at hand both things exist. There has been delay in lodging the FIR and there has been no evidence on record when the FIR was sent to the learned Magistrate. No explanation has been offered for non-compliance of Section 157 of the Code. Ordinarily these facts might not have been the destroying factor of the prosecution case but, a significant one, while dealing with other aspects, in our considered opinion, the same garner immense signification. How they gain significance we will be deliberating later on, while dealing with the other submissions of the learned Counsel for the appellants, more particularly, the submission relating to acceptability and credit worthiness of P.W. 1.
38. It is next contended by Mr. Datt that in the inquest report sent under Section 174 of the Code requisitioning for post-mortem there is no whisper of with regard to the accused persons. The learned Counsel has referred to the notice sent to the witnesses vide Ex. P-4 to attend the inquest. A free translation of the notice is to the effect is that the witnesses were required to attend the inquest and to give appropriate reply. Bharat Soni, the singular eye-witness (P.W. 1) was present at the time of inquest yet in the inquest as well as in the post-mortem reports (Exs. P-30 and P-31) there is total silence in this regard. There is no mention of the accused persons though there is mention of the factum what has been gathered by the investigating agency by that time.
39. In this context we may profitably refer to the decision rendered in the case at Baleshwar Mandal and Anr. v. State of Bihar, AIR 1997 SC 3471, wherein Their Lordships expressed the view as under:--
'Lastly, it was urged that in the inquest report, prepared by the Investigating Officer after the Fardbayan was recorded, the names of the accused persons were not mentioned therein and, as such, it shows that the time when the inquest report was prepared it was not known as to who were the accused persons and the Fardbayan was drawn up later on at the instance of the prosecution witnesses in which the accused were falsely implicated. This argument was neither raised during the trial nor before the High Court. The inquest report prepared by the Investigating Officer finds place in the paper book at page 47. This inquest report indicates the injuries found on the dead body of the deceased duly witnessed by two witnesses. There is no column in the said inquest report against which the Investigating Officer, is required to mention the names of accused. It may be the said report is not complete documents. It is, therefore, not safe to entertain this argument in this appeal specially when no such argument was advanced during the trial or before the High Court. We accordingly refrain ourselves from going into this question raised for the first time in this appeal.'
40. It is submitted by Mr. A.K. Mishra, learned Deputy Advocate General for the State that non-mentioning of the names in the inquest report does not affect the prosecution case as that is not the statutory requirement. Mr. A.K. Mishra has contended that non-mentioning of the names in the inquest report does not create any dent in the prosecution case. He has referred to the decisions rendered in the cases of Podda Narayana and Ors. v. State of Andhra Pradesh, AIR 1975 SC 1252, to highlight the concept that the scope of proceedings under Section 174 of the Code of Criminal Procedure is very limited. He has also placed reliance on the decision rendered in the case of Ram Sanjiwan Singh and Ors. v. Stale of Bihar, AIR 1996 SC 3265 to show that no column has been prescribed. Learned Counsel for the State has also submitted that non-mentioning is not vital.
41. We are conscious that non-mentioning of the names in the inquest would not ordinarily affect the prosecution story but if it is appreciated cumulatively with other matters it has to be given some weightage. The importance of the aforesaid facet is to be seen depending if any thing is provided in the column. We may also repeat at the cost of repetition that non-mentioning in the inquest report is neither fatal nor does it destroy the quintessential aspect of the prosecution story. But when it is appreciated in regard to delay in lodging the FIR and forwarding the same to the Court of the learned Magistrate it gathers significance and it can not be brushed aside as mere defective investigation.
