Uttam Chand and Others vs State of J. and K.

A.B. Qadir Parray, J.—This is a conviction appeal filed against the conviction and sentence passed by learned Session Judge, Kathua in

case file No. 11/ Sessions on 25-7-1980.

The facts in brief which have given rise to the present appeal are that the person of the accused had some altercation with the complainant party

over some transaction of demand of money viz. Rs. 4.50, when one of the accused Uttam Chand came behind and inflicted a hockey blow on the

head of the deceased who sustained injuries and this occurrence is alleged to have taken place on 2-4-1978. It is also alleged that after the

deceased received injury, he never reported the matter to the police nor any report was made regarding this occurrence with the concerned police.

Not only that he instead of going to the hospital to be got treated, by a regular doctor/ Surgeon, the deceased in fact had gone to a quack in the

village who bandaged him. On enquiry by the said doctor/quack, the deceased told him that he sustained injury by a fall. Subsequently the

deceased was treated by Gulzar Singh, PW 7 on 16-4-1978. The matter was not reported to any policy agency by any person namely village

Chowkidar, Lumberdar, or Sarpanch and even the witness who were witnessing the whole episode as per averments on the file have not reported

the matter to the police. The deceased is alleged to have died on 19-4-1978 and was cremated. The report about all this seems to have been

lodged on 9-5-1978 i.e. after 37 days. The only explanation furnished for delayed lodging of FIR is that the persons who were to report the matter

to the police were under heavy threat from the accused party and there is no evidence on record to suggest that the accused persons are habitual

offenders or that they have made a gang which indulges in such crimes and are hurling and administering threats to their preys not to lodge reports

of alleged excesses.

On the other hand, it has been brought on record that the deceased as well as the accused belong to a small tribe 'Bazigar' who are infact

earning their livelihood by showing Magic tricks/ shows in the villages. So there is nothing on record to suggest that the threat as alleged was

extended by the accused to the complainant party or eyen to the persons who were seeing and witnessing the episode as same is alleged to have

taken place on 2-4-1978, when the accused were returning from a local village fair and the general public was passing. It was at about 5.30 on the

day at national High Way that the accused were called by Mulk Raj and asked to pay amount which was to be recovered from their elder brother

Harnam Das. The report about the matter has been ladged after 37 days which casts a great doubt and the prosecution story cannot be relied and

is tainted with motives and possibilities of after-thought and concoctions, cannot be ruled out, just to involve the accused who were demanding

repayment of Rs. 4.50 from the complainant party.

Secondly the matter also does not show that any medical evidence worth the name has been produced arid placed on record to show that the

injury inflicted allegedly on 2-4-1978 was the injury which resulted in the death of the deceased on 19-5-1978. Merely saying that a hockey blow

was inflicted by one of the accused on the head of the deceased, but no evidence is being produced or has been produced to show that the injury

was of such a nature which could have ordinarily caused death of the deceased or that the injury was inflicted with intention to cause the death. It

would have been the medical evidence which could have answered these querries. But all, this is shrouded by the statement made by deceased

himself to Narinder Singh who gives the first aid to the deceased when he reiterates before him that the deceased was injured due to fall. This is

only to implicate the accused persons in this false case which Came to be registered after 37 days of the alleged date of occurrence. Mr. Thakur

has taken me through Thulia Kali Vs. The State of Tamil Nadu, wherein their lordships of the appex court have held :

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 report can hardly be overestimated from the stand point of the accused. The object of insisting upon

promt 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 scheme

of occurrence. Delay in lodging the first information report quite often result in embellishment which is a creature of after thought. 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 the lodging of the first information should be

satisfactorily explained.

In the case before their lordships of the appex court, the delay in lodging the FIR was only 20 hours, even though the police station was only

two miles away from the place of occurrence and their lordships were of the opinion that it is unsafe to base conviction upon the evidence. In this

background and the law laid down by the apex court, in the present case the FIR has been lodged after 37 days and no evidence worth the name

or explanation has been furnished by the prosecuting agency as to what is the cause in delay of lodging the FIR. The pretext for delay is not tenable

in law, unsustainable on facts.

Mr. Thakur further submit that as per authoritative pronouncements of the appex court in case eye witness are not forthcoming immediately after

the occurrence has taken place, their statements are not to be accepted. Here in the case in hand, the averment is that two persons who are eye

witnesses of the alleged occurrence did not come before the police or before the Investigating agency till more than 37 days have passed, so

whatever statements they have given, cannot be taken on face of it and are not to be relied upon as those are tainted with prejudices and are not

versions of independent eye witnesses, for obvious reasons that the statement can be concocted and showing their presence at time at the place of

occurrence may be an after-thought just to implicate the accused. In support of his contentions, Mr. Thakur has referred Ravulappalli Kondaiah

and Others Vs. State of Andhra Pradesh, .

The other discrepancies in the statements of witnesses have also been pointed out by Mr. Thakur, but I need not discuss those discrepancies.

Mr. Thakur further projects that the person of the accused stand convicted in an offence, of which they have not been charged. As per versions

given by Mr. Thakur, accused were charged u/s 304 of IPC, but have been convicted u/s 304-11, 202, 576 RPC. The argument raised by Mr.

Thakur is not tenable in view of the provisions of Section 237, Cri. P.C. which reads :-

When a person is charged with one offence, he can be convicted of another :- If in the case mentioned in Section 236, the accused is

charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the

provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

So it is clear that in case a person is charged of an offence, he can be convicted for allied offences of which he was not charged. On that score

the argument advanced by learned counsel for the appellant is not accepted and is rejected.

Thus taking the arguments in the case and appreciating the evidence and in light of the law laid down by the apex court, the appeal is accepted

and the conviction and sentence passed by the court of learned Sessions Judge, Kathua is set aside.

Before parting with the file, I would like to place on record my anxiety that I was not assisted by the State counsel despite the fact that the

matter had come up for arguments yesterday, when nobody was present for the respondent and the case was ordered to be listed today, but today

also, nobody appeared for the respondents despite they were send for. Today the case was heard without the State counsel and orders passed

here will in above.