Jichcha Singh @ Dhichha Singh Vs. the State of Bihar - Court Judgment

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indian penal code, 1860, section 302, arms act 1959, section 27 - conviction and sentence under--appeal--fir lodged in time--informant and injured witness reliable, duly corroborated by medical report and other prosecution witnesses--death by fire-shots confirmed by medical report-delay in sending fir to area judicial magistrate well explained and due to insufficiency of police--not fatal to prosecution--such delay if not satisfactorily explained can only raise suspicion, it does not vitiate prosecution case-prosecution proved case beyond reasonable doubt--appeal meritless--accordingly dismissed. - - the reasons assigned by the trial court for holding that actually no one saw the other two sons of the informant being shot and for discarding the testimonies of all the prosecution witnesses are completely unconvincing and plainly untenable. the obvious meaning of his statement was that there was no occasion for him to say anything about the killings of the two sons because the occurrence was seen by the other witnesses as well. suffice it to say that we find that the discussions contained in paras 30 to 35 of the trial court judgment that led to the acquittal of the other accused are quite unsatisfactory and unconvincing. his statement before the police that on seeing niranjan singh and sanjiv singh carrying rifles he ran towards the house of sarjug singh (pw 3) would in fact put him in a far better position to see the killings of brijnandan and ramanugrah because it is the consistent case of the prosecution that they were shot in front of the house of sarjug singh and the io too found their bodies lying there. lavkush singh in his examination-in-chief, like sarjug singh, claimed to have witnesses the shot fired on ram ratan singh. we would, therefore, consider it prudent and safe not to take into account the evidences of pws 3 and 4 but that still leaves pws 1 and 7 who with the corroboration of pw 2 appear quite unimpeachable. he apparently identified the accused in the dock on going upto them and to the first question in the cross examination he replied that his eye sight was weak and he started gradually losing his sight at the age of eighty to eighty two years. as noted above on this issue the court finds the ocular evidences of pws 7 and 1 quite reliable which assume added strength on corroboration by pw 2 and the medical evidence. sharma first submitted that the trial court disbelieved all the prosecution witnesses to a large extent and that rendered their entire evidence quite unreliable and it would be unsafe to convict the appellant under section 302 of the penal code and send him to jail for life relying upon such evidence. it is also noted above that the court found pw 1 an equally competent and reliable eye-witness of the occurrence and the corroboration of pw 7 by pw 2 also appears to be quite important and cannot be discredited. this alternative story is sought to be built up on materials that are either non-existent or can at best be described as highly tenuous. it is by now well established, that delay by itself may not in all cases lead to the throwing away of the case of the prosecution regardless of the other materials adduced on its behalf. 39. we are, therefore, satisfied that in the present case the prosecution case cannot be thrown over board simply due to the delayed receipt of the fir in the court. jaiswal for the state, we are satisfied that on the basis of the materials on record the appellant's conviction under section 302 of the penal code and section 27, arms act and the sentences awarded to him for the two offences warrant no interference by this court in appeal. aftab alam, j.1. the appellant jichcha singh @ dhichha singh stands convicted under section 302 of the penal code and section 27, arms act. he was sentenced by the trial court to undergo rigorous imprisonment for life and a fine of rs. 1000/- and on default in payment of fine one year's imprisonment for the offence of murder and rigorous imprisonment for three years for committing the offence with a fire-arm. the two sentences were directed to run concurrently. both as an accused under-trial and an appellant before this court, he was denied bail and consequently, he remains in jail now for about ten years.2. the case arose from an occurrence in which three sons of the informant ram lakhan singh (pw 7) were killed by gun-shots. according to the prosecution, ram ratan singh was first shot down by the appellant. followed by brijnandan singh and ramanugrah singh being shot by two other accused, namely, sanjiv singh and niranjan singh. hence, in the beginning, besides the appellant, there were four other accused before the trial court. the appellant and sanjiv singh and niranjan singh were each charged under section 302 of the penal code and section 27 of the arms act. all the three along with the remaining two accused were further charged under sections 148 and 302/149 of the penal code. in course of the trial accused sanjiv singh fled away from the court itself and finally his trial had to be separated by order passed on 2.2.1999. the trial proceeded in respect of the remaining four accused and on its conclusion the appellant alone was convicted and sentenced as noted above and the other three accused, including niranjan singh were acquitted of their respective charges.3. the prosecution case was instituted on the basis of the statement of ram lakhan singh, the father of the three deceased, recorded as fardbeyan by a sub-inspector of police at rajgir ps on 16.6.1996 at 9 in the morning. the fardbeyan was incorporated in the formal fir, instituted a little later on the same day. curiously though, it appears that the fir was sent to the court and it was seen by the cjm, on 20.6.1996:4. in the fardbeyan the informant said that on that day (16.6.1996) at about 7.30 in the morning he was returning with his buffalo from the bihiyar (the out-lying lands of the village) where he had taken it for grazing. as he reached his house, the appellant came out of his house carrying his licensed rifle and started abusing him. he dared the informant to call all his macho sons declaring that he intended to settle the matter, that day, once for all. at this juncture one of the sons of the informant ram ratan singh came there. he asked the informant to go to the house saying that he would tether the animal but before he could proceed to do so, the appellant fired at him from his rifle and he fell down on the ground. the other accused then came from the appellant's house carrying illegal rifles in their hands and moved towards the darwaza (the open ground in front of the door) of the informant's house. there, one of his other sons vijay singh was sitting along with sanjay singh (pw 1). on seeing the accused coming at him, armed with rifles, vijay singh ran away towards north. two of the accused pursued him, firing from their country made rifles but somehow he was not hit by the shots. at this point, on hearing hulla and the sound of gun-shots, another son of the informant brijnandan singh proceeded from the gali towards his house, along with one siyaram singh (pw 2) with whom he was at that time. one of the accused sanjiv singh who was in ambush in the lane fired at him from his country made rifle. hit by the shot birjnandan singh fell down at the back of the informant's house at its south west corner and in front of the house of sarjug singh (pw 3) and arun singh (not examined). it needs to be clarified here that this gali from which brijnandan singh was coming and at the mouth of which his body was found by the io lies at the back of the informant's house. it runs north-south and meets, almost at a right angle, the main lane of the village, running from east to west, on the two sides of which the houses of the informant and the appellant are situate. the gali is bounded on its eastern side by the western wall of the informant's house and on its western side is the house of sarjug singh (pw 3). the informant proceeded to state in the fardbeyan that after brijnandan singh was shot down, one of his yet another son ramanugrah singh, who was at that time somewhere around in the neighbourhood, on hearing hulla and gun-shots came running through the same gali. on witnessing the blood-smeared body of his brother lying in the gali, he started crying loudly and at this stage accused niranjan singh shot him from his country made rifle. he too fell down near the body of brijnandan singh and died after writhing around on the ground for some time. two other accused carrying guns in their hands were standing by the informant (and all that was needed was just a pull of the trigger to finish him too) but the appellant, calling the informant as the old man (budha) said that he would spare him for grieving over the dead bodies of his sons, who were killed before his eyes. after, thus, killing his three sons the accused ran away with their arms towards north in the direction of village kamal bigha. he further stated that the entire occurrence was witnessed by his son vijay singh who was on his darwaza and was able to escape, siyaram singh (pw 2) who was coming along with brijnandan singh when he was shot and sanjay singh (pw 1) who was sitting along with vijay singh at his darwaza and sarjug singh (pw 3) and lavkush singh (pw 4) who were attheir respective darwazas (near the spot) where his two sons brijnandan singh and ramanugrah singh were killed by gun-shots. with regard to the motive behind the occurrence he said that in front