42. Presently we shall proceed to deal with regard to the factum of memoranda of seizure that have been effected under Section 27 of the Indian Evidence Act. First seizure memorandum is Ex. P-19 which has been recorded on 16-3-1998 at 10 a.m. Ex. P-21 is the seizure memorandum of Jangvali which was recorded on the same day at 11:30 from Bhosarhar near the field of Radheshyam. There was seizure of Rs. 6,000/- from his pocket and one wollen shawl. Ex. P-25 is the seizure memo dated 16-3-98 of Rs. 55,000/- from a room of the house of Jangvali. Ex. P-20 is the memorandum of accused Rohini recorded on 16-3-98 at about 10:30 a.m. Other seizure memoranda are Ex. P-22, P-23, P-24 and P-26. Mr. Datt, learned Senior Counsel challenging the memoranda of seizure has contended that the whole thing is completely false. He has assailed the same on the score that the accused persons had surrendered to the police officer but as per the evidence of the P.W. 15 they were arrested on 16-3-1998 while sleeping in the field but no witness from the village was examined indicating that they had been arrested from the field. It is also putforth by him that there is material on record to show how Jay Prakash (P.W. 7) is an interesting witness or partisan witness. Though the aforesaid submission was tried to be built up by Mr. Datt but the same was vehemently opposed by Mr. A.K. Mishra, learned Dy. Advocate General. Mr. Mishra has cited a series of decisions to show Section 27 of the Evidence Act gets attracted even though the accused persons are not formally arrested. In our considered opinion the aforesaid aspect need not be adverted to in the present case inasmuch it does not improve the case of the defence. There is no evidence though the accused persons were not arrested they were not with the investigating officer. We need not to delve into the debate whether it tantamounts to custody or not. In our considered view the submission of Mr. Datt has no substance.
43. It is next contended by Mr. Datt that the memoranda do not bear the signatures of the accused persons. It is also urged by him that there is no thumb impression also. In this context it is relevant to refer to the decision rendered in the case of Jackaran Singh v. State of Punjab, AIR 1995 SC 2345, wherein in Paragraph 8 it has been held as under:--
'8. So far as the conscious possession of the weapon Ex. M/O/4 is concerned, the disclosure statement (Ex. P-9) inspires no confidence. Firstly, because none of the two panch witnesses, Yash Pal and Sukhdev Singh, ASI, have been examined at the trial and secondly because the disclosure statement does not bear the signatures or the thumb impression of the appellant. Even, the recovery memo of the revolver and the cartridges (Ex. P-9/A), which is also attested by Yash Pal and Sukhdev Singh, ASI does not bear either the signatures or the thumb impression of the accused. The absence of the signatures or the thumb impression of an accused on the disclosure statement recorded under Section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement. According to the defence version the appellant had been arrested during the night intervening 15-16 June, 1984 and not on 23rd June, 1984 as alleged by the prosecution. The statement of Surinder Kumar (P.W. 4) to the effect that 'I had seen the accused in the police station for the first time after about 13- 24 days of the occurrence' probabilies the defence version. The prosecution case, that the appellant was arrested on 23-6-1984 and led to the recovery of the revolver and the cartridges pursuant to the disclosure statement, therefore, becomes suspect. We are unable to place any reliance upon the alleged disclosure statement and the recovery of the revolver and consequently of the Ballistic Expert connecting the empties with Ex. M/O/4 becomes irrelevant. The appellant has denied ownership of the crime revolver and the prosecution has led no evidence to show that the crime weapon belonged to the appellant. There is no other circumstance pressed into aid by the prosecution to connect the appellant with the crime. The prosecution has thus not been able to establish the case against the appellant beyond areasonable doubt. We, therefore, accept his appeal and set aside the conviction is on bail. His bail bonds shall stand discharged.'
44. In this context it is relevant to refer to the decision rendered in the case of State of Maharashtra v. Suresh, (2000) 1 SCC 471, wherein in Paragraph 26, it has been held thus:--
'26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have been somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the Criminal Court that his knowledge about the concealment was on account of one of the last two possibilities the Criminal Court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the Criminal Court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.'
45. The learned Counsel for the State has referred to Exhibits P-19 and Ex. P-15. It is also contended by him that even if the recovery of amount from Jangvali is not identified, it is not vital to the prosecution story as the evidence of Jai Prakash Shivhare (P.W. 7), remains totally unshaken.
46. In this context we may also refer to the decision rendered in the case of Ashok Singh v. State of M.P. (Cr. A. No. 2887/99), wherein this Court expressed the view as under :--
'We also find that none of these disclosures statements bears the signatures or thumb impressions of the accused persons. It is true that neither Section 27 of the Evidence Act nor under the police regulations has it been provided that such statements have to be signed by the accused. But there are judicial pronouncements to the effect that absence of signatures or thumb impressions of the accused on the disclosure statements affects its authenticity and credibility. Jai Karan Singh's case (1995 SC 2345) is a decision on point.'
