R.P Sethi, J.— Fairly conceding that in a criminal case while hearing an appeal by special leave this Court cannot ordinarily embark upon a reappreciation of evidence, in view of the concurrent findings Mr Sushil Kumar, learned Senior Counsel for the appellant has contended that without appreciating afresh their testimony, the statements of Rakesh Pravinchandra Kinarivala (PW 1) and Satish (PW 12), the alleged eyewitnesses, cannot be accepted as their presence on the spot is highly improbable. In support of his contention he has referred to circumstances which allegedly show that the FIR had been ante-timed only for the purposes of planting the aforesaid witnesses as eyewitnesses to the occurrence. Non-mention of the FIR number and the name of the witnesses in the inquest panchnama (Ext. 37) has been cited as an instance to probabilise that the aforesaid witnesses were introduced later. Learned counsel has further submitted that as despite taking fingerprints from the place of occurrence and sending it to the expert for his opinion, the prosecution did not produce the opinion of the expert in the court, which amounted to withholding of evidence, the courts should have drawn an inference against the prosecution. It is submitted that the well-settled position of law is that where suppression of evidence is proved, a presumption of law has to be drawn that if such an evidence was actually produced, the same would have gone against the party withholding it. Presence of blood at various places inside the house of the deceased is suggested to be a strong ground to hold that occurrence had not taken place outside the house as deposed by the eyewitnesses but the deceased was killed inside the house by some miscreants. The appellants are alleged to have been implicated merely on suspicion and convicted completely ignoring the submissions made on their behalf.
2. In order to appreciate the submissions of the learned counsel for the appellants, it is necessary to have a résumé of the facts of the case leading to the conviction and sentence of the appellants. Montu, a young lad, nephew of deceased Girish Namdar, had allegedly abducted damsel Namrata, daughter of Mukesh Chandulal Gandhi and sister of accused Sachin (A-2) and accused Duniya (A-3). According to the prosecution, seeds of enmity between the families of the complainant and the accused party had been sown on account of the love affair between Namrata and Montu. The enmity thus conceived is stated to be the motive for the ghastly and macabre killing of Girish Namdar.
3. On 7-2-1993 at about 1.00 p.m Girish Namdar @ Girish Ambalal Gandhi is stated to have come to his farm known as Namdar Farm which is situated near Vatva village about 10-15 kilometres from the metropolitan city of Ahmedabad. The accused are stated to have hatched a conspiracy, in furtherance of which they committed the crime. The accused persons came to the farm in a Maruti Fronti model car. On hearing the blow of horn, the deceased called the visitors inside his house through his cook, Satish (PW 12). Rajesh (A-1) and Duniya (A-3) came inside the house whereas Sachin (A-2) remained in the car. Accused Rajesh and Duniya initiated the talk about the proposed marriage of Montu with Namrata. The issue was hotly debated but as the deceased allegedly did not agree to the proposal, A-1 and A-3 got enraged and agitated. When A-1 started to leave the house, the deceased persuaded him to sit by catching hold of him and offered him wine but A-1 refused to oblige him. As A-1 went out, the deceased also came out of his house to see him off near the sitting portion in front of the house. Again there was some talk between the deceased and A-1 about Namrata. A-1 felt that the deceased was the only obstruction and impediment between the relationship of Namrata and Montu. The deceased consoled him that some conciliation and settlement shall be reached by calling the fathers of the two lovers. It is alleged by the prosecution that A-1 called the deceased on the side and took him near the Maruti car where A-1 called Sachin (A-2) and Duniya (A-3) to take out weapons from the car. Rajesh (A-1) took out revolver from his pocket and Sachin (A-2) and Duniya (A-3) took out sharp-edged weapons from the rear side of the Maruti car with which they started assaulting the deceased. Girish Namdar was given several blows one after the other by the accused persons. Rakesh (PW 1) who was standing there was threatened at the point of revolver by Rajesh (A-1) to get out therefrom and get into the house, since he happened to be the son of the sister of the deceased, to which he obeyed. The cook, Satish (PW 12) who was talking on phone to Uma, the wife of deceased, was intercepted and complainant Rakesh took the telephone from the hands of Satish and told Uma, his aunt, about the assault on Girish by the accused persons requesting her to immediately rush to the spot with somebody. When Rakesh again came out of the house, he was threatened and directed to go inside. He received another telephone call from Smt Uma, his aunt who was enquiring from him as to what was earlier told to her was correct or not. Satish (PW 12) who was a cook was threatened by the accused to run away from the spot. Sachin (A-2) came inside the house of the deceased and snapped the telephone connection and broke the telephone instrument. By the time Rakesh (PW 1) came out from the house, Girish had virtually succumbed to the injuries received by him from the accused persons who had by that time fled away from the scene of occurrence.