of his house, towards east there was a piece of land of the nature, ghair mazrua khas malik. he claimed that it was settled in favour of his family but the appellant wanted to dispossess him from it. a short while ago they (the informant's family) had constructed a wall around this piece of land which had caused great resentment to the appellant and his men and since they were unable to get the informant and his family dispossessed from the land, they took the extreme step of killing his sons. he also said that in course of the occurrence the accused also demolished a major portion of the wall constructed by him around the disputed piece of land. he reiterated that the accused in furtherance of their common object had killed his three sons by gun-shots. he went on to say that after the accused had fled away it was found that though brijnandan singh and ramanugrah singh had died, there was some life left in ram ratan singh who was still breathing. with the help of the villagers he was carried to rajgir hospital but he too died on the way and then his body was taken to the police station where his (informant's) statement was recorded as fardbeyan. the statement was read out to him and on finding it correctly recorded, he put his signature and thumb impression on it. the fardbeyan was also signed by siyaram singh (pw 2) as witness.5. in support of its case the prosecution examined nine witnesses. pws 1 to 5 and the informant (pw 7) came forward to depose as eye-witnesses of the occurrence. pw 6 was the doctor who held post-mortem on the bodies of the three dead persons. pw 8 is the io and pw 9 is another police officer who, after the transfer of pw 8, submitted charge sheet in the case. the defense also examined three witnesses and produced some documents as exhibits.6. a substantial portion of the depositions of prosecution witnesses 1 to 5 and 7 has been rendered redundant since tha trial court disbelieved the prosecution case with regard to the killers of brijnandan singh and ramanugrah singh and further declined to accept that the other accused, apart from the appellant, had participated in the occurrence as members of the unlawful assembly, the common object of which was to cause the death of ram ratan singh and his two other brothers. but at this stage this court cannot refrain from observing that portion of the trial court judgment where it discusses the prosecution case with regard to the murder of brijnandan singh and ramanugrah singh and the culpability of the other three accused is quite unsatisfactory. the reasons assigned by the trial court for holding that actually no one saw the other two sons of the informant being shot and for discarding the testimonies of all the prosecution witnesses are completely unconvincing and plainly untenable.7. accused niranjan singh was acquitted of the charge under section 302 of the penal code primarily because he suffered from the disability of the right hand caused by polio. in course of his examination under section 313, cr pc the trial court found that the fingers of his right hand were bent inwards giving to the hand the appearance of a closed fist. the accused niranjan singh was also examined by a medical board and the report of the board was brought before the trial court as ext. 'a'. the report was identified by dw 3 who was a member of the medical board that examined him. dw 3 worked as the radiologist in the sadar hospital, bihar sharif. but curiously the report of the medical board was not based on any radiological or for that matter any kind of test; it was given on simple visual examination, because, in the words of dw 3, 'the examination of handicaptness (sic) is done in a routine, hence it was not necessary for us to do x- ray'. the report itself had this to say about the accused:c/o. inability to do daily routine work by the right hand,writes with left hand and doing his routine activity of daily work by left hand. (emphasis added)h.o. police affection (sic) in childhood at the age of three years according to the version of the accused.it further stated about him as follows: (1) movement: stiffness of right elbow joint in optimum position. no movement of right shoulder and right wrist joint. fingers of right hand held in flexion position.(2) power of muscles of right upper limb: wasting of muscles of right upper limb.(3) coordination of movement: absent in right upper limb.8. the medical evidence is completely vague and on the basis of this opinion it cannot be said that niranjan singh was unable to hold a rifle or to pull its trigger. the medical report found that niranjan singh had learnt to write by his left hand and he did all the daily chores by that hand. we verified it from his signature on his statement recorded under section 313, cr pc and were quite, surprised by it. unlike the other accused it does not appear to be the signature of an illiterate or a semi-literate person. it is in a firm and free flowing hand.9. persons afflicted with polio in their child-hood are known to perform far more arduous work than holding a rifle and pulling its trigger. the ability to hold a rifle and to fire from it could only be determined on the basis of a proper orthopaedic appraisal and assessment of the power/strength of the different muscle groups of the hand and there is absolutely no evidence in that regard.10. the trial court seems to have over looked that the plea of disability to kill anyone by firing a rifle was taken by the accused. the onus, therefore, lay heavy on him to establish his disability. but what was produced before the court was quite insufficient and inadequate to record a finding that his disability was of a nature that precluded him from holding a rifle and pulling its trigger and it was definitely not sufficient to impeach the otherwise very consistent ocular evidence.11. the trial court held that the informant could not have seen the killing of his two sons brijnandan singh and ramanugrah singh on the ground that their bodies were found lying at the back of the informant's house and on the basis of his statement in cross examination that the darwaza of sarjug singh (pw 3) was not visible from his own darwaza. the finding is completely untenable for two reasons. first, the trial court over looked that the shooters of brijnandan singh and ramanugrah singh were standing in the same lane in which the informant himself was standing. they were fully in his view and the shots were fired when the victims had come to the mouth of the gali opening into the lane. only after being shot they fell down in the gali in front of the house of sarjug singh. secondly, there can be no assumption that in course of the entire occurrence the informant was standing static and immobile at his own darwaza and he was not moving up or down the lane from where even the darwaza of sarjug singh might have been within his sight. the trial court further held that the other witnesses too, pws 1 to 5, had not witnessed the killing of brijnandan singh on a solitary statement of the informant, pw 7 taken completely out of context. in cross examination he said that he told the other witnesses about the killings of his two sons on reaching rajgir. this statement cannot be construed to mean that the occurrence was not seen by the other witnesses when they were themselves saying so vehemently and the informant also had said so in his fardbeyan, in his further statement before the police and in different parts of his deposition before the court. the obvious meaning of his statement was that there was no occasion for him to say anything about the killings of the two sons because the occurrence was seen by the other witnesses as well. it also cannot be lost sight of that the informant was about eighty two years of age when the occurrence took place and he was eighty five years of age when he came before the trial court for his deposition. it was not, therefore, much difficult to take out some isolated and out of context statements from him under the pressure of cross examination.12. there is no occasion here to discuss all the reasons given by the trial court for its findings and to show the weakness and unsustainability of each of them. suffice it to say that we find that the discussions contained in paras 30 to 35 of the trial court judgment that led to the acquittal of the other accused are quite unsatisfactory and unconvincing. this is, however, only of academic interest as there is no appeal against that part of the judgment and with regard to the acquittal of the other accused.13. after this rather long prefatory observations we proceed to examine the manner in which ram ratan singh was killed.the doctor (pw 6) who held post mortem on the bodies of the three deceased found the following ante mortem injuries on the person of ram ratan singh ; (i) one lacerated wound 1/2' x 1/2' cavity deep with inverted blackened margins on the right scapular region,(ii) one lacerated wound 3/4' x 3/4' cavity deep with averted margins on the front of left side of the chest above left nipple.both wounds intercommunicating to each other.14. on dissection it was found that the upper portion of both lungs and the aorta were ruptured. further, third and fourth ribs of right side were fractured. heart chambers were empty and the stomach contained about 350 grams of semi-digested food. according to the doctor, the injuries were caused by a fire arm.15. the medical report, thus, confirms that ram ratan singh was killed by gun shot.16. coming now to ocular evidence, sanjay singh (pw 1) stated that in the morning on 16.6.96 he was sitting with vijay singh at his darwaza. he saw ram ratan