JUDGMENT

J.P. Desai, J.

1. Balu Ramu Macchi, the appellant in this appeal challenges the judgment of the learned Additional Sessions Judge, Sural whereby the learned Additional Sessions Judge convicted him of the offence punishable under Sec. 302 I.P.C. and sentenced him to suffer imprisonment for life. The facts of this case, as alleged by the prosecution may be briefly stated as follows:--

The deceased Dineshchandra Nagindas Chauhan was having-illicit relations with the sister of this Balu Ramu Macchi and on account of the same, there used to be quarrels between the deceased and Balu Ramu. On 8-4-1982 the deceased and the accused were seen together in a fair which was held at village Bodhan, Taluka Mandvi, District Sural. They were seen going towards the merry-go-round. Some time thereafter the accused gave blows to Dineshchandra by a Gupti which was with him and thereafter he ran away. Some persons who were near about the scene of the incident saw the accused giving blows to the deceased. One Bhogilal Maganlal Patel who happened to be the brother of police Patel Shantilal Maganlal was also there in the fair and he did not see the actual assault on the deceased but he saw the accused and the deceased going together towards the merry-go-round and sometime thereafter, heard hue and cry about the murder of Dineshchandra and his attention was drawn in that direction and he saw the deceased lying dead at some distance from the merry-go-round and the accused running away towards the river side. This Bhogilal then went to the place of his brother and told him what he had seen. Shantilal contacted the P.S.I. of Mandvi Police Station who was on Bandobast duty in the fair and he gave complaint to the P.S.I. about this incident. X X X

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5. The evidence of this Bhogilal before the Court is that when he went to the fair, he saw the accused and the deceased going towards the river when he was standing near the merry-go-round. His say in his evidence further is that when he went to the spot where Dineshchandra was lying dead, he saw Balu running away. The evidence of the police Officer Natverlal Veljibhai which we have discussed a little above shows that this Bhogilal did not state before him that when he was standing near the merry-go-round, he saw the accused and the deceased going towards the river-bed or that he had seen the deceased and the accused going ahead of him in the fair. This would naturally create an impression that the witness has not stated before the police officer at all about seeing the accused and the deceased before the actual incident. The learned Additional Sessions Judge in his judgment at para 16 referred to the police statement of this witness and observed that the witness has stated therein that he had seen the accused and the deceased going together and that he had seen the deceased lying dead and that he had seen the accused running away. It is not understood how the learned Additional Sessions Judge referred to the police statement of this witness. A statement of a witness which is recorded by a police officer during the course of investigation can be used only for a limited purpose as laid down in Sec. 162 of the Criminal Procedure Code. With a view to find out whether there was any such omission altogether in the statement of the witness recorded by the Police Officer, we have looked into a copy of the statement of this witness recorded by the Police Officer which is in the file of police papers in the record of the trial Court. It appears from the said statement of Bhogilal as recorded by the Deputy Superintendent of Police that the witness has not stated therein that he saw the deceased and the accused going towards the river when he was standing near the merry-go-round and he has also not stated that before that he saw the accused and the deceased going ahead of him. It appears from the said statement that the witness has stated therein that when he was going back towards his home from the fair at about 1 p.m. to 1-15 p.m. he saw the accused and the deceased passing on the road by the side of the shop of Gaman Ghanchi and going towards the merry-go-round and when he was passing in front of the shop of Gaman Ghanchi sometime thereafter, he saw people running towards the river from the merry-go-round and so he also went there and saw Dineshchandra lying there in injured condition on the road. He has also stated therein that at that time he saw Balu Ramu running away towards the house of his brother Nagin. This is what is stated by the witness before the Police Officer. It would thus appear that the witness did not omit to state altogether about his having seen the accused and the deceased together before the incident. The only difference between the statement before the police and the statement before the Court is that while before the Police Officer the witness stated that he saw the accused and the deceased passing on the road in front of the shop of Gaman Ghanchi and going towards the 'Chagdol' he stated before the Court that when he was going towards the merry-go-round, the accused and the deceased were going ahead of him and that when he was near the merry-go-round, he saw the deceased and the accused going towards the river. The difference, if any, is as regards the spot where the witness was standing when he saw the accused and the deceased together. The distance between the merry-go-round and the shop of Gaman Ghanchi is hardly about 50 paces. Bhogilal Maganlal himself has stated in cross-examination that the merry-go-round was about 50 paces away from the shop of Gaman Ghanchi. It cannot be said that there was any such contradiction between the say of this Bhogilal before the Court as compared to his say before police as regards the spot from where he saw the accused and the deceased going together. It cannot be said that Bhogilal has made any substantial improvement in his version while giving evidence before the court so far as this aspect is concerned. Similarly, the witness stated before the Court that he saw Dineshchandra lying on the ground having bleeding injuries and then he saw Balu running away and then he informed his brother. He was asked whether he stated before the Police Officer that he saw Balu running away after he saw the dead body and he stated that he did not recollect The evidence of Natverlal Patel Ex. 39, shows that the witness did make such a statement before him. We fail to understand what is the contradiction between these two statements. Even in his deposition before the Court he states that he saw Dineshchandra lying on the ground having bleeding injuries and then he saw Balu running away. In fact, there is no contradiction at all and it is not understood why such a question was put to the witness and permitted by the learned trial Judge. So far as the earlier contradiction about the spot from where the witness saw the accused and the deceased is concerned, the question was put to the witness in such a way as to create an impression that he had not made any statement before the Police Officer about his having seen the accused and the deceased together before this incident. On having looked at a copy of the statement, it appears that it is not so. The learned trial Judge, of course, committed an error in referring to the police statement while writing his judgment. In fact, it was his duty to have looked at the police statement when the omission was sought to be put to the witness when he was in the box. The question as put to him ought not to have been allowed to be put. In fact, the question should have been put to the witness that he had not seen the accused and the deceased going ahead of him and had not seen the accused and the deceased going towards the river-bed from the merry-go-round and had not made such a statement before the Police Officer but had made a contrary statement before the Police Officer to the effect that when he was returning home from the fair, he saw the accused and the deceased going towards the fair passing on the road by the side of the shop of Gaman Ghanchi. Anyway, on having a look at the statement of this witness recorded by the Police Officer we are inclined to say that there was, in fact, no omission in the police statement as suggested in cross-examination but there was a contradiction as pointed out above. It would probably amount to an omission if there was a time-lag or a considerable distance between the two spots. Here, there is practically no time-lag and the distance between the shop of Gaman Ghanchi and the merry-go-round is only a very short one. As stated earlier, in view of this it can only be said to be a minor and insignificant contradiction but certainly not an omission.