47. In the case at hand on a perusal of the memoranda it is clear that there is no thumb impression and signature of the accused persons. It is well settled in law that the memoranda or panchnama by themselves are not evidence. They can only be used against the person who had signed it. Any statement which is attributed to the accused leading to discovery has to be proved by witness in accordance with law. In this context we may refer with profit to the decision rendered in the case of Bhagirath and Ors. v. Slate of Madhya Pradesh, 1958 MPLJ 745, wherein it has been held as under:--
'13. ..... There seems to be as general impression among the Subordinate Courts and the Public Prosecutors that lists of discoveries or memoranda or Panchnamas exhibited in criminal cases are themselves evidence. This is an erroneous view of the law. These lists of memoranda or Panchanamas can only be used by persons who signed them or prepared them to refresh their memory within the meaning of Section 159 of the Evidence Act. Whatever statement is attributed to an accused in police custody giving information leading to the discovery must be proved by witness like any other fact. The evidence relating to the preparation of a panchnama or a list of discovery or a memorandum should not be allowed to depend on the ingenuity of a police officer who may or may not like to write the statement in the exact words of the accused.'
48. Similar view has been expressed in the case of Dadulla and Ors. v. State, 1961 MPLJ 1291, in the following terms :--
'12. The documents, memoranda of what accused said and covered by Section 27, Evidence Act, are not by themselves substantive evidence. It is what the witness deposed in Court as having been said by the accused, when giving information leading to discovery of a fact, that is evidence. The memorandum of a statement prepared is only for refreshing memory of witness who has drawn it at that time, or of the attesting witness in whose presence that information was given.
The mere fact that the dead body of the victim was recovered when pointed out by the accused from a spot under water does not advance the case for prosecution for proving the guilt for offence under Section 201, Indian Penal Code. The conduct of the accused in pointing out the spot would show at the most that he had knowledge that the body was lying at that place. That knowledge could be acquired in various ways. Without any further evidence to show that the dead body was thrown there by the accused, his conviction under Section 201 can not be sustained.'
49. Quite apart from the above, there has been no deposition by the relevant witnesses with regard to the memoranda. Coupled with the absence of signature in the memoranda, the aforesaid aspect creates a sense of suspicion the significance of which can not be marginalised. In addition to the aforesaid only one seizure witness has been examined and other witnesses have not been examined and no explanation has been adduced in that regard. Exs. P-21 and P-25, the seizure lists to clearly reflect the same. It is also worthnoting here that these items were recovered from open accessible places. It is worth mentioning here that on a perusal of the evidence H.R. Pandey (P.W. 15) it is quite apparent that he has not stated that house of Jangvali was locked. It is also apparent from his evidence that there is no mention in the diary that a copy of the list was sent to the Magistrate or to any higher officer. It has come out in the evidence of J.P. Shivhare (P.W. 7) that the accused Jangvali had given the key out of his pocket. It is also in his evidence that currency notes were seized from him but key was not seized. If the currency notes were seized from the pocket of the accused a doubt arises why the key which was also in his pocket was not seized. In the absence of evidence in regard to such seizure, it exhibits a missing link, a key one, and poses a big question mark with regard to acceptability of the version of the prosecution story. In view of the entire gamut of circumstances it is difficult to believe that the items were seized at the behest of the accused persons. In our considered opinion that fault of the prosecution is not beyond reproach. This important lacuna can not be put in the realm of defective investigation but indubitably it has important role to discredit the truthfulness of seizure.
50. Now we shall deal with the testimony of Bharatlal Soni (P.W.1). It is not disputed at the Bar that entire case hinges on this eye-witness. True it is there arc certain other factors like seizure of weapons, seizure of currency notes but we have already dealt with how they are not credible. But the question arises whether the evidence of P.W. 1 is absolutely impeachable and beyond any kind of reproach. In this context we may profitably refer to the decision rendered in the case of Rajasthan v. Chandu and Ors., JT 2002 (10) SC 427, wherein the Apex Court has held as under :--
'6. It is no doubt true that conviction can be based on the sole testimony of an interested eye-witness. There is no dispute that the eye-witness including P.W. 1 in the present were all interested parties. There was severe enmity between the complainant group and accused group. There relations were fiercely inimical. The aforesaid rule that the conviction can be based on the sole testimony of an interested eye-witness is subject to the limitation that the testimony of such a witness is trustworthy and consistent and Court finds it safe to fully rely upon the deposition of such a witness in regard to the nature of the occurrence and the involvement of the accused.'