4. The first information report was lodged by Rakesh (PW 1) at Vatva Police Station which was registered as No. 49 of 1993 (Exhibit 68) at about 2.40 p.m After completion of the investigation, the charge-sheet was presented against the accused persons before the Metropolitan Magistrate who committed them to the Court of Session for standing the trial for the offences punishable under Sections 120-B, 452, 302 IPC and also under Section 25(1)(b) of the Arms Act and Section 135(1) of the Bombay Police Act. The accused pleaded not guilty and claimed to be tried.
5. In order to prove its case the prosecution produced 14 witnesses and relied upon documentary evidence. The defence of the accused was of total denial. No evidence was led in defence.
6. After the conclusion of the trial and on appreciation of evidence, the trial court found the accused persons guilty for all the offences with which they were charged except the charge under Section 135(1) of the Bombay Police Act. The trial court held that the prosecution had successfully established that deceased Girish died a homicidal death. The injuries sustained by him were inflicted by the accused persons which they had caused after hatching a conspiracy. Rajesh (A-1) was established to be in possession of a revolver without having a licence though the same was not used during the occurrence. The motive for commission of the crime was held established. In appeal, the High Court reappreciated the whole of the evidence and held that
“we have no hesitation to accord our concurrence with the impugned judgment and order, while rejecting the appeal at the instance of the original accused. It has, evidently, emerged from the proved set of facts and circumstances, which preceded the main incident coupled with the deep-seated motive generated out of the cordiality and close relationship between Namrata and Montu that all the three accused persons, who are related to each other, had hatched a criminal conspiracy and they are the real authors of the macabre murder.”
7. FIR (Exhibit 68) is shown to have been recorded on 7-2-1993 at 2.40 p.m in which the time of occurrence is stated to be 1.15 p.m The distance between the place of occurrence and the police station has been mentioned as 4 kilometres. The said information had been recorded on the basis of the statement of Rakesh (PW 1) who vividly explained the details of the occurrence. In the inquest panchnama (Ext. P-37) which is stated to have started at 3 p.m and completed at 3.45 p.m, the name of the complainant or the number of the FIR is not mentioned. However, in the panchnama (Ext. P-32) stated to have been recorded between 4 to 6 p.m, the name of Rakesh (PW 1) and FIR No. 49 of 1993 are specifically mentioned. In his statement, recorded in the court, Rakesh (PW 1) has stated that after about 30-35 minutes of the occurrence, the police came on the spot. The police took him and others to the police station and recorded his complaint marked Exhibit 24/1. He claims to have shown the place of incident to the police. The police had made panchnama of the scene of offence and collected articles from the said place and seized the Maruti car.
