Cav Judgment:

(Per: Honourable Mr. Justice Bibek Chaudhuri)

1. These batch of criminal appeals arise out of the common judgment of conviction dated 29.11.2018 and order of sentence dated 30.11.2018 passed by the learned Presiding Officer, Fast Track Court-II, Buxar in Sessions Trial No. 296 of 2016, arising out of Dhansoi P.S. Case No. 113 of 2015 dated 21.11.2015 (G.R. No. 3158 of 2015). By the impugned judgment, the learned trial court convicted all the 14 accused persons (appellants herein) for the offences punishable under Sections 147, 148, 341 and 302 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and sentenced them to undergo rigorous imprisonment for life along with a fine of Rs. 1,00,000/- (Rupees One Lakh) each, with default stipulation of further five years rigorous imprisonment. They were, however, acquitted of the charge under Section 504 IPC. All sentences were directed to run concurrently.

2. During the pendency of these appeals, two appellants have died. Accordingly, Criminal Appeal (DB) No. 58 of 2019 stands abated as against Appellant No. 3 therein, and Criminal Appeal (DB) No. 111 of 2019 stands abated as against Appellant No. 5 therein. The appeals survive in respect of the remaining appellants.

3. The prosecution case, as unfolded during trial, is as follows:

                  (i) On 19.11.2015 at about 09:00 AM, the deceased Subhash Singh was returning to his village after visiting his agricultural field situated to the north of Village Jeevpur, P.S. Dhansoi, District Buxar. When he reached near the drain (Karaha Nala) adjacent to the paddy field of Vishwanath Upadhyay, he was allegedly surrounded by 21 named persons. According to the fardbeyan of the informant Dinesh Kumar Singh (PW-4), cousin of the deceased, all the accused were hiding in the paddy field. On the exhortation of accused Yamuna Singh saying “Kill this bastard (Sale ko maro)”, accused Mantu Singh @ Gautam Singh assaulted the deceased on his head with an axe/farsa, causing him to fall down. Thereafter, accused Santosh Singh assaulted him on the leg with a sword, accused Budhdev Singh assaulted him with a spear, and the remaining accused assaulted him with lathis and sticks with the common object to kill him.

                  (ii) The informant (PW-4), who claimed to be proceeding towards his own field on the southern road and was at a distance of about 50 yards from the spot, witnessed the occurrence. He raised an alarm, upon which villagers including PWs 1, 2 and 3 gathered at the spot. Seeing the villagers, the accused persons fled away. The injured Subhash Singh was immediately taken to Sadar Hospital, Buxar for treatment. After first aid, considering his serious condition, he was referred to the Trauma Centre, BHU, Varanasi, where he was admitted and treated. He remained unconscious throughout the treatment and succumbed to his injuries on 05.12.2015 (after about 16-17 days).

4. The motive behind the occurrence, as alleged, is a long-standing land dispute between the two parties, who belong to the same extended family but are divided into factions. Several cases were pending between them prior to the incident.

5. On the basis of the fardbeyan of PW-4 (Ext.4), recorded by Sub-Inspector, Islam Ahmed on 20.11.2015 at about 04:20 PM at the Trauma Centre, BHU, Varanasi in presence of witnesses Santosh Singh (PW-1) and Vijay Singh (PW-3), Dhansoi P.S. Case No. 113 of 2015 was registered on 21.11.2015 under Sections 147, 148, 149, 341, 323, 307 and 504 IPC. Section 302 IPC was added after the death of the deceased vide order dated 07.12.2015.

6. Investigation was initially conducted by SI Mungalal Singh (first Investigating Officer), who submitted charge sheet No. 22/2016 dated 29.02.2016 against eight accused persons. Thereafter, the second Investigating Officer, Narendra Kumar Sinha (PW-6), then SHO of Dhansoi P.S., took over the investigation and submitted supplementary charge sheet No. 107/2016 dated 31.08.2016 against seven more accused persons. Cognizance was taken and the case was committed to the Court of Sessions. Charges were framed against the 14 accused persons on 25.08.2017, to which they pleaded not guilty and claimed trial.