51. Keeping the aforesaid principle in view we have to scrutinise the evidence of P.W. 1. It is submitted by Mr. Datt that testimony of an injured witness can not be regarded as the gospel truth and he can be disbelieved. He has placed reliance on the decision rendered in the case of Savi and Anr. v. State of Tamil Nadu, AIR 1981 SC 1230, wherein in Paragraph 31 it has been held as under :--
'......... All the eye-witnesses are partisan witnesses and notwithstanding the fact that four of them were injured we are unable to accept their evidence in the peculiar circumstances of the case. Where the entire evidence is of a partisan character impartial investigation can lend assurance to the Court to enable it to accept such partisan evidence. But where the investigation itself is found to be tainted the task of the Court to sift the evidence becomes very difficult indeed. Another feature of the case which makes as doubt the credibility of the witnesses is the photographic and somewhat dramatic account which they gave of the incident with minute details of the attack on each of the victims. According to the account of the witnesses it was as if each of the victims of the attack came upon the stage one after the other to be attacked by different accused in succession, each victim and his assailant being followed by the next victim and the next assailant. Surely the account of the witnesses is too dramatic and sounds obviously invented to allow each witness to give evidence of the entire attack.'
52. It is urged by him that the conduct of P.W. 1 is far from being believable. He has categorised many facets how the testimony is not credible; there is delay in his part in lodging the FIR; that his conduct is contrary to human nature; that there has been deliberation before lodging the FIR; that he had stayed at Shahnagar for two hours but no explanation has been offered why he did not lodge the FIR, that in the FIR father's name and residence do not appear; that the evidence is replete with inherent contradictions and discrepancies; and that the names of the assailants have not been mentioned in the inquest report; that there is no justification on the part of deceased persons to stay in a hut; that there is no material on evidence of P.W. 1 that he was closely associated with the accused persons; and that the purpose of going to hut remained a mistery. It is submitted by Mr. Datt that all this would go a long way to show that the evidence of P.W. 1 requires corroboration but there has been no corroboration from any quarter. It is also putforth by him that there is discrepancy between ocular testimony and medical testimony which also create a concavity in the testimony of P.W. 1. Quite apart from above it is also putforth by him that injuries sustained by Bharatlal Soni could not have been caused by the accused persons.
53. Keeping in view the aforesaid submission we shall proceed to scan the evidence of P.W. 1. While discussing with regard to the reliability of P.W. 1 it is to be borne in mind his conduct. Before we delve into this spectrum we think it appropriate to refer to a decision rendered in the case of Chanan Singh v. The State of Haryana, AIR 1971 SC 1554, wherein it has been held as under:--
'The conduct of the witness in running away from the place of occurrence even though he was not chased or threatened by any one of the assailants and his not reporting the incident even to the relatives of either of the two deceased persons was treated as abnormal.'
54. We have already enumerated the submissions of Mr. Datt, learned Senior Counsel how the evidence of Bharatlal Soni, singular eye-witness is not worthy of credence. We have already indicated various facets to highlight how the whole story of the prosecution appears to have been embellished. It is not disputed that the entire case hinges and rests on the testimony of Bharatlal Soni. Mr. Mishra, learned Deputy Advocate General for the State has tried to impress upon us that the evidence of Smt. Meera Rai (P.W. 6), is also to be taken into consideration to appreciate the factual scenario in entirety, but on a perusal of evidence of Meera Rai, we are of the considered opinion, the same does not lend much assurance inasmuch as she had only stated there were two persons with Bhagirath, her son-in-law, and she had named them as Rohini and Jangvali. Even if her evidence is accepted in entirety the only thing that emerges is that accused persons had food at her house and they had left the place. The hub of the matter is whether the testimony of Bharatlal Soni is of such nature to give credence to rest the conviction of the accused persons without any kind of corroboration from any quarter. On a careful and circumspective perusal of the evidence of Bharatlal Soni, we are of the considered opinion, it will be neither advisable nor proper to record the conviction against the accused persons on his sole testimony. We are unable to persuade the deposition as we find the following fallacies which make his testimony intrinsically unreliable. We proceed to catalogue :
(i) There is no rhyme or reason on the part of the deceased persons along with Bharatlal Soni to stay in the hut of Jangvali and Rohini in the night inasmuch as it was hardly 8 O'clock in the evening and there are better towns like Shahnagar nearby.