8. According to the statement of this witness, he left the place of occurrence in the company of the police after about 30 to 40 minutes of the occurrence i.e 1.45-2.00 p.m He claims to be at the police station up to 4.30 p.m The panchnama Ext. 37 was started to be drawn at 3 p.m and completed at 3.45 p.m, obviously when the aforesaid witness was not on the spot and the FIR was being recorded at the police station. Panchnama Ext. P-37 only refers to the message received from the control room regarding some scuffle having taken place in Namdar Farm. When the police came on the spot consequent upon the information, they found the dead body of Girish lying there. PW 1 and others were sent to the police station for the purpose of recording the statement of PW 1 and registering a case and panchnama was prepared during the aforesaid period. Non-mentioning of the name of the aforesaid witness and the FIR number is, therefore, obvious. Learned counsel for the appellants referred to the statement of Abdul Rehman Munshi (PW 14) who has stated on oath that he received information from the control room at 2.10 p.m that in Namdar Farm near Vatva there has been a big quarrel. He along with other police officials came on the spot where they saw the dead body of Girish Namdar. On inquiry, nephew of the deceased lodged a detailed complaint which was sent to Vatva Police Station for registration. The report was written by one Mr Jadhav. The complaint was sent through a policeman at the police station. After recording the complaint and registering it, the scene of occurrence was visited and inquest panchnama of the dead body was made, which is Exhibit P-37. In the cross-examination, the witness has denied the suggestion that the recording of the complaint in the case started at 4.00 p.m and was over by 4.45 p.m Pointing out to the contradiction in the statement of PW 1 and PW 14, the learned Senior Counsel submitted that the circumstances of the case probabilised that the FIR was ante-timed to facilitate the introduction of the alleged eyewitnesses.
9. It is true that PW 1, in his statement, has stated that he was taken to the police station where the complaint was recorded. There does not appear to be any material contradiction between his statement and the statement of PW 14 except that IO has stated that complaint though lodged before him was sent through the policeman at the police station. He has not contradicted the version of PW 1 that he had gone to the police station along with the other policemen. There is nothing on the record to show that the investigating officer had known the FIR number of the case at the time when he recorded panchnama Ext. P-37 or at the time of recording of the aforesaid panchnama PW 1 was present at the place of occurrence. Possibly, it appears that after taking his statement PW 1 was sent to the police station where detailed complaint marked Ext. 24/1 was recorded and he remained there at the police station up to 4.30 p.m or 4.55 p.m and during that interval panchnama Ext. 37 was recorded at the spot. Otherwise also, mere non-mentioning of the number of crime registered upon FIR or name of the prosecution witness in Ext. P-37 would not lead the court to believe that the FIR had been ante-timed in view of the unequivocal, reliable and confidence-inspiring testimony of PW 1. The trial court in para 39 of its judgment dealt with this aspect of the matter and found that on the date of the incident firstly police staff of Aslali Police Station and thereafter persons of Ahmedabad city (Vatva) Police Station had come which means police from Aslali and Vatva Police Stations had come at the scene of occurrence. Before recording the complaint there was some discussion whether the complainant would go to Vatva Police Station or Aslali Police Station. At the time of recording the complaint Satish (PW 12) and family members of Girish were stated to be present. Abdul Rehman (PW 14) in his cross-examination has stated that before he reached Namdar Farm, police of Aslali Police Station had come there. Namdar Farm is situated where the jurisdiction of the two police stations, namely, Aslali and Vatva meets. It was decided on the spot to get the complaint recorded at Vatva Police Station. In this regard the trial court held:
“A question has been raised in this case, why in inquest panchnama, there is no mention of the name of Rakesh and crime register number? If we look at the inquest panchnama which is completed at 3.45, there is no mention of the crime register number. But thereafter within 15 minutes, the panchnama of the scene of offence is prepared, there is mention of crime register number and the sections of offences and who is the complainant is given. From this, it cannot be said that the inquest panchnama is the first information report. In that there is a possibility that on inquiry from Rakesh, the complaint was recorded, it was sent to Vatva Police Station for registration of the offence and on the other side, the work of preparing inquest panchnama was immediately started. What is correct and what is wrong, can be decided from the facts. In this case at that time the complaint was started recording, and where it was recorded and where it was started recording and in that if there is some miscalculation of time in recording complaint, preparing inquest panchnama and