7. In support of its case, the prosecution examined seven witnesses:

                  a. PW-1 (Santosh Singh): Son of the deceased. He claimed to have witnessed the occurrence while returning from his field.

                  b. PW-2 (Ramanuj Singh): Relative of the deceased.

                  He also claimed to be an eye-witness.

                  c. PW-3 (Vijay Singh): Real brother of the deceased and an eye-witness.

                  d. PW-4 (Dinesh Kumar Singh): Informant and cousin of the deceased. He is the star witness who lodged the fardbeyan.

                  e. PW-5 (Dr. Robin Kumar Dubey): Conducted the post-mortem examination on 06.12.2015 at Lal Bahadur Shastri Hospital, Ramnagar, Varanasi.

                  f. PW-6 (Narendra Kumar Sinha): Second Investigating Officer.

                  g. PW-7: Formal witness.

8. Several documents were exhibited including the fardbeyan (Ext.4), post-mortem report (Ext.2), inquest report and other hospital papers (Ext.3 series), formal FIR (Ext.6), etc.

9. The defence neither examined any witness nor produced any documentary evidence. The statements of the accused persons under Section 313 Cr.P.C. were recorded wherein they denied the allegations and claimed to have been falsely implicated due to previous land dispute and enmity.

10. The defence, as emerges from the trend of cross-examination, statements under Section 313 Cr.P.C., and arguments advanced by learned counsel for the appellants, is one of total denial and false implication. The appellants have contended that no such occurrence took place in the manner alleged by the prosecution. They claim to have been falsely implicated due to pre-existing land dispute and deep-rooted enmity between the two factions of the same extended family.

11. It is the specific case of the defence that several cases were pending between the parties even prior to the incident. The accused side had also filed cases against the informant party, including Dhansoi P.S. Case No. 67/2015 (STR No. 100/2016) and a Miscellaneous Case in the High Court. The defence has highlighted that the prosecution has suppressed these counter-cases and the admitted enmity. It is further submitted that the entire prosecution case is based on interested and related witnesses belonging to one side of the family dispute, and no independent witness from the village has been examined despite the allegation that several villagers had gathered at the spot on hearing the alarm.

12. The defence has also raised serious doubts regarding the manner of occurrence, pointing out that the paddy field was allegedly waist-high, the distance of the witnesses was around 50 yards, and visibility of specific overt acts (including exact weapons used and parts of body targeted) under such circumstances is highly improbable. It is contended that the first information was not promptly given to the local police station despite the alleged gathering of villagers, and the fardbeyan was recorded belatedly at a distant hospital in Varanasi, giving sufficient time for consultation and concoction.

13. The defence has further argued that the investigation was defective. The first Investigating Officer, who conducted the major part of the investigation including spot inspection and recording of statements of most witnesses, was not examined. This has caused serious prejudice to the appellants as they could not effectively bring out contradictions between the previous statements and the evidence in Court. The second Investigating Officer (PW-6) admitted that he had done almost nothing except recording statements of two formal witnesses and submitting the supplementary charge sheet.

14. With respect to the medical evidence, the defence has submitted that the post-mortem report does not conclusively support the use of sharp cutting weapons as alleged, especially since the wounds were stitched and their margins could not be opined upon by the doctor. The death having occurred after a long gap of 16-17 days, during which the deceased remained unconscious, it is argued that the intention to cause death or the knowledge that the injuries were likely to cause death has not been established against all the appellants, particularly those against whom only general allegations of assault with lathis have been made.

15. The appellants have also highlighted the defective examination under Section 313 Cr.P.C., wherein omnibus and generic questions were put to all the accused persons without distinguishing their individual roles, thereby denying them a fair and proper opportunity to explain the circumstances appearing against them in the evidence.

16. In short, the defence has prayed for acquittal of all the appellants on the ground that the prosecution has miserably failed to prove its case beyond reasonable doubt.