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7. The learned advocate Mr. Shethna urged that there was inordinate delay on the part of the Police Officer in sending the copy of the F.I.R. under Sec. 157 of the Criminal Procedure Code to the Judicial Magistrate and that the offence was registered on 8-4-1982, while the F.I.R. reached the Judicial Magistrate on 13-4-1982. The F.I.R. was to be sent to the Judicial Magistrate, Mandvi who holds Court at Mangrol in the same District for some days every month. But even then the delay of five days on the face of it can be said to be grossly inordinate. It is difficult to understand how so much time was taken for the F.I.R. to reach the Judicial Magistrate in the same district. The prosecution has not made any effort to explain this delay. The Police Officer Bharatkant, Ex. 31, when asked to explain this delay gave evasive replies. We are constrained to observe here that there is delay of five days and the delay has not been explained. The question, however, is whether simply because there was delay on the part of the Police in sending the F.I.R. to the Judicial Magistrate, First Class, we should look at the evidence of Bhogilal with any suspicion. The question as to what is the effect of the delay in sending the F.I.R. to the Judicial Magistrate will depend upon the facts and circumstances of each case. In a given case, delay of some hours may assume importance, while in a case like the present one, even the delay of five days may not adversely affect the prosecution case. The learned advocate Mr. Shethna in this connection drew our attention to a decision of the Supreme Court reported in State Of Punjab v. Tarlok Singh., MANU/SC/0197/1970 : AIR 1971 SC 1221 : (1971 Cri. L.J. 1063), wherein the relevant discussion about the delay in sending the F.I.R. to the Magistrate is made at para 5. It appears that the copy of the first information report purported to have been lodged at 3-45 p.m. did not reach the Magistrate at Dasuya till 8 a.m. the next day, even though it was sent through a special messenger, the distance between the two places being 15 to 16 miles. The inference sought to be drawn in that case was that the report was not lodged at 3.45 p.m. but at a much later hour, after the police had arrived at the scene of occurrence and there were consultations to decide what version should be put forward and who should be implicated for the murder. The prosecution did not make any effort to explain the delay in that case and, therefore, the High Court was inclined to take the view that such delay would cast doubt on the prosecution version that the Report was lodged at 3.45 p.m. without lapse of unnecessary time. The said view of the High Court was confirmed by the Supreme Court. In that case, it appears from the discussion made at para. 7 of the judgment of the Supreme Court that looking to the facts of that case, it appeared that the prosecution wanted to mould the story as per the statement of one Gurbachan Singh and, therefore, the F.I.R. was, in fact, recorded later on, though it was made to appear that it was recorded at 3.45 p.m. It was on the peculiar facts of that case that the adverse inference was drawn against the prosecution on account of delay in sending the F.I.R. to the Magistrate, for which no explanation was offered by the prosecution.