singh going towards his cattle shed for tethering his cattle. the appellant came out of his house carrying a rifle and started abusing (ram ratan singh). he fired a shot at ram ratan singh from his licensed rifle. hit by the shot, ram ratan singh fell down. then the other four accused carrying rifles joined the appellant and said to ram lakhan singh that they would not leave alive any of his sons. he and vijay singh ran to the spot where ram ratan singh had fallen down. there the other two accused fired shots at vijay singh. the shots, however, missed and vijay singh ran away. he (the witness) too ran to his house. on reaching near his house he saw the killings of the other two sons of the informant'brijnandan singh and ramanugrah singh by the shots fired respectively by sanjiv singh and niranjan singh. he further stated that the entire occurrence was seen by sarjug singh (pw 3), arun singh (not examined), lavkush singh (pw 4) and the informant (pw 7). he further said that after the accused had left he went to the spot where brijnandan singh and ramanugrah were lying and found both of them dead. he then went near ram ratan singh and found him alive and took him on a khat to the thana. on the way to the thana ram ratan also died. in course of his cross examination, he asserted that ramanugrah was shot by niranjan singh and he had himself seen him firing the shot. with regard to his statement under section 161, cr pc he stated that before the police he had said that he had seen the. occurrence. he denied having made the statement before the police that he heard the sound of two shots and said that he had said to the io that he had seen the occurrence with his own eyes. he further denied to have said before the police that after the accused had fled away in the direction of village kamal bigha, then only he came out of his house and saw that brijnandan singh and ramanugrah had been shot dead.17. from the io (pw 8) it was taken (see para 80) that sanjay singh said before him that on seeing niranjan singh and sanjiv singh armed with rifle he was frightened and he ran towards the house of sarjug singh (pw 3). there appears to be absolutely no inconsistency, much less any contradiction, in the statement of pw 1. as seen above he deposed before the trial court that after ram ratan singh was shot down, he and vijay singh went to him and when shots were fired at vijay singh too, he (vijay) ran away and he (the witness) too ran towards his house. he did not say that he went inside his house. on the contrary, he said that on reaching near his house he saw brijnandan and ramanugrah singh being killed by shots fired by sanjiv singh and niranjan singh respectively. he further said that after the accused had left, he went first to brijnandan singh and ramanugrah singh and found both of them dead. he then went to ram ratan singh and found him still alive. his statement before the police that on seeing niranjan singh and sanjiv singh carrying rifles he ran towards the house of sarjug singh (pw 3) would in fact put him in a far better position to see the killings of brijnandan and ramanugrah because it is the consistent case of the prosecution that they were shot in front of the house of sarjug singh and the io too found their bodies lying there.18. we are, therefore, of the view that sanjay singh, pw 1 is a competent witness of the occurrence and there is nothing to discredit his testimony before the court.19. siyaram singh, pw2 as was stated in the informant's fardbeyan was in the gali with brijnandan singh and he was coming with him when brijnandan singh was shot. that is exactly the position taken by this witness before the trial court and he is, thus, primarily a witness to the killing of brijnandan singh by sanjiv singh and of ramanugrah singh by niranjan singh. the killings of those two persons is no longer an issue in this appeal.20. so far as the killing of ram ratan singh by the present appellant is concerned, he is admittedly not an eye-witness but he corroborates the evidence of the informant (pw 7). he deposed that after the accused had left, he went near brijnandan singh and ramanugrah singh and found both of them dead. he then went near ram ratan singh who was lying on the ground to the east of his cattle-shed in injured condition. at that time he was still alive and was breathing. ram lakhan singh told him that he was shot by the appellant and that the other two accused had also fired shots on vijay singh but the shot missed him.21. the next witness is sarjug singh (pw 3) in front of whose house brijnandan singh and ramanugrah singh were killed by gun- shots. in his examination-in-chief he indeed said that on hulla he came down from his darwaza and saw the appellant carrying his licensed rifle from which he fired at ram ratan singh as a result of which he fell down in front of his dalan, and that his father was also standing there. but in cross examination (see paragraphs 70-75) he said that he came out of his house only on hearing the sound of a gun-shot. he did not immediately went to the darwaza of ram lakhan but went there after about two minutes. he saw the appellant. there was no one else there at that time. ram lakhan told him that the shot was fired from east or west and that shot had hit ram ratan.22. if the statement that he came out from his house on hearing the gun-shot is taken to be correct, then he cannot be an eye- witness of the shot fired at ram ratan singh because undeniably that was the first shot fired by the appellant and before that no shot was fired by any one else.23. similar is the position with regard to lavkush singh (pw 4) who is the son of sarjug singh (pw 3). his house is the second one, further towards west from the house of sarjug singh. lavkush singh in his examination-in-chief, like sarjug singh, claimed to have witnesses the shot fired on ram ratan singh. but in his cross examination (see paras 41 to 46) he stated that he was at his house when he heard the sound of a gun shot and then three more gun-shots. he came out of his house immediately on hearing the first shot. the same criticism would apply to this witness too, that is to say, if he came out of the house only after hearing the first gun shot, he could not have possibly seen the shot fired at ram ratan singh. we would, therefore, consider it prudent and safe not to take into account the evidences of pws 3 and 4 but that still leaves pws 1 and 7 who with the corroboration of pw 2 appear quite unimpeachable.24. pw 7, the informant, as noted above, was a very old person at the time of his deposition in court and his statement before the court is typical in its brevity of an old person. what was said by him in the fardbeyan at some length was repeated before the court in a much compressed form. he said that he brought his animal to his darwaza. the appellant abused him. he was carrying his licensed rifle in his hands. he protested against the abuse. at this point ram ratan singh came there whom the appellant shot by his rifle. ram ratan singh was hit in the chest and he fell down on the ground. on the sound of the gun-shot a number of persons came there running. at the time of firing the shot dhichha singh was not accompanied by any one. a number of people came and carried away ram ratan singh. thereafter, brijnandan singh, one of his other sons was coming. he was shot by sanjiv singh by rifle. he too fell down on being hit by the shot and died at the spot. niranjan singh killed his another son ramanugrah singh. sanjay singh (pw 1), sarjug singh (pw 3), siyaram singh (pw 2), lavkush singh (pw 4) came to his help. he named the other accused, apart frorn the three, who chased vijay singh as he fled towards north. ram ratan singh was carried to rajgir. he accompanied him. ram ratan singh died on the way and his body was taken to the ps and then to the hospital. he gave his statement at the ps. he apparently identified the accused in the dock on going upto them and to the first question in the cross examination he replied that his eye sight was weak and he started gradually losing his sight at the age of eighty to eighty two years.25. in course of cross examination some isolated statements have been taken from him here and there and quite out of context and it was with the help of those statements that the defence was able to persuade the trial court to acquit the other accused. but in so far as the issue in this appeal is concerned, that is to say, whether or not the appellant killed ram ratan singh by firing a shot at him from his rifle, his evidence appears to be quite plain, simple and free from any doubt or inconsistency. as noted above on this issue the court finds the ocular evidences of pws 7 and 1 quite reliable which assume added strength on corroboration by pw 2 and the medical evidence.26. mr. rama kant sharma, senior advocate appearing for the appellant assailed the prosecution case as completely false and unfounded.27. mr. sharma first submitted that the trial court disbelieved all the prosecution witnesses to a large extent and that rendered their entire evidence quite unreliable and it would be unsafe to convict the appellant under section 302 of the penal code and send him to jail for life relying upon such evidence. we see the matter in an entirely different light. this court has expressed its deep dissatisfaction over the way the trial court seems to have misconstrued the ocular evidence with regard to the killings of the other two persons. we, therefore, see no weakness in the prosecution evidence. we rather find that the trial court was not quite proper and correct in its appreciation of