17. In view of the rival contentions raised by the parties and the materials available on record, the following points fall for determination in these appeals:

                  (i) Whether the prosecution has been able to prove beyond reasonable doubt the occurrence of the alleged assault on the deceased Subhash Singh on 19.11.2015 near Karaha Nala adjacent to the field of Vishwanath Upadhyay in Village Jeevpur, P.S. Dhansoi, District Buxar, in the manner as described in the fardbeyan and evidence of the prosecution witnesses?

                  (ii) Whether the appellants (or any of them) were present at the place of occurrence and participated in the assault on the deceased, and if so, to what extent and with what role?

                  (iii) Whether the injuries caused to the deceased Subhash Singh were sufficient in the ordinary course of nature to cause death or were likely to cause death, and whether the act of the appellants amounts to murder punishable under Section 302 IPC or culpable homicide not amounting to murder punishable under Section 304 IPC?

                  (iv) Whether the prosecution has proved the existence of a common object among the appellants to cause the death of the deceased so as to attract the provisions of Section 149 IPC against all of them?

                  (v) Whether the trial is vitiated due to delayed lodging and recording of the fardbeyan/FIR, non-examination of the first Investigating Officer, defective investigation, or defective examination of the accused under Section 313 Cr.P.C., and if so, whether such lapses have caused prejudice to the appellants?

                  (vi) Whether the conviction and sentence recorded by the learned trial court against the appellants calls for any interference by this Court, and if so, to what extent?

18. We have meticulously examined the lower court records, the impugned judgment dated 29.11.2018, the evidence of all prosecution witnesses, the exhibited documents including the fardbeyan (Ext.4), post-mortem report (Ext.2), and the submissions advanced by learned counsel for the appellants and the State. The appeals involve serious questions relating to appreciation of interested ocular evidence, delayed FIR, medical corroboration, common object under Section 149 IPC, and several procedural lapses. We proceed to deal with each issue in detail.

19. Point No. (i): Whether the prosecution has proved the occurrence as alleged?

                  (i) The foundation of the prosecution case is the fardbeyan of PW-4 (Dinesh Kumar Singh), recorded on 20.11.2015 at about 04:20 PM at the Trauma Centre, BHU, Varanasi. According to PW-4, on 19.11.2015 at around 9:00 AM, while he was proceeding north from the village towards his field on the southern road, he saw the deceased Subhash Singh coming from the north. When the deceased reached near Karaha Nala adjacent to Vishwanath Upadhyay’s paddy field, all 21 accused, who were hiding in the field, surrounded him. On the exhortation of Yamuna Singh (“Kill this bastard”), Mantu @ Gautam Singh assaulted the deceased on the head with an axe, causing him to fall. Santosh Singh then assaulted on the leg with a sword, Budhdev Singh with a spear, and the remaining persons with lathis and sticks. PW-4 raised an alarm. Villagers gathered and the accused fled. The injured was taken first to Buxar Sadar Hospital and then to BHU Varanasi, where he died on 05.12.2015.

                  (ii) This version has been supported by PW-1 (son of the deceased), PW-2 (relative), and PW-3 (brother of the deceased). All four eye-witnesses have broadly corroborated the assembly of the accused, the exhortation, the specific overt acts by three main assailants, general beating by others, and the subsequent events.

                  (iii) However, all the four eye-witnesses are closely related to the deceased and belong to one faction of the extended family which is locked in a long-standing land dispute with the appellants’ side. PW-1 is the son, PW-3 is the real brother, PW-4 is the cousin and informant, and PW-2 has been described as an uncle/relative. It is an admitted position that several cases were pending between the two sides even prior to the incident, and counter-cases had been filed by the appellants’ side as well.