panchnama of the scene of offence, of where or at which place the complaint was recorded, in that there is no scope for saying that looking to the facts of the case, a false case has been concocted and therefore, the facts stated by Umaben, complainant and Satish Maharaj get support from medical evidence. As stated above, when the police came, all the information is received, cannot be said to be incorrect or wrong. The police had reached the farm on the information received from the control room that there is quarrel in the farm. When they reached the farm, there was truth in it. And the persons who can give information regarding the incident were present at the scene, so there was no question of asking as to who had informed the control room. And the persons present there, on asking as to who knew about the incident, it was known that Rakesh was knowing about the incident, it can be said that the police had received first information report from Rakesh. Again in this case, it transpires that there was message from the control room, does not mean that there was telephonic message or information. But the information was given by wireless, that fact is disclosed. Therefore, why was the message not noted down and what was the message on phone? There is no scope for receiving other particulars and thereafter concocting a false story. There is no scope for the same. If message is received that there is quarrel on the farm and if the police reaches there and so that particular message is only the first information and if thereafter any complaint is recorded, it cannot be said that the same cannot be treated as first information. It also cannot be said that in this case the inquest panchnama Ext. 37 was started and completed, that is the first information because there is sufficient evidence that before the same was started writing, before that the police had received so much information. In this inquest panchnama, there is no name of the complainant or the accused and before recording complaint, directly inquest panchnama cannot be prepared. Lastly, if nobody is present and if Rakesh or Satish Maharaj would not have been present there, even complaint of Umaben would also be recorded. In this case when there is mention of presence of Umaben in the inquest panchnama, it cannot be said that no complaint was recorded and only panchnama was drawn. To the most, it can happen that after recording the complaint, Rakesh can be sent for registration of the complaint to the police station, who is hereby as the complainant. The person who has to lodge a complaint, has to lodge the complaint, put his signature, receive its copy and that would take some time and after Rakesh was sent there, in the meanwhile inquest panchnama might have started. And after Rakesh must have returned from police station after lodging the complaint, the panchnama of the scene of offence must have been drawn and after starting panchnama of the scene of the offence, it is known that the complaint is registered, in the said panchnama note about it must have been made. In this connection when inquest was started, the police has stated one fact that, what is the reason for doing inquest? On what basis or information the said dead body was found at that place? And only fact is noted in that. On 7-2-1993 they were present at Vatva Police Station, the Police Inspector, who had given particulars about this inquest, as per his say, when he was present at Vatva Police Station, at about 14.40 they had received message from the control room that there is a quarrel in Namdar Farm in Vatva village. So they should reach there. Therefore, immediately they came to Vatva in Namdar Farm. On reaching Namdar Farm, they saw that there was murder of Girish Ambalal and his dead body was lying there. In that, the facts which are stated that when they reached the farm and the dead body was lying in murdered position and the particulars regarding the same were noted down and not the particulars about the dead body lying at the time and was seen by them at that time. In that inquest also, the injuries caused to Girishbhai are noted. And there is opinion to know the definite reason about the death of Girishbhai, the dead body is sent to Civil Hospital for post-mortem examination. An opinion in that regard is given, by panchas and panchnama is prepared to know the exact reason for which injuries, death of Girishbhai is caused. For that medical evidence is necessary. For that it was decided to send the dead body for post-mortem examination. In this way, inquest panchnama is FIR which cannot be meant like that. In this way considering the timely evidence, it is difficult to hold that the prosecution case against the accused is false.”
10. On this aspect the High Court held that merely,
“on account of some irregularities in mentioning the names or noting the timing during the course of investigation by the prosecution or some discrepancies and contradictions, which are at the micro level could not be said to be sufficient and efficient to discard and dislodge the otherwise weighty and very important, serious and sound testimony of the eyewitness, PW 1, Rakesh, one of the close relatives of the deceased, whose presence, we have found, quite natural and whose evidence is, also, found to be quite reliable and dependable and, rightly, accepted by the trial court”.