evidence.28. mr. sharma next submitted that from the materials on record it would appear that pw 7 could alone be the witness of ram ratan's killing and his evidence too was full of inconsistencies. we are unable to accept the submission. we have found no inconsistency in the evidence of pw 7 and to the court he appears to be a remarkably consistent witness having regard to his very old age. it is also noted above that the court found pw 1 an equally competent and reliable eye-witness of the occurrence and the corroboration of pw 7 by pw 2 also appears to be quite important and cannot be discredited.29. learned counsel then submitted that no occurrence as alleged by the prosecution, ever took place and the three sons of the informant were killed in an entirely different manner. he tried almost to construct an alternative picture. he submitted that the sons of the appellant, particularly those three who were killed had criminal antecedents and were perhaps members of some criminal gang. they were killed during the night hours in some gang war. their bodies were discovered in the morning and a totally unfounded version of the occurrence was invented in order to falsely implicate the appellant to settle personal scores and to grab the ghair mazrua land lying in front of the informant's house. this alternative story is sought to be built up on materials that are either non-existent or can at best be described as highly tenuous. in order to show the criminal antecedents of the deceased a reference is made to the suggestion given to some of the prosecution witnesses that brijnandan singh/ramanugrah singh had absconded with the daughter of one siya saran pandit and after the occurrence he along with his family had shifted away from the village and lived in rajgir. the witnesses of course either denied the suggestion or expressed their ignorance about it. it was further suggested that the deceased brijnandan singh had given a piece of land to a migrant woman for settling down in the village who after his death left the village and went away. such materials can by no means justify the assumption that the three deceased were members of a criminal gang and were killed in a gang war.30. in support of the submission that the three deceased were killed during night hours and not at the time as stated by the prosecution, mr. sharma placed great reliance on their post- mortem reports according to which some semi-digested food was found in their abdomens. mr. sharma strongly contended that the presence of semi digested food would lead to only one inference, that is, they were killed during the night hours. in our view the single finding in the post mortem report is wholly inadequate to even shake, much less demolish, the unimpeachable ocular evidence led by the prosecution.31. in support of the alternate version of the occurrence as suggested by him, mr. sharma laid great stress on the circumstance that the fir reached the court after the inordinate and completely unexplained delay of four days. it is noted . above that the fardbeyan was recorded at the ps on 16.6.96 at 9 in the morning. the formal fir was drawn up on the same day though its exact time is undecipherable as the corner of the original document is torn away. but the fir reached the court and it was seen by the cjm on 20.1.1996, that is to say, after a delay of four days. it is not denied that the distance between rajgir ps and the court is hardly of a few hours.32. mr. sharma submitted that the fir on record was really not the initial and the original version of the occurrence and it was later changed to suit the prosecution motive to falsely implicate the appellant. in this regard he pointed out that in column three of the fir relating to the date of dispatch from the ps it was only stated that it was sent through special messenger. there was no explanation whatsoever for the delay in the fir reaching the court. he went to the extent of submitting that what should have formed the fir of the case was in fact recorded at the village where the occurrence took place and not at rajgir ps but it was later destroyed to be substituted by the present fir. in support of this submission he referred to the statements of pw 1 at para 4 where he said that his statement was taken in the village and he had put his signature on reading his recorded statement and of pw 7 at para 7 that the police had come to the village at abut 8 or 9 in the morning and of pw 3 that the police had come at about 8 in the morning.33. mr. sharma further submitted that in course of investigation and in order to secure the arrest of the accused the police had rounded up several heads of cattle believing them to be of the accused and had lodged them in the cattle pound. from the cattle pound those cattle were released in favour kishun singh and gopal singh. according to mr. sharma in the original fir it must be those two persons namely, kishun singh and gopal singh who were named as accused and it was for that reason that the cattle belonging to them were taken away by the police and impounded.34. we find no substance in any of these submissions. according to the 10, after recording the fardbeyan at 9, he had come directly to the village and, therefore, when the informant said in the court that the police had come to the village around 8 or 9 in the morning it was just an approximation of time. similarly, the statement of pw 1 said that he had put his signature on his statement recorded by the police means nothing. no signature is put on the statement recorded under section 161, cr pc and moreover no document bearing his signature is on the record. the impounding of a number of cattle belonging to two persons other than the accused also signifies nothing but the negligent and carelessness in the investigation. it is not the case that the cattle of the appellant were not impounded but in addition to those animals some cattle belonging to two other unconnected persons were also impounded and those were later released in favour of those two persons.35. in support of his submission that the delay in the fir reaching the court would be fatal to the prosecution case, mr. sharma relied upon three supreme court decisions in (i) the state of punjab v. trilok singh, : 1971crilj1063 (para 5), (ii) datar singh v. state of punjab, : 1974crilj908 (para 11) and (iii) ishwar singh v. state of u.p., : 1976crilj1883 (para 5).36. on a careful consideration we are of the view that those three decisions have no application to the facts of this case. it is by now well established, that delay by itself may not in all cases lead to the throwing away of the case of the prosecution regardless of the other materials adduced on its behalf. delay in the fir reaching the court undoubtedly creates suspicion but the suspicion arising from the circumstance has to be viewed in the totality of circumstances and along with other evidences on record.37. in this way we find that immediately after recording the fardbeyan at 9 a.m. on 16.6.96 the investigation proceeded. the inquest report of ram ratan singh that was made at the ps itself shows its time as 9 in the morning i.e. simultaneously with the recording of the fardbeyan. the inquest report of ramanugrah and b.rijnandan singh were made at the village at 10.30 and 11 respectively on the same day. the statements of witnesses were also recorded in the case diary on that date itself. the post-mortem of the three bodies were also held on the same day. we are, therefore, completely unable to accept the submission that there was some other fir giving a different version of the occurrence which was later destroyed and substituted by the present fir in order to suit the prosecution case. all that can be said in this regard is that the delay was due to the negligence and carelessness of the staff of the police station.38. in munshi prasad v. state of bihar, : 2001crilj4708 the supreme court laid down the law in para 14 of the judgment as follows ; 14. in support of the appeal, a further submission has been made pertaining to the first information report (fir). on this score the appellants contended that delayed receipt of the fir in the court of the chief judicial magistrate cannot but be viewed with suspicion. while it is true that section 157 of the code makes it obligatory on the officer incharge of the police station to send a report of the information received to a magistrate forth-with, but that does not mean an imply to denounce and discard and otherwise positive and trust worthy evidence on record. technicality ought not to outweigh the course of justice--if the court is otherwise convinced and has come to a conclusion as regards the truthfulness of the prosecution case, merely delay, which can otherwise be ascribed to be reasonable, would not be itself demolish the prosecution case. the decision of this court in shiv ram v. state of u.p.: (1997 air scw 3996: air 1998 sc 49: 1998 cri. lj 76: 1997 all lj 2266) lends support to the observation as above.39. we are, therefore, satisfied that in the present case the prosecution case cannot be thrown over board simply due to the delayed receipt of the fir in the court.40. on a careful consideration of the materials on record and on hearing mr. sharma for the appellant and mr. jaiswal for the state, we are satisfied that on the basis of the materials on record the appellant's conviction under section 302 of the penal code and section 27, arms act and the sentences awarded to him for the two offences warrant no interference by this court in appeal. we find no merit in the appeal and it is accordingly dismissed. rekha kumari, j. 41. i agree.