                  (iv) It is a settled principle of law that evidence of related or interested witnesses cannot be discarded on the ground of relationship alone, but when the prosecution case rests entirely on such witnesses, the Court is required to scrutinise their evidence with greater care and caution to rule out the possibility of false implication or exaggeration due to enmity. On the significance of interested witnesses in criminal cases, the Hon’ble Supreme Court in Hukam Singh v. State of Rajasthan, reported in (2000) 7 SCC 490, noted that if interested witnesses had seen the occurrence they would certainly have the interest to bring the offenders of the murder of their breadwinner to book. Normally the kith and kin of the deceased, if they had seen the occurrence would not absolve the real offenders and involve innocent persons in that murder. Paragraph no. 7 of the said judgment is reproduced hereinbelow:

                  “7. Bhupender Pal (PW 4) and Ram Pyari (PW 5) were the two eyewitnesses examined by the prosecution. The fact that they were present at the scene of occurrence could not be disputed nor has the same been disputed by the accused. They sustained injuries at the hands of the assailants and the doctor who noted such injuries had testified about them in the Court as PW 9. The version spoken of by PW 4 in court is substantially a reiteration of the version which he supplied to the police as early as 8.40 p.m. on the same night. That became the basis for the FIR. The Sessions Court refused to believe the testimony of those witnesses on the erroneous perception that they are “interested witnesses”. The only premise for dubbing them as “interested witnesses” is that they were the kith and kin of the deceased. Why should such witnesses be termed as interested witnesses? If they had seen the occurrence they would certainly have the interest to bring the offenders of the murder of their breadwinner to book. Normally the kith and kin of the deceased, if they had seen the occurrence would not absolve the real offenders and involve innocent persons in that murder. (Vide Dalip Singh v. State of Punjab [(1953) 2 SCC 36 : AIR 1953 SC 364 : 1954 SCR 145 : 1953 Cri LJ 1465] , Guli Chand v. State of Rajasthan [(1974) 3 SCC 698 : 1974 SCC (Cri) 222] and Dalbir Kaur v. State of Punjab [(1976) 4 SCC 158 : 1976 SCC (Cri) 527]”

                  (v) At the same time, the need for close scrutiny of interested witnesses are also paramount. The discussion on this point has been authoritatively summed up by the Hon’ble Supreme Court in Rai Sandeep v. State (NCT of Delhi), reported in (2012) 8 SCC 21. The relevant paragraph of the said judgment is reproduced below:

                  “22 [Ed.: Para 22 corrected vide Official Corrigendum No. F.3/Ed.B.J./48/2012 dated 18-8-2012.] . In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

                  (vi) In the present case, several circumstances create doubt regarding the reliability and probability of the ocular account:

                  (a) All witnesses claim to have seen the detailed assault from a distance of approximately 50 yards. The accused were allegedly hiding in a waist-high paddy field near a drain/ravine. The possibility of clearly identifying all 21 persons and observing specific weapon strikes (head with axe, leg with sword, spear blows) from such a distance, while the field had standing crop, appears to be highly improbable.

                  (b) The conduct of the witnesses is somewhat uniform and open to question. None of them was allegedly attacked despite witnessing a brutal group assault on their close relative. PW-4 states that after being threatened, he ran a short distance but remained standing and watched the entire incident. Similar conduct is attributed to the other witnesses.

                  (c) Despite the alarm and alleged gathering of villagers, no independent witness has been examined. In a village setting where an incident of this nature is alleged to have taken place in an open field, the non-examination of at least some independent persons is a significant lacuna.

                  (d) While the broad occurrence of an assault on the deceased cannot be completely disbelieved, the evidence of PWs 1 to 4, being highly interested and lacking independent corroboration, requires cautious appreciation. Their testimony can be relied upon only to the extent it is natural, consistent, and supported by medical evidence or other circumstances.

20. Point No. (ii): Participation of the Appellants

(i) Specific overt acts have been attributed only to four persons: Mantu @ Gautam Singh (axe on head), Santosh Singh (sword on leg), Budhdev Singh (spear), and Yamuna Singh (exhortation). Against the remaining appellants, the allegations are general and omnibus in nature, meaning thereby that they assaulted with lathis and sticks and surrounded the deceased.