After going through the testimony of the prosecution witnesses, particularly those of PWs 1 and 14, perusing the record including FIR No. 49 of 1993, Exhibit 37 and Exhibit 32, we are of the opinion that the plea of ante-timing of the FIR is a figment of the imagination of the defence and not a reality. Assuming that the FIR number and the name of the complainant was known at the time of recording of panchnama (Ext. P-37) and it was not mentioned therein, such circumstance would not probabilise the defence version that the FIR had been ante-timed, in view of the cogent, reliable and confidence-inspiring testimony of Rakesh (PW 1), Satish (PW 12) and Umaben (PW 10).
11. Taking advantage of the statement of Dr Pratik Navjibhai Patel (PW 9) in which, during cross-examination, he had stated that the death had occurred within 9-12 hours before the post-mortem examination, the learned counsel has submitted that the deceased must have died much before 1.15 p.m, as concededly the post-mortem examination was conducted between 6.10 p.m to 7.00 p.m A perusal of his statement shows that in reply to a further question in the cross-examination the aforesaid witness had stated “it may be that the death might have occurred between 9-12 hours. This 9 to 12 hours means 9 to 12 hours before the time I started the post-mortem and completed the post-mortem”. At another place the said witness had stated “I can say that probably the death of the deceased might have occurred within about 12 hours from the time of starting the post-mortem examination.” The doctor had formed his opinion on the basis of rigor mortis and the lividity found at the time of the post-mortem. There is, therefore, no medical expert's opinion about the exact time of death. Otherwise also, the opinion of the doctor cannot be substituted for the statement of the eyewitnesses who have been believed by both the courts. From the statements of Rakesh (PW 1), Umaben (PW 10) and Satish (PW 12) it is established that the deceased was alive up to 1.15 p.m and had died after receiving about 30 injuries on his person, mostly with sharp-edged weapons. Even on this ground also it would not be probable to hold that the first information report had been ante-timed.
12. Both the trial court as well as the High Court have found on facts that the first information report was lodged without delay and its copy dispatched to the Magistrate. The delay of receipt of the copy of the FIR by the Magistrate, if any, was held to have been properly accounted for by the prosecution. Abdul Rehman (PW 14) who is the investigating officer had stated that after registration of the case a report under Section 157 CrPC was also sent. The circumstances emerging from the prosecution evidence show that the occurrence had taken place at about 1.15 p.m, the information of the scuffle was received by the police at 2.10 p.m, Smt Umaben (PW 10) reached on the spot at 2.30 p.m and Rakesh (PW 1) sent to the police station for recording the FIR at 2.40 p.m The inquest (Ext. P-37) was prepared between 3.00-3.45 p.m and inquest (Ext. P-32) between 4 to 6 p.m The events of circumstances narrated by the witnesses do not leave any doubt in our mind to hold that the occurrence had actually taken place at about 1.15 p.m in consequence of which Girish Namdar died and the FIR was registered on the basis of the statement of Rakesh (PW 1) at 2.40 p.m in Police Station Vatva.
13. Relying upon the judgment of Meharaj Singh (L/Nk.) v. State of U.P (1994) 5 SCC 188 the learned counsel appearing for the appellants has submitted that FIR in a criminal case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led in the trial. The object of insisting upon prompt lodging of the FIR is to obtain information regarding the circumstances in which the crime was committed including the names of actual culprits and the part played by them, the weapon of offence used as also the names of the witnesses. One of the external checks which the courts generally look for is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. The absence of details in the inquest report may be indicative of the fact that the prosecution story was still in embryo and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultation and was then ante-timed to give it a colour of promptly lodged FIR. The reliance of learned counsel for the appellant on Meharaj Singh case (1994) 5 SCC 188 is of no help to him in the instant case inasmuch as all requisite details are mentioned in panchnama Exhibit P-32. Mere omission to mention the number of the FIR and the name of the complainant in Ext. P-37 has not persuaded us to hold that the FIR was ante-timed in view of the peculiar facts and circumstances of the case as noticed by the trial court, the High Court and by us hereinabove.