Judgment:

Aftab Alam, J.

1. The appellant Jichcha Singh @ Dhichha Singh stands convicted under Section 302 of the Penal Code and Section 27, Arms Act. He was sentenced by the trial Court to undergo rigorous imprisonment for life and a fine of Rs. 1000/- and on default in payment of fine one year's imprisonment for the offence of murder and rigorous imprisonment for three years for committing the offence with a fire-arm. The two sentences were directed to run concurrently. Both as an accused under-trial and an appellant before this Court, he was denied bail and consequently, he remains in jail now for about ten years.

2. The case arose from an occurrence in which three sons of the informant Ram Lakhan Singh (PW 7) were killed by gun-shots. According to the prosecution, Ram Ratan Singh was first shot down by the appellant. Followed by Brijnandan Singh and Ramanugrah Singh being shot by two other accused, namely, Sanjiv Singh and Niranjan Singh. Hence, in the beginning, besides the appellant, there were four other accused before the trial Court. The appellant and Sanjiv Singh and Niranjan Singh were each charged under Section 302 of the Penal Code and Section 27 of the Arms Act. All the three along with the remaining two accused were further charged under Sections 148 and 302/149 of the Penal Code. In course of the trial accused Sanjiv Singh fled away from the Court itself and finally his trial had to be separated by order passed on 2.2.1999. The trial proceeded in respect of the remaining four accused and on its conclusion the appellant alone was convicted and sentenced as noted above and the other three accused, including Niranjan Singh were acquitted of their respective charges.

3. The prosecution case was instituted on the basis of the statement of Ram Lakhan Singh, the father of the three deceased, recorded as fardbeyan by a Sub-Inspector of Police at Rajgir PS on 16.6.1996 at 9 in the morning. The fardbeyan was incorporated in the formal FIR, instituted a little later on the same day. Curiously though, it appears that the FIR was sent to the Court and it was seen by the CJM, on 20.6.1996:

4. In the fardbeyan the informant said that on that day (16.6.1996) at about 7.30 in the morning he was returning with his buffalo from the Bihiyar (the out-lying lands of the village) where he had taken it for grazing. As he reached his house, the appellant came out of his house carrying his licensed rifle and started abusing him. He dared the informant to call all his macho sons declaring that he intended to settle the matter, that day, once for all. At this juncture one of the sons of the informant Ram Ratan Singh came there. He asked the informant to go to the house saying that he would tether the animal but before he could proceed to do so, the appellant fired at him from his rifle and he fell down on the ground. The other accused then came from the appellant's house carrying illegal rifles in their hands and moved towards the darwaza (the open ground in front of the door) of the informant's house. There, one of his other sons Vijay Singh was sitting along with Sanjay Singh (PW 1). On seeing the accused coming at him, armed with rifles, Vijay Singh ran away towards north. Two of the accused pursued him, firing from their country made rifles but somehow he was not hit by the shots. At this point, on hearing hulla and the sound of gun-shots, another son of the informant Brijnandan Singh proceeded from the gali towards his house, along with one Siyaram Singh (PW 2) with whom he was at that time. One of the accused Sanjiv Singh who was in ambush in the lane fired at him from his country made rifle. Hit by the shot Birjnandan Singh fell down at the back of the informant's house at its south west corner and in front of the house of Sarjug Singh (PW 3) and Arun Singh (not examined). It needs to be clarified here that this gali from which Brijnandan Singh was coming and at the mouth of which his body was found by the IO lies at the back of the informant's house. It runs north-south and meets, almost at a right angle, the main lane of the village, running from east to west, on the two sides of which the houses of the informant and the appellant are situate. The gali is bounded on its eastern side by the western wall of the informant's house and on its western side is the house of Sarjug Singh (PW 3). The informant proceeded to state in the fardbeyan that after Brijnandan Singh was shot down, one of his yet another son Ramanugrah Singh, who was at that time somewhere around in the neighbourhood, on hearing hulla and gun-shots came running through the same gali. On witnessing the blood-smeared body Of his brother lying in the gali, he started crying loudly and at this stage accused Niranjan Singh shot him from his country made rifle. He too fell down near the body of Brijnandan Singh and died after writhing around on the ground for some time. Two other accused carrying guns in their hands were standing by the informant (and all that was needed was just a pull of the trigger to finish him too) But the appellant, calling the informant as the old man (budha) said that he would spare him for grieving over the dead bodies of his sons, who were killed before his eyes. After, thus, killing his three sons the accused ran away with their arms towards north in the direction of village Kamal Bigha. He further stated that the entire occurrence was witnessed by his son Vijay Singh who was on his darwaza and was able to escape, Siyaram Singh (PW 2) who was coming along with Brijnandan Singh when he was shot and Sanjay Singh (PW 1) who was sitting along with Vijay Singh at his darwaza and Sarjug Singh (PW 3) and Lavkush Singh (PW 4) who were attheir respective darwazas (near the spot) where his two sons Brijnandan Singh and Ramanugrah Singh were killed by gun-shots. With regard to the motive behind the occurrence he said that in front of his house, towards east there was a piece of land of the nature, Ghair Mazrua Khas Malik. He claimed that it was settled in favour of his family but the appellant wanted to dispossess him from it. A short while ago they (the informant's family) had constructed a wall around this piece of land which had caused great resentment to the appellant and his men and since they were unable to get the informant and his family dispossessed from the land, they took the extreme step of killing his sons. He also said that in course of the occurrence the accused also demolished a major portion of the wall constructed by him around the disputed piece of land. He reiterated that the accused in furtherance of their common object had killed his three sons by gun-shots. He went on to say that after the accused had fled away it was found that though Brijnandan Singh and Ramanugrah Singh had died, there was some life left in Ram Ratan Singh who was still breathing. With the help of the villagers he was carried to Rajgir Hospital but he too died on the way and then his body was taken to the police station where his (informant's) statement was recorded as fardbeyan. The statement was read out to him and on finding it correctly recorded, he put his signature and thumb impression on it. The fardbeyan was also signed by Siyaram Singh (PW 2) as witness.

5. In support of its case the prosecution examined nine witnesses. PWs 1 to 5 and the informant (PW 7) came forward to depose as eye-witnesses of the occurrence. PW 6 was the doctor who held post-mortem on the bodies of the three dead persons. PW 8 is the IO and PW 9 is another police officer who, after the transfer of PW 8, submitted charge sheet in the case. The defense also examined three witnesses and produced some documents as exhibits.