                  (ii) In cases involving a large number of accused, the Court must be cautious in convicting persons on the basis of general allegations. Participation of each accused must be established by reliable evidence. The evidence on record falls short of conclusively proving the presence and active participation of every appellant with the requisite mens rea, particularly for those against whom only general lathi blows have been alleged.

21. Point No. (iii): Medical Evidence, Cause of Death and Nature of Offence (Section 302 vs. Section 304 IPC)

                  (i) The medical evidence is provided by PW-5, Dr. Robin Kumar Dubey, who conducted the post-mortem examination on the dead body of Subhash Singh on 06.12.2015 at about 3:00 PM at Lal Bahadur Shastri Hospital, Ramnagar, Varanasi. The external injuries noted were:

                  (a) Stitched wound over right parietal region of the head (7 cm).

                  (b) Stitched wound in front of right leg (17 cm, below knee) with fracture of both bones.

                  (c) Multiple abraded contusions over left leg with fracture of both bones.

                  (d) On skull opening: Contusion on forehead and right parietal region with underlying fractures.

                  (ii) The doctor opined the cause of death as coma resulting from head injuries contributed by fractures of both lower limb bones, leading to haemorrhage and shock. Internal findings included subdural haematoma in the brain. The deceased had been brought with plaster on both lower legs, which was removed during examination.

                  (iii) In cross-examination, PW-5 made significant admissions:

                  (a) Since the wounds were stitched, he could not describe the margins and was unable to definitively opine whether the injuries were caused by sharp cutting weapons or hard blunt objects.

                  (b) He could not state whether the skull fracture was caused by incised/cut wound or hard blunt substance.

                  (c) The death certificate from BHU Trauma Centre (Ext.3/E) mentioned cardio-respiratory arrest.

                  (d) The deceased was admitted to the Trauma Centre on 01.12.2015 (as per the PM report).

                  (iv) The post-mortem thus corroborates that the deceased suffered head and leg injuries leading to his death. However, the stitching of wounds (due to surgical intervention at BHU) has materially affected the ability of the doctor to link the injuries specifically to the sharp weapons alleged by the prosecution (axe, sword, spear). This creates a reasonable doubt regarding the exact nature and force of the weapons used.

                  (v) Additionally, the deceased survived for approximately 16-17 days after the incident and remained unconscious throughout the treatment. While the injuries were undoubtedly grievous and caused the death, the prolonged survival period and the medical opinion raise questions about whether every appellant (particularly those with only general lathi allegations) had the intention to cause death or the knowledge that their acts were likely to cause death in the ordinary course of nature, as required under Section 300 IPC for murder.

                  (vi) In view of the above, while the act of the appellants caused the death of Subhash Singh, the case against them is more appropriately covered under Section 304 Part-I or Part-II IPC (culpable homicide not amounting to murder), depending upon their individual roles and the evidence against them. Conviction under Section 302 IPC read with Section 149 IPC, therefore, cannot be sustained against all the appellants.

22. Point No. (iv): Common Object under Section 149 IPC

                  (i) Section 149 IPC provides for vicarious liability where an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly. Mere presence in an unlawful assembly is not sufficient; the prosecution must prove that each member shared the common object.

                  (ii) In the present case, even if the presence of a group and an assault is accepted, the common object to cause death cannot be attributed uniformly to all 14 appellants. Specific overt acts of using deadly weapons have been attributed only to a few. Against the others, the evidence is general and omnibus. Given the interested nature of the witnesses, the medical ambiguity, and the defective investigation, the prosecution has failed to prove beyond reasonable doubt that every appellant shared the common object of causing the death of Subhash Singh. Section 149 IPC cannot be pressed into service mechanically to convict all the appellants for the offence of murder.