14. It has also been argued on behalf of the appellants that for withholding of opinion of fingerprint expert, adverse inference be drawn against the prosecution. It has come in evidence (Ext. 32) that the fingerprint expert was present on the spot, who had taken the prints from the pieces of broken glass and some other articles lying in the farm of the deceased. It is also not disputed that the report of the fingerprint expert has not been produced in the case. The withholding of the report of the fingerprint expert, if any, would definitely cast a doubt on the prosecution version and presumption of such report being against the prosecution has to be drawn. However, in the facts of the case we find that despite taking doubted fingerprints from the spot, the investigating officer had not taken fingerprints of any of the accused. The investigating officer has stated in the court that on 25-2-1993 total 31 items were sent for examination. In Ext. 64 there is a note at Item 9 of having sent broken pieces of glass at No. 11 having found chance print and Item 12 of having found another chance print. The pieces of glass sent show that there was Group ‘B’ blood which was the blood group of the deceased. In the absence of fingerprints of the accused persons no fingerprint expert could have given any opinion regarding the chance prints found on glasses and other articles. It appears that as no fingerprints for comparison were taken or sent, there is no possibility of any report of the expert being in existence in that regard, which was allegedly suppressed warranting the drawing of a presumption against the prosecution. It might have been a lapse on the part of the investigating agency for not taking the fingerprints of the accused persons but merely because the fingerprint expert had taken some prints from the glasses would not justify in holding that there existed a comparative fingerprint expert report which was allegedly suppressed or withheld by the prosecution.
15. Learned counsel then drew our attention to the fact that bloodstains were found on a number of places in the house of the deceased which suggested that the occurrence had not taken place outside the house as alleged by the prosecution and that as the deceased was indulging in gambling there was a probability of some other people having committed the offence. In this regard our attention was drawn to an advertisement (Ext. P-31) which, according to the defence, probabilised that the deceased was indulging in satta, betting for riots by anti-social elements, with reference to the riots of Ayodhya. He is stated to be living in the area where people belonging to the Muslim community lived. His indulgence in satta relating to riots with respect to Ayodhya is suspected to have infuriated the Muslim community who might have committed the crime in his house and the prosecution wrongly involved the appellants in the crime merely on suspicion, allegedly on account of the dispute existing with respect to the love affair between Montu and Namrata and some complaint earlier filed against the accused. Such a plea cannot be accepted because the advertisement and the public notice (Ext. P-31) has not been duly proved. There is no evidence on the record to show that the deceased had ever indulged in satta business. PW 1 in the statement has admitted that a news was published in the newspaper that the deceased used to bet as to whether and when the riot incident would break and in turn notice was published allegedly on his behalf that such allegations were false and if anyone proved the same, he would be paid Rs 10 lakhs. All such evidence referred to by the defence with respect to the alleged indulgence of the deceased in betting is based upon hearsay and not legally admissible in evidence. Therefore, no inference on that basis can be drawn against the prosecution. Otherwise also both the trial court and the High Court have found cogent explanation and reasons for the presence of the blood at various places in the house of the deceased. In the absence of any evidence to the contrary there is no occasion for this Court to interfere with the finding of fact arrived at on proper appreciation of evidence.
16. After going through the whole of the evidence, the other records produced in the case and the judgments of the trial court and the High Court, we find no reason to interfere in the concurrent findings of fact arrived at against the accused holding them guilty for which they have been convicted and sentenced.
17. There is no merit in this appeal, which is accordingly dismissed.