8. Similarly, in the case of Balak Singh v. State of Punjab, MANU/SC/0087/1975 : AIR 1975 SC 1962 : (1975 Cri. L.J. 1734), to which our attention was drawn by the learned advocate Mr. Shethna, it appears that names of four out of nine accused did not find place in the body of the inquest report, while the names of all were mentioned in the F.I.R. and, therefore, an inference was drawn that the F.I.R. was written after the inquest report was prepared. Looking to these peculiar facts of that case, it is difficult to say that this decision is of any assistance in the present case. In that case also, adverse inference was drawn on account of the delay in sending the F.I.R. to the Magistrate, but it was, as stated above, because of the fact that the names of some of the accused which were not found in the inquest report were mentioned in the F.I.R. The law does not require mentioning of the names of the accused in an inquest report. Hence absence of the names of accused in an inquest report cannot lead us to any inference against the prosecution. In that case, the names of some of the accused were written in the inquest report and, therefore, an adverse inference was drawn when more names appeared in the F.I.R. and the F.I.R. reached the Magistrate after delay which was not explained. In the present case, the story told by witness Bhogilal is most natural and probable, as stated by us earlier. His statement was also recorded on the same us (sic) earlier. The statements of other witnesses were also recorded on the same night. There does not appear to be any reason whatsoever for Bhogilal to falsely involve the accused in this incident, as stated by us a little earlier. In view of these peculiar facts and circumstances of the case, we are not inclined to doubt the veracity of Bhogilal simply because the Police did not take care to see that the F.I.R. reached the learned Magistrate at the earliest. We do not for a moment approve of this conduct of the Police Officers, but on account of that negligence on the part of the Police Officer, we are not inclined to look at the evidence of Bhogilal with any suspicion, whose evidence appears to be most natural and probable.

9. It appears that Crime Register Number is mentioned in the Panchanama even before the offence was registered at the Police Station. It was not proper for the Police Officer to have mentioned the Crime Register Number in the Panchanama which was prepared before the offence was registered. The explanation given by the Police Officer Bharatkant Ex. 31 is that he knew what was the last number of the offence registered in the Crime Register and, therefore, wrote out the number in the Panchanama. The explanation given by him cannot be said to be incorrect and, therefore, we are not inclined to draw any adverse inference against the prosecution on account of the fact that Crime Register Number is mentioned in the Panchnama which was made even before the offence was registered. But at the same time we disapprove this action of the Police Officer.

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11. The prosecution case is that a pair of chappals was found lying on the spot and they were of the accused. The accused was made to put on the said chappals and they fitted him. The panch witness on this aspect is examined in this case and he has supported the prosecution but unfortunately for the prosecution the accused has not been questioned by the learned trial Judge, so far as this aspect is concerned. A question was put to the accused that his Gupti and his Chappals were found lying on the spot. But no question was put to him that he was made to put on the chappals in the presence of the panchas and they fitted him. This circumstance has not been taken into consideration by the learned Additional Sessions Judge observing that simply because the Chappals fitted the accused, we cannot definitely say that the Chappals must be of the accused and none else. Ordinarily, one would be inclined to take such a view but when it appears that there is positive evidence that Bhogilal saw the accused going along with the deceased towards the merry-go-round and then saw the accused running away from the spot where the deceased was lying with bleeding injuries and when there is positive evidence of Bhogilal to show that the Chappals were of the accused, the circumstance that the Chappals fitted the accused would be an important one. But we are inclined to say that this circumstance cannot be unfortunately taken into consideration when that circumstance was not put to the accused by the learned Additional Sessions Judge when his statement was recorded under Sec. 313 of the Criminal Procedure Code by the learned trial Judge. In a very recent decision reported in the case of Sharad v. State of Maharashtra, MANU/SC/0111/1984 : AIR 1984 SC 1622 : (1984 Cri. L.J. 1738), the Supreme Court has reiterated its earlier view that when a circumstance is not put to the accused when he is examined under Sec. 313 of the Code, the said circumstance cannot be used against him. In view of this, we are not inclined to take this circumstance into consideration. X X X

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20. We may mention here that in many cases we have found that the first information report is not sent to the concerned Judicial Magistrate at the earliest as required by the provisions of Section 157, Cr.P.C., 1973. In many cases we find that it is sent after unusual delay. We hope that the Police Officers will see to it that the first information report is forwarded to the concerned Judicial Magistrate, First Class so as to reach him at the earliest without any delay. In a given case, the delay may prove fatal to the prosecution. In our opinion, it is desirable that the Government may issue proper, instructions to the police officers to realize the importance of forwarding the first information report to the concerned Judicial Magistrate at the earliest so as to avoid any allegation that the first information report was subsequently manipulated. We also find in many cases that neither the complaint nor the panchnamas are read over to the panchas when their evidence is recorded. Complaint as well as panchnamas are only corroborative pieces of evidence and, therefore, they have to be read over to the complainant or the panch, as the case may be, and the same can be admitted in evidence if and only after the complainant or the panch, as the case may be, admits the contents thereof to be correct. We at times find mistakes in the depositions of witnesses which lead us to infer that the depositions must not have been read over to the witnesses and as a matter of routine, endorsement is made that the deposition was read over. We want to impress upon the presiding officers of the subordinate Criminal Courts the importance of reading over the depositions to the concerned witnesses so that mistakes, if any, are corrected when the deposition is read over.