(ii) It is manifest from the evidence of the said witness that it was winter season and there was no reason that the people who were so affluent should stay in a 'JHOPADI' or hut.
(iii) The acquaintance of the deceased persons with the accused persons is not of that proximity, as is evincible from the evidence of Bhagirath, that they would accept their invitation to stay in the hut though it is not that late in the night.
(iv) The description of search by the accused persons in relation to this witness is not credible inasmuch as ordinarily the accused persons would not have liked to leave any eye-witness and definitely dealt with him in an appropriate manner, more so, when the area was so small.
(v) Fleeing of the P.W. 1 from the place of occurrence and not lodging an FIR at Shahnagar creates a tremendous sense of suspicion.
(vi) It is also in his deposition that he came to Panna and contacted Naresh, described the whole incident to him but did not report at Panna which is unbelievable.
(vii) According to his evidence he came back to Shahnagar and reported the matter at the police station situated therein.
(viii) It is not in his evidence that the accused persons were chasing him and determined to extinguish his life- spark.
(ix) It is manifest from his evidence that he had stayed for two hours at Shahnagar but did not lodge the FIR. The version of this witness that he had to go to Panna and come back to Shahnagar does not inspire confidence but on the contrary, shows the behaviour unlike that of a prudent man.
(x) The theory of fear canvassed by the learned Counsel for the State is not acceptable inasmuch as the witness had stayed at Shahnagar for more than two hours and had crossed in certain police stations. As it appears, the main intention was to contact Naresh and then lodge an FIR.
(xi) He has admitted in the cross-examination that he had not known the accused persons earlier but heard their names from Bhagirath which makes the prosecution story improbable.
(xii) It is in his testimony that he was not aware of the names of the father of Jangvali and Rohini, but the FIR shows that if he has mentioned the names of the fathers of the accused persons. To make it truthful a story has been introduced that when the report was lodged the wife of Rohini was present at the Police Station and given the names of fathers of the accused persons but the said facet does not inspire confidence.
(xiii) It is in his evidence that Rohini, the wife reached at the police station earlier. The aforesaid version, in our considered opinion, does not inspire confidence.
(xiv) In the cross-examination it has been elicited that the distance between Katni and Shahnagar is 20 Kms. and the said distance could be covered within half an hour. In this backdrop the halt at night by the deceased persons in the hut of the accused seems improbable.
(xv) It is admitted by him that it was winter season. It is in his evidence that he had seen the occurrence 7 to 8 feet away and under these circumstances it is totally incredible that the accused persons who were involved in a twin murder case would allow this eye-witness to escape.
(xvi) It is admitted by him that where he had hidden himself it was hardly one and half feet deep place and he had hidden there for two hours and the accused persons did not find him. This story putforth by the witness, in our considered opinion, is not acceptable.
(xvii) While this witness was travelling from Shahnagar to Panna no one had asked him how he sustained the injuries. That apart, it is in his testimony that he had not told anyone about the incident. This does not seem to be the normal conduct of a person.
(xviii) After leaving Shahnagar he had crossed Tikariya Police Sub-Station and thereafter Amanganj Police Station but did not report at any place.
55. On the analysis of the aforesaid evidence of P.W. 1 and appreciating it with in juxtaposition of the factum that there has been delay in lodging of the FIR; that there was no evidence when the FIR was forwarded to the learned Magistrate, as envisaged under Section 157 of the Cr.PC; that the inquest report is totally silent with regard to the accused persons and that the memoranda by the accused persons were not signed and there is no thumb impression on the same, in our considered opinion, all the grounds if scrutinised in a studied manner the cumulative effect of the same is that a benefit of doubt penetrates into the mind which is difficult to ignore.
56. Resultantly, the criminal appeals preferred by the accused appellants are allowed and death reference sent under Section 366 of the Cr.PC is rejected. The accused persons who are in jail arc to be set at liberty forthwith unless their detention is otherwise required.