Brief Facts
- The deceased, Altaf Hussain, had a land dispute with the accused appellants, who are father and son. In connection with the said land dispute, proceedings were pending before the Consolidation Officer and on the fateful day (04.08.1995) the deceased Altaf Hussain was going to Roorkee for attending the said proceedings on his bicycle. When deceased was only at a short distance of 5 kms from Roorkee, the accused persons armed with “tabal” and “axe” assaulted him which resulted in his death.
- The Sessions trial ended in the conviction/sentencing of the accused appellants vide judgment and order dated 25.04.1998. The High Court on appeal upheld and confirmed the same. Thus, the present appeal.
- It was contended that the FIR is ante timed. The FIR was stated to have been registered at 9:00 AM, however, there is an interpolation in the time of lodging of the FIR. The FIR was sent to the Magistrate Court with the delay of 4 days and the body was sent for the post mortem late in the evening though the police had reached on the spot at 10:00 AM itself.
Issues
- Whether ante-timing of the FIR casts a benefit of doubt in the favor of accused?
- Whether the failure in examining the independent witnesses, despite their presence on the spot would be fatal to the Prosecution specifically in the case when the conduct of the related eye witnesses is unnatural?
- Whether the delay of four days in sending the copy of the FIR to the jurisdictional Magistrate would be fatal to the prosecution?
Held
- Apex Court acquitted the accused persons by giving the benefit of doubt.
Interpolation in the time of lodging of the FIR. - A bare pursual of the aforesaid FIR clearly shows that there is some interpolation in the time of its lodging mentioned therein. It is evident from naked eye that ‘1’ has been converted into ‘9’ and ‘5’ has been rounded off to make ‘0’ whereas ‘PM’ has been converted into ‘AM’. The trial Court is not correct in saying that there is no interpolation and that since ‘AM’ has been used, it means that the FIR has been lodged in the morning. The Trial Court completely lost sight of the fact that not only the time has been changed but the word ‘PM’ has also been interpolated and converted into ‘AM’. Thus, in our opinion, the FIR has been ante-timed from 1:50 PM to 9:00 AM.
- FIR in a criminal case and particularly in a murder case is a vital and a valuable piece of evidence especially for the purpose of appreciating the evidence adduced at the trial. It is for this reason that the infirmities, if any, in the FIR casts a doubt on its authenticity. In Meharaj Singh and Ors. Vs. State of U.P. and Ors., (1994) 5 SCC 188, it has been opined that on account of the infirmities such an ante-timing of the FIR loses its evidentiary value. Thus, this entitles the accused to be given the benefit of doubt.
- It has come on record that the accused appellants on being chased had run away towards the jungle leaving behind their ‘loi’ (blanket) and cycle. Both these items were recovered by the Investigating Officer and were marked as Exh. Ka-10 and Exh. Ka-11 respectively. None of these two items were produced before the Court and were got identified by the accused appellants. There is no evidence on record which may establish that in fact the said loi and the cycle belonged to the accused appellants.
Unnatural conduct of interested witness and non examination of independent witness. - It is an admitted fact that immediately on the occurrence of the incident, large number of people have assembled and even then the prosecution was not successful in finding a proper eye witness or any other independent person who could have narrated the entire incident.
- The son and the nephew of the deceased Altaf Ahmed were following him on their own cycle but the defence has doubted their presence. The conduct and behaviour of both of them appear to be unnatural inasmuch as, had their father been assaulted in the manner alleged, they would have been the first person to intervene so as to save him, but there is no evidence to indicate that upon seeing the accused appellants assaulting deceased Altaf Hussain they had rushed to the spot which was hardly at some distance from them rather two other persons came on the spot and tried to save deceased Altaf Hussain upon hearing the alarm raised by them. Therefore, the conduct of these two persons amply supports the defence version that they may not be present at the place of event.
Conclusion - The totality of the facts and circumstances especially the unnatural behaviour and conduct of the son and nephew of the deceased Altaf Hussain, ante-timing of the FIR and that the ‘loi’ (blanket) and the cycle (Exh. Ka-10 and Exh. Ka-11) alleged to be that of the accused appellants left behind at the site of the incident were not produced before the Court, compels us to doubt the presence of the son and nephew of the deceased Altaf Hussain at the site. Thus, in the absence of any credible eye witness to the incident and the fact that the presence of the accused appellants at the place of incident is also not well established, we are constrained to accord benefit of doubt to both the accused appellants.
Relevant Para No.
- 12, 13, 16, 17, 19, 23