23. Point No. (v): Procedural Lapses and Prejudice to the Appellants

A. Delayed Recording of Fardbeyan/FIR

                  (i) The fardbeyan of PW-4 was recorded at the Trauma Centre, BHU, Varanasi on 20.11.2015 at 04:20 PM, i.e., more than 30 hours after the alleged incident. No prompt information was given to the local Dhansoi Police Station despite the alleged gathering of villagers. The formal FIR was registered on 21.11.2015. Such delay in a serious case involving specific allegations against a large number of named persons gives rise to the possibility of consultation, deliberation, and improvement. The explanation offered (priority to treatment) is not entirely satisfactory when weighed against the requirement of prompt lodging of information in a cognizable offence. The Hon’ble Supreme Court, in Thulia Kali v. State of T.N., reported in (1972) 3 SCC 393, explained the importance of prompt lodging of F.I.R. The relevant paragraph of the said judgment is reproduced below:

                  “12. It is in the evidence of Valanjiaraju that the house of Muthuswami is at a distance of three furlongs from the village of Valanjiaraju. Police Station Valavanthi is also at a distance of three furlongs from the house of Muthuswami. Assuming that Muthuswami PW was not found at his house till 10.30 p.m. on March 12, 1970, by Valanjiaraju, it is not clear as to why no report was lodged by Valanjiaraju at the police station. It is, in our opinion, most difficult to believe that even though the accused had been seen at 2 p.m. committing the murder of Madhandi deceased and a large number of villagers had been told about it soon thereafter, no report about the occurrence could be lodged till the following day. The police station was less than two miles from the village of Valanjiaraju and Kopia and their failure to make a report to the police till the following day would tend to show that none of them had witnessed the occurrence. It seems likely, as has been stated on behalf of the accused, that the villagers came to know of the death of Madhandi deceased on the evening of March 12, 1970. They did not then know about the actual assailant of the deceased, and on the following day, their suspicion fell on the accused and accordingly they involved him in this case. 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 above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt 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 eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. 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 report should be satisfactorily explained. In the present case, Kopia, daughter-in-law of Madhandi deceased, according to the prosecution case, was present when the accused made murderous assault on the deceased. Valanjiaraju, step-son of the deceased, is also alleged to have arrived near the scene of occurrence on being told by Kopia. Neither of them, nor any other villager, who is stated to have been told about the occurrence by Valanjiaraju and Kopia, made any report at the police station for more than 20 hours after the occurrence, even though the police station is only two miles from the place of occurrence. The said circumstance, in our opinion, would raise considerable doubt regarding the veracity of the evidence of those two witnesses and point to an infirmity in that evidence as would render it unsafe to base the conviction of the accused-appellant upon it.”

                  (ii) Further, the Hon’ble Supreme Court in Meharaj Singh v. State of U.P., reported in (1994) 5 SCC 188, discussing the value and the effects in delay of lodging FIR, held that, delay in sending special report to the Magistrate or failure to send copy of the FIR to the Medical Officer along with the dead body for post-mortem and absence of its reference in inquest report can give rise to an inference that the FIR had been anti-timed. The relevant paragraph of the said judgment is reproduced below:

                  “12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, 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. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8.”

                  B. Non-examination of the First Investigating Officer

                  (i) The first IO conducted the major part of the investigation including spot inspection, recording of statements of most witnesses, and submission of the first charge sheet. He was not examined on the ground that he had become paralysed and bedridden (supported by Exhibit-7). Non-examination of an IO is not per se fatal to the prosecution case, and depends on the facts of each case. The same was held by the Hon’ble Supreme Court in Behari Prasad v. State of Bihar, reported in (1996) 2 SCC 317. Paragraph 23 of the said judgement is reproduced hereinbelow:

                  “23. It, however, appears to us that the entire case diary should not have been allowed to be exhibited by the learned Additional Sessions Judge. In the facts of the case, it appears to us that the involvement of the accused in committing the murder has been clearly established by the evidences of the eyewitnesses. Such evidences are in conformity with the case made out in FIR and also with the medical evidence. Hence, for non-examination of Investigating Officer, the prosecution case should not fail. We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal strait-jacket formula should be laid down that non-examination of Investigating Officer per se vitiates a criminal trial. These appeals, therefore, fail and are dismissed. The appellants who have been released on bail should be taken into custody to serve out the sentence.”

                  (ii) It is also well settled that it does not dent the prosecution case where no material contradictions are shown. In Ram Dev v. State of U.P., reported in 1995 Supp (1) SCC 547, the Hon’ble Supreme Court stressed on the desirability of the prosecution to produce the IO. In paragraph 7 of the said judgment, the Hon'ble Supreme Court held as hereunder:

                  “7. Before parting with the judgment, we would however like to observe that the prosecution did not examine Bharat Lal Sharma, Sub-Inspector, who was the investigating officer of the case. It was desirable for the prosecution to produce the investigating officer at the trial notwithstanding the fact that the various documents which were to be proved by the investigating officer were accepted by the defence as genuine documents and were not disputed. However, the non-examination of the investigating officer does not in any way create any dent in the prosecution case much less affect the credibility of the otherwise trustworthiness of the oral testimony of the eyewitnesses which we have accepted.”

                  (iii) The position is otherwise where the withheld IO was the one who conducted the substantive investigation and his absence deprives the defence of testing crucial aspects of the prosecution case.

                  (iv) Here, the explanation for his non-examination is on record, but the defence has been deprived of the opportunity to cross-examine him on crucial aspects such as objective findings at the spot, contradictions/omissions in the previous statements of PWs 1–4, and reasons for dropping some named accused. This is precisely the kind of lacuna that’s treated material. The second IO (PW-6) admitted that he had done virtually nothing except recording statements of two witnesses and filing the supplementary charge sheet. In such circumstances, prejudice to the defence is apparent, and an adverse inference under Section 114, Illustration (g) of the Evidence Act must be drawn against the prosecution for withholding the best available evidence on the investigation.

                  C. Defective Examination under Section 313 Cr.P.C.

                  The examination of the accused persons under Section 313 Cr.P.C. was highly unsatisfactory. Generic and omnibus questions appear to have been put to all the appellants without distinguishing their individual roles or specifically confronting them with the incriminating circumstances appearing in the evidence. This has denied the appellants a fair and meaningful opportunity to explain the evidence against them. In a case involving multiple accused with varying degrees of alleged participation, such a defective examination causes prejudice and vitiates the conviction to that extent. Reliance on this point may be placed by referring to the decision of the hon’ble Supreme Court, in Maheshwar Tigga v. State of Jharkhand, reported in (2020) 10 SCC 108. The Court summarised the principles of the standard of proof on which the accused are to be examined. The relevant paragraphs of the said judgment are reproduced below:

                  “8. It stands well settled that circumstances not put to an accused under Section 313 CrPC cannot be used against him, and must be excluded from consideration. In a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish his defence, but also to explain the incriminating circumstances against him. A probable defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt.

                  9. This Court, time and again, has emphasised the importance of putting all relevant questions to an accused under Section 313 CrPC. In Naval Kishore Singh v. State of Bihar [Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502 : 2004 SCC (Cri) 1967] , it was held to be an essential part of a fair trial observing as follows: (SCC p. 504, para 5)

                  “5. The questioning of the accused under Section 313 CrPC was done in the most unsatisfactory manner. Under Section 313 CrPC the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence.”

24. Point No. (vi): Final Conclusion on Conviction and Sentence

                  (i) Taking an overall view of the matter, this Court is of the firm opinion that the prosecution has succeeded in proving that an assault took place on the deceased Subhash Singh in which the appellants were involved, causing injuries that ultimately led to his death. However, due to the interested nature of the eye-witnesses, lack of independent corroboration, delayed FIR, medical ambiguity regarding the nature of weapons, defective investigation, non-examination of the first IO, and defective Section 313 Cr.P.C. examination, the prosecution has failed to prove beyond reasonable doubt that all the appellants shared