Naresh Kumar vs State of Haryana

S.S. Sudhalkar, J.—The petitioner in this case has been arrested in connection with F.I.R. No. 173 dated 21-12-1995 of Police Station Chapper, District Yamuna Nagar, for the offences under Sections 302/452/201/148 and 140 of the Indian Penal Code and he has given this application for being released on bail.

I have heard the learned Advocates Shri Baldev Singh, for the petitioner and Shri R.S. Mann for the Slate of Haryana.

The allegation against the petitioner is that he along with five others went to trespass into the house of Mandip. One of them, namely, Girdhari Lal gave a gnndassi blow on the head and mouth of Mandip who fell down. When his mother Usha Thakur came to rescue her son, she was given gandassi blows in her head by Girdhari Lal. Sapana was also attacked with iron pipe by Happy. All the three injured died at the spot. Girdhari Lal sprinkled kerosene oil on them and partly burnt their dead bodies.

The learned counsel for the petitioner argued that name of the petitioner does not figure in the FIR. The FIR is given by the Chowkidar whose name is Phool Chand. The translated- version of the FIR has been quoted in paragraph I of the petition, lie had stated that in the month of April, Mandeep alias Prince son of Usha Thakur and who has been residing in Mustfabad for several years had abducted Sapna daughter of Girdhar Bakshi and regarding that mailer police had also taken action. However, subsequently, Sapna made a statement in the High Court in favour of Mandeep alias Prince against the wishes of her parents and both of them started living as husband and wife. It is further stated in the FIR that earlier they used to reside somewhere else and used to visit Mustfabad on some occasions. When Mandeep used to bring Sapna to the house of his mother Usha Thakur there used to be some quarrel between him and the parents of Sapna. About a month back Mandeep started living at the house of his mother at Mustfabad along with Sapna,

It is further stated in the FIR that on the morning of 21-12-1995, he came to know in the village that Usha Thakur, her son Mandeep alias Prince and his wife Sapna had been killed in their house during the night and after killing them in order to destroy the dead bodies, the same have been put to fire. The complainant further stated that he went to the spot and found the gate of the house of Usha Thakur which open in the street towards the house of Girdhari son of Vishnu Dull Bakshi, broken and in the Court-yard dead bodies of Usha Thakur, Mandeep and Sapna were lying there. He had further slated in the FIR (hat he was certain that Sapna''s parents relations, Girdhari Lal and his sons and Girdhari Lal''s friend had committed this murder and put the same to fire by hatching conspiracy.

From this version in the FIR., it has been argued by the learned counsel for the, petitioner that FIR does not contain she name of the petitioner and the person giving the FIR had not seen the incident and, therefore, there is no prima facie evidence for which the petitioner can be tendered in jail till the trial is over.

As against this, the learned Advocate for the State has argued that the name of the petitioner figures in the statement of witness Parveen Kumar whose statement was recorded on the very day i.e. 21-12-1995 and that the petitioner was one of the persons going to the house of the deceased and was carrying "lathi" with him.

Normally, if a person who gives the FIR. is not an eye-witness, then it is quite natural that he may not name all the accused and stale as to what part they have taken. On the contrary, it is found that when the FIR. was lodged no effort has been made to make the complainant pose as an eyewitness.

Regarding the further statement, the learned Advocate for the petitioner vehemently argued that the name of the eye-witness does not figure in the inquest report and, therefore, the statement has been got up subsequent to the inquest report and, therefore, the same should not be considered at all as it is a got up statement. .

The learned Advocate for the Stale has argued that it is not necessary that'' the inquest report should contain the names of the eye-witnesses or the witness whose statement has been recorded prior to the inquest report,

To get the exact picture, it will be proper to quote Section 174 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code), by which the provision has been made for performing inquests upon dead bodies. It reads as under:

" 174. Police to enquire and report on suicide, etc.

(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District of Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in She presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation and draw up a report of apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and staling in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.

(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the sub-divisional Magistrate.

(3) When-

(i) the case involves suicide by a woman within seven years of her marriage; or

(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman: or

(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf: or

(iv) there is any doubt regarding the cause of death: or

(v) the police officer for any other reason considers it expedient so to do,

he shall, subejct to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appoined in this behalf by the State Government, if the state of the weather and the distance admits of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.

(4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub-divisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State Government or the District Magistrate."

It has been vehemently argued by the learned Advocate for the petitioner that inquest report should contain the names of the eye-witnesses. He has cited before me the case of, Balaka Singh and Others Vs. The State of Punjab, . In that case, the Supreme Court observed that the High Court had acquitted the accused. The first and foremost reason given by the High Court that although the inquest report was prepared by the A.S.I. at about 2.30 a.m. in the morning yet the names of the four accused did not find place in the body of the inquest report which was made on the basis of report made to the police by the informant Banta Singh. It was also observed that names of the accused were of course mentioned at the top of the inquest report but the High Court found that this appears to have been in addition made by the Assistant Sub-Inspector to help the prosecution and to bring the inquest report in conformity with the FIR. The Supreme Court held that the prosecution was not able to give any reasonable explanation for the important omission in the inquest report.

Another judgment cited before me by the learned Advocate for the petitioner is of Meharaj Singh (L/NK.) v. State of U.P. 1994 SCC 1390 : AIR 1994 2210. It has been held by the Supreme Court that even though the inquest report, prepared u/s 174 of the Cr. P.C. 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 be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR.

As against this, the learned Advocate for the State of Haryana has cited a judgment of larger Bench of the Supreme Court in the case of, Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, . The Supreme Court held that there was no force in the submission of the counsel for the appellant that the evidence of eye-witnesses could not be relied upon as their names did not figure in the inquest report prepared at the earliest point of time. The Supreme Court in that case relied on its earlier judgment in the case of, Pedda Narayana and Others Vs. State of Andhra Pradesh, , in which it has been observed that a perusal of this provision would clearly show that the object of the proceedings u/s 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. It has been further observed therein that the question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to be foreign to the ambit and scope of the proceedings u/s 174 of the Code: It has been further held by the Supreme Court that in these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report. The Full Bench of the Supreme Court has relied on these observations of the earlier two Judges judgment in the case of, Podda Narayana (supra).

The judgment in the case of, Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, being a judgment of the larger bench, the principles laid down in the said judgment shall prevail over the other judgments.

Following the principles laid down in the said judgment it has to be held that it was not necessary that the inquest report should mention the name of the eye-witness whose statement is recorded u/s 161 of the Code.

When this is the position, the objection taken by learned Advocate for the petitioner to the statement of the eye-witness Parveen Kumar cannot be sustained.

The accused was one of the persons going to the house of the deceased and he was also carrying "lathi" with him and it appears at this prima facie stage that all these persons had gone with an intention to commit murders and one after the other three persons were murdered. The petitioner was not a by-stander on the road, but he had gone at the house of the deceased along with other persons, including Girdhari Lal and Happy. He was also not empty handed. Therefore, it is not possible at this stage to say that he will not be charged for the offences u/s 302 read with Section 149 of the I.P.C. or u/s 302 read with Section 34 of the I.P.C.

This is, therefore, a serious case in which the accused/petitioner can be charged for the triple murders. Therefore, I do not find it proper to release the petitioner on bail. Of course, it has been submitted by the learned counsel for the petitioner that in the statement of Parveen Kumar one Kala''s name appeared this should not be a ground for releasing the petitioner on bail in such a serious case. The reasons for not challenging Kala may, if so required be separately dealt with if any petition is made before the competent Court against him.

Because of the above reasons, this bail application deserves to be dismissed and is hereby dismissed.