6. A substantial portion of the depositions of prosecution witnesses 1 to 5 and 7 has been rendered redundant since tha trial Court disbelieved the prosecution case with regard to the killers of Brijnandan Singh and Ramanugrah Singh and further declined to accept that the other accused, apart from the appellant, had participated in the occurrence as members of the unlawful assembly, the common object of which was to cause the death of Ram Ratan Singh and his two other brothers. But at this stage this Court cannot refrain from observing that portion of the trial Court judgment where it discusses the prosecution case with regard to the murder of Brijnandan Singh and Ramanugrah Singh and the culpability of the other three accused is quite unsatisfactory. The reasons assigned by the trial Court for holding that actually no one saw the other two sons of the informant being shot and for discarding the testimonies of all the prosecution witnesses are completely unconvincing and plainly untenable.

7. Accused Niranjan Singh was acquitted of the charge under Section 302 of the Penal Code primarily because he suffered from the disability of the right hand caused by polio. In course of his examination under Section 313, Cr PC the trial Court found that the fingers of his right hand were bent inwards giving to the hand the appearance of a closed fist. The accused Niranjan Singh was also examined by a Medical Board and the report of the Board was brought before the trial Court as Ext. 'A'. The report was identified by DW 3 who was a member of the Medical Board that examined him. DW 3 worked as the radiologist in the Sadar Hospital, Bihar Sharif. But curiously the report of the Medical Board was not based on any radiological or for that matter any kind of test; it was given on simple visual examination, because, in the words of DW 3, 'the examination of handicaptness (sic) is done in a routine, hence it was not necessary for us to do X- ray'. The report itself had this to say about the accused:

C/O. Inability to do daily routine work by the right hand,

Writes with left hand and doing his routine activity of daily work by left hand.

(emphasis added)

H.O. Police affection (sic) in childhood at the age of three years according to the version of the accused.

It further stated about him as follows:

(1) Movement: stiffness of right elbow joint in optimum position. No movement of right shoulder and right wrist joint. Fingers of right hand held in flexion position.

(2) Power of muscles of right upper limb: wasting of muscles of right upper limb.

(3) Coordination of movement: absent in right upper limb.

8. The medical evidence is completely vague and on the basis of this opinion it cannot be said that Niranjan Singh was unable to hold a rifle or to pull its trigger. The medical report found that Niranjan Singh had learnt to write by his left hand and he did all the daily chores by that hand. We verified it from his signature on his statement recorded under Section 313, Cr PC and were quite, surprised by it. Unlike the other accused it does not appear to be the signature of an illiterate or a semi-literate person. It is in a firm and free flowing hand.

9. Persons afflicted with polio in their child-hood are known to perform far more arduous work than holding a rifle and pulling its trigger. The ability to hold a rifle and to fire from it could only be determined on the basis of a proper orthopaedic appraisal and assessment of the power/strength of the different muscle groups of the hand and there is absolutely no evidence in that regard.

10. The trial Court seems to have over looked that the plea of disability to kill anyone by firing a rifle was taken by the accused. The onus, therefore, lay heavy on him to establish his disability. But what was produced before the Court was quite insufficient and inadequate to record a finding that his disability was of a nature that precluded him from holding a rifle and pulling its trigger and it was definitely not sufficient to impeach the otherwise very consistent ocular evidence.

11. The trial Court held that the informant could not have seen the killing of his two sons Brijnandan Singh and Ramanugrah Singh on the ground that their bodies were found lying at the back of the informant's house and on the basis of his statement in cross examination that the darwaza of Sarjug Singh (PW 3) was not visible from his own darwaza. The Finding is completely untenable for two reasons. First, the trial Court over looked that the shooters of Brijnandan Singh and Ramanugrah Singh were standing in the same lane in which the informant himself was standing. They were fully in his view and the shots were fired when the victims had come to the mouth of the gali opening into the lane. Only after being shot they fell down in the gali in front of the house of Sarjug Singh. Secondly, there can be no assumption that in course of the entire occurrence the informant was standing static and immobile at his own darwaza and he was not moving up or down the lane from where even the darwaza of Sarjug Singh might have been within his sight. The trial Court further held that the other witnesses too, PWs 1 to 5, had not witnessed the killing of Brijnandan Singh on a solitary statement of the informant, PW 7 taken completely out of context. In cross examination he said that he told the other witnesses about the killings of his two sons on reaching Rajgir. This statement cannot be construed to mean that the occurrence was not seen by the other witnesses when they were themselves saying so vehemently and the informant also had said so in his fardbeyan, in his further statement before the police and in different parts of his deposition before the Court. The obvious meaning of his statement was that there was no occasion for him to say anything about the killings of the two sons because the occurrence was seen by the other witnesses as well. It also cannot be lost sight of that the informant was about eighty two years of age when the occurrence took place and he was eighty five years of age when he came before the trial Court for his deposition. It was not, therefore, much difficult to take out some isolated and out of context statements from him under the pressure of cross examination.

12. There is no occasion here to discuss all the reasons given by the trial Court for its findings and to show the weakness and unsustainability of each of them. Suffice it to say that we find that the discussions contained in paras 30 to 35 of the trial Court judgment that led to the acquittal of the other accused are quite unsatisfactory and unconvincing. This is, however, only of academic interest as there is no appeal against that part of the judgment and with regard to the acquittal of the other accused.

13. After this rather long prefatory observations we proceed to examine the manner in which Ram Ratan Singh was killed.

The doctor (PW 6) who held post mortem on the bodies of the three deceased found the following ante mortem injuries on the person of Ram Ratan Singh ;

(i) One lacerated wound 1/2' x 1/2' cavity deep with inverted blackened margins on the right scapular region,

(ii) One lacerated wound 3/4' x 3/4' cavity deep with averted margins on the front of left side of the chest above left nipple.

Both wounds intercommunicating to each other.

14. On dissection it was found that the upper portion of both lungs and the aorta were ruptured. Further, third and fourth ribs of right side were fractured. Heart chambers were empty and the stomach contained about 350 grams of semi-digested food. According to the doctor, the injuries were caused by a fire arm.

15. The medical report, thus, confirms that Ram Ratan Singh was killed by gun shot.

16. Coming now to ocular evidence, Sanjay Singh (PW 1) stated that in the morning on 16.6.96 he was sitting with Vijay Singh at his darwaza. He saw Ram Ratan Singh going towards his cattle shed for tethering his cattle. The appellant came out of his house carrying a rifle and started abusing (Ram Ratan Singh). He fired a shot at Ram Ratan Singh from his licensed rifle. Hit by the shot, Ram Ratan Singh fell down. Then the other four accused carrying rifles joined the appellant and said to Ram Lakhan Singh that they would not leave alive any of his sons. He and Vijay Singh ran to the spot where Ram Ratan Singh had fallen down. There the other two accused fired shots at Vijay Singh. The shots, however, missed and Vijay Singh ran away. He (the witness) too ran to his house. On reaching near his house he saw the killings of the other two sons of the informant'Brijnandan Singh and Ramanugrah Singh by the shots fired respectively by Sanjiv Singh and Niranjan Singh. He further stated that the entire occurrence was seen by Sarjug Singh (PW 3), Arun Singh (not examined), Lavkush Singh (PW 4) and the informant (PW 7). He further said that after the accused had left he went to the spot where Brijnandan Singh and Ramanugrah were lying and found both of them dead. He then went near Ram Ratan Singh and found him alive and took him on a khat to the thana. On the way to the thana Ram Ratan also died. In course of his cross examination, he asserted that Ramanugrah was shot by Niranjan Singh and he had himself seen him firing the shot. With regard to his statement under Section 161, Cr PC he stated that before the police he had said that he had seen the. occurrence. He denied having made the statement before the police that he heard the sound of two shots and said that he had said to the IO that he had seen the occurrence with his own eyes. He further denied to have said before the police that after the accused had fled away in the direction of village Kamal Bigha, then only he came out of his house and saw that Brijnandan Singh and Ramanugrah had been shot dead.

17. From the IO (PW 8) it was taken (see para 80) that Sanjay Singh said before him that on seeing Niranjan Singh and Sanjiv Singh armed with rifle he was frightened and he ran towards the house of Sarjug Singh (PW 3). There appears to be absolutely no inconsistency, much less any contradiction, in the statement of PW 1. As seen above he deposed before the trial Court that after Ram Ratan Singh was shot down, he and Vijay Singh went to him and when shots were fired at Vijay Singh too, he (Vijay) ran away and he (the witness) too ran towards his house. He did not say that he went inside his house. On the contrary, he said that on reaching near his house he saw Brijnandan and Ramanugrah Singh being killed by shots fired by Sanjiv Singh and Niranjan Singh respectively. He further said that after the accused had left, he went first to Brijnandan Singh and Ramanugrah Singh and found both of them dead. He then went to Ram Ratan Singh and found him still alive. His statement before the police that on seeing Niranjan Singh and Sanjiv Singh carrying rifles he ran towards the house of Sarjug Singh (PW 3) would in fact put him in a far better position to see the killings of Brijnandan and Ramanugrah because it is the consistent case of the prosecution that they were shot in front of the house of Sarjug Singh and the IO too found their bodies lying there.

18. We are, therefore, of the view that Sanjay Singh, PW 1 is a competent witness of the occurrence and there is nothing to discredit his testimony before the Court.

19. Siyaram Singh, PW2 as was stated in the informant's fardbeyan was in the gali with Brijnandan Singh and he was coming with him when Brijnandan Singh was shot. That is exactly the position taken by this witness before the trial Court and he is, thus, primarily a witness to the killing of Brijnandan Singh by Sanjiv Singh and of Ramanugrah Singh by Niranjan Singh. The killings of those two persons is no longer an issue in this appeal.

20. So far as the killing of Ram Ratan Singh by the present appellant is concerned, he is admittedly not an eye-witness but he corroborates the evidence of the informant (PW 7). He deposed that after the accused had left, he went near Brijnandan Singh and Ramanugrah Singh and found both of them dead. He then went near Ram Ratan Singh who was lying on the ground to the east of his cattle-shed in injured condition. At that time he was still alive and was breathing. Ram Lakhan Singh told him that he was shot by the appellant and that the other two accused had also fired shots on Vijay Singh but the shot missed him.

21. The next witness is Sarjug Singh (PW 3) in front of whose house Brijnandan Singh and Ramanugrah Singh were killed by gun- shots. In his examination-in-chief he indeed said that on hulla he came down from his darwaza and saw the appellant carrying his licensed rifle from which he fired at Ram Ratan Singh as a result of which he fell down in front of his Dalan, and that his father was also standing there. But in cross examination (see paragraphs 70-75) he said that he came out of his house only on hearing the sound of a gun-shot. He did not immediately went to the darwaza of Ram Lakhan but went there after about two minutes. He saw the appellant. There was no one else there at that time. Ram Lakhan told him that the shot was fired from east or west and that shot had hit Ram Ratan.

22. If the statement that he came out from his house on hearing the gun-shot is taken to be correct, then he cannot be an eye- witness of the shot fired at Ram Ratan Singh because undeniably that was the first shot fired by the appellant and before that no shot was fired by any one else.

23. Similar is the position with regard to Lavkush Singh (PW 4) who is the son of Sarjug Singh (PW 3). His house is the second one, further towards west from the house of Sarjug Singh. Lavkush Singh in his examination-in-chief, like Sarjug Singh, claimed to have witnesses the shot fired on Ram Ratan Singh. But in his cross examination (see paras 41 to 46) he stated that he was at his house when he heard the sound of a gun shot and then three more gun-shots. He came out of his house immediately on hearing the first shot. The same criticism would apply to this witness too, that is to say, if he came out of the house only after hearing the first gun shot, he could not have possibly seen the shot fired at Ram Ratan Singh. We would, therefore, consider it prudent and safe not to take into account the evidences of PWs 3 and 4 but that still leaves PWs 1 and 7 who with the corroboration of PW 2 appear quite unimpeachable.

24. PW 7, the informant, as noted above, was a very old person at the time of his deposition in Court and his statement before the Court is typical in its brevity of an old person. What was said by him in the fardbeyan at some length was repeated before the Court in a much compressed form. He said that he brought his animal to his darwaza. The appellant abused him. He was carrying his licensed rifle in his hands. He protested against the abuse. At this point Ram Ratan Singh came there whom the appellant shot by his rifle. Ram Ratan Singh was hit in the chest and he fell down on the ground. On the sound of the gun-shot a number of persons came there running. At the time of firing the shot Dhichha Singh was not accompanied by any one. A number of people came and carried away Ram Ratan Singh. Thereafter, Brijnandan Singh, one of his other sons was coming. He was shot by Sanjiv Singh by rifle. He too fell down on being hit by the shot and died at the spot. Niranjan Singh killed his another son Ramanugrah Singh. Sanjay Singh (PW 1), Sarjug Singh (PW 3), Siyaram Singh (PW 2), Lavkush Singh (PW 4) came to his help. He named the other accused, apart frorn the three, who chased Vijay Singh as he fled towards north. Ram Ratan Singh was carried to Rajgir. He accompanied him. Ram Ratan Singh died on the way and his body was taken to the PS and then to the hospital. He gave his statement at the PS. He apparently identified the accused in the dock on going upto them and to the first question in the cross examination he replied that his eye sight was weak and he started gradually losing his sight at the age of eighty to eighty two years.

25. In course of cross examination some isolated statements have been taken from him here and there and quite out of context and it was with the help of those statements that the defence was able to persuade the trial Court to acquit the other accused. But in so far as the issue in this appeal is concerned, that is to say, whether or not the appellant killed Ram Ratan Singh by firing a shot at him from his rifle, his evidence appears to be quite plain, simple and free from any doubt or inconsistency. As noted above on this issue the Court finds the ocular evidences of PWs 7 and 1 quite reliable which assume added strength on corroboration by PW 2 and the medical evidence.

26. Mr. Rama Kant Sharma, Senior Advocate appearing for the appellant assailed the prosecution case as completely false and unfounded.

27. Mr. Sharma first submitted that the trial Court disbelieved all the prosecution witnesses to a large extent and that rendered their entire evidence quite unreliable and it would be unsafe to convict the appellant under Section 302 of the Penal Code and send him to jail for life relying upon such evidence. We see the matter in an entirely different light. This Court has expressed its deep dissatisfaction over the way the trial Court seems to have misconstrued the ocular evidence with regard to the killings of the other two persons. We, therefore, see no weakness in the prosecution evidence. We rather find that the trial Court was not quite proper and correct in its appreciation of evidence.

28. Mr. Sharma next submitted that from the materials on record it would appear that PW 7 could alone be the witness of Ram Ratan's killing and his evidence too was full of inconsistencies. We are unable to accept the submission. We have found no inconsistency in the evidence of PW 7 and to the Court he appears to be a remarkably consistent witness having regard to his very old age. It is also noted above that the Court found PW 1 an equally competent and reliable eye-witness of the occurrence and the corroboration of PW 7 by PW 2 also appears to be quite important and cannot be discredited.

29. Learned counsel then submitted that no occurrence as alleged by the prosecution, ever took place and the three sons of the informant were killed in an entirely different manner. He tried almost to construct an alternative picture. He submitted that the sons of the appellant, particularly those three who were killed had criminal antecedents and were perhaps members of some criminal gang. They were killed during the night hours in some gang war. Their bodies were discovered in the morning and a totally unfounded version of the occurrence was invented in order to falsely implicate the appellant to settle personal scores and to grab the Ghair Mazrua land lying in front of the informant's house. This alternative story is sought to be built up on materials that are either non-existent or can at best be described as highly tenuous. In order to show the criminal antecedents of the deceased a reference is made to the suggestion given to some of the prosecution witnesses that Brijnandan Singh/Ramanugrah Singh had absconded with the daughter of one Siya Saran Pandit and after the occurrence he along with his family had shifted away from the village and lived in Rajgir. The witnesses of course either denied the suggestion or expressed their ignorance about it. It was further suggested that the deceased Brijnandan Singh had given a piece of land to a migrant woman for settling down in the village who after his death left the village and went away. Such materials can by no means justify the assumption that the three deceased were members of a criminal gang and were killed in a gang war.

30. In support of the submission that the three deceased were killed during night hours and not at the time as stated by the prosecution, Mr. Sharma placed great reliance on their post- mortem reports according to which some semi-digested food was found in their abdomens. Mr. Sharma strongly contended that the presence of semi digested food would lead to only one inference, that is, they were killed during the night hours. In our view the single finding in the post mortem report is wholly inadequate to even shake, much less demolish, the unimpeachable ocular evidence led by the prosecution.

31. In support of the alternate version of the occurrence as suggested by him, Mr. Sharma laid great stress on the circumstance that the FIR reached the Court after the inordinate and completely unexplained delay of four days. It is noted . above that the fardbeyan was recorded at the PS on 16.6.96 at 9 in the morning. The formal FIR was drawn up on the same day though its exact time is undecipherable as the corner of the original document is torn away. But the FIR reached the Court and it was seen by the CJM on 20.1.1996, that is to say, after a delay of four days. It is not denied that the distance between Rajgir PS and the Court is hardly of a few hours.

32. Mr. Sharma submitted that the FIR on record was really not the initial and the original version of the occurrence and it was later changed to suit the prosecution motive to falsely implicate the appellant. In this regard he pointed out that in column three of the FIR relating to the date of dispatch from the PS it was only stated that it was sent through special messenger. There was no explanation whatsoever for the delay in the FIR reaching the Court. He went to the extent of submitting that what should have formed the FIR of the case was in fact recorded at the village where the occurrence took place and not at Rajgir PS but it was later destroyed to be substituted by the present FIR. In support of this submission he referred to the statements of PW 1 at para 4 where he said that his statement was taken in the village and he had put his signature on reading his recorded statement and of PW 7 at para 7 that the police had come to the village at abut 8 or 9 in the morning and of PW 3 that the police had come at about 8 in the morning.

33. Mr. Sharma further submitted that in course of investigation and in order to secure the arrest of the accused the police had rounded up several heads of cattle believing them to be of the accused and had lodged them in the cattle pound. From the cattle pound those cattle were released in favour Kishun Singh and Gopal Singh. According to Mr. Sharma in the original FIR it must be those two persons namely, Kishun Singh and Gopal Singh who were named as accused and it was for that reason that the cattle belonging to them were taken away by the police and impounded.

34. We find no substance in any of these submissions. According to the 10, after recording the fardbeyan at 9, he had come directly to the village and, therefore, when the informant said in the Court that the police had come to the village around 8 or 9 in the morning it was just an approximation of time. Similarly, the statement of PW 1 said that he had put his signature on his statement recorded by the police means nothing. No signature is put on the statement recorded under Section 161, Cr PC and moreover no document bearing his signature is on the record. The impounding of a number of cattle belonging to two persons other than the accused also signifies nothing but the negligent and carelessness in the investigation. It is not the case that the cattle of the appellant were not impounded but in addition to those animals some cattle belonging to two other unconnected persons were also impounded and those were later released in favour of those two persons.

35. In support of his submission that the delay in the FIR reaching the Court would be fatal to the prosecution case, Mr. Sharma relied upon three Supreme Court decisions in (i) the State of Punjab v. Trilok Singh, : 1971CriLJ1063 (para 5), (ii) Datar Singh v. State of Punjab, : 1974CriLJ908 (para 11) and (iii) Ishwar Singh v. State of U.P., : 1976CriLJ1883 (para 5).

36. On a careful consideration we are of the view that those three decisions have no application to the facts of this case. It is by now well established, that delay by itself may not in all cases lead to the throwing away of the case of the prosecution regardless of the other materials adduced on its behalf. Delay in the FIR reaching the Court undoubtedly creates suspicion but the suspicion arising from the circumstance has to be viewed in the totality of circumstances and along with other evidences on record.

37. In this way we find that immediately after recording the fardbeyan at 9 a.m. on 16.6.96 the investigation proceeded. The inquest report of Ram Ratan Singh that was made at the PS itself shows its time as 9 in the morning i.e. simultaneously with the recording of the fardbeyan. The inquest report of Ramanugrah and B.rijnandan Singh were made at the village at 10.30 and 11 respectively on the same day. The statements of witnesses were also recorded in the case diary on that date itself. The post-mortem of the three bodies were also held on the same day. We are, therefore, completely unable to accept the submission that there was some other FIR giving a different version of the occurrence which was later destroyed and substituted by the present FIR in order to suit the prosecution case. All that can be said in this regard is that the delay was due to the negligence and carelessness of the staff of the police station.

38. In Munshi Prasad v. State of Bihar, : 2001CriLJ4708 the Supreme Court laid down the law in para 14 of the judgment as follows ;

14. In support of the appeal, a further submission has been made pertaining to the first information report (FIR). On this score the appellants contended that delayed receipt of the FIR in the Court of the Chief Judicial Magistrate cannot but be viewed with suspicion. While it is true that Section 157 of the Code makes it obligatory on the Officer Incharge of the Police Station to send a report of the information received to a Magistrate forth-with, but that does not mean an imply to denounce and discard and otherwise positive and trust worthy evidence on record. Technicality ought not to outweigh the course of justice--if the Court is otherwise convinced and has come to a conclusion as regards the truthfulness of the prosecution case, merely delay, which can otherwise be ascribed to be reasonable, would not be itself demolish the prosecution case. The decision of this Court in Shiv Ram v. State of U.P.: (1997 AIR SCW 3996: AIR 1998 SC 49: 1998 Cri. LJ 76: 1997 All LJ 2266) lends support to the observation as above.

39. We are, therefore, satisfied that in the present case the prosecution case cannot be thrown over board simply due to the delayed receipt of the FIR in the Court.

40. On a careful consideration of the materials on record and on hearing Mr. Sharma for the appellant and Mr. Jaiswal for the State, we are satisfied that on the basis of the materials on record the appellant's conviction under Section 302 of the Penal Code and Section 27, Arms Act and the sentences awarded to him for the two offences warrant no interference by this Court in appeal. We find no merit in the appeal and it is accordingly dismissed.

Rekha Kumari, J.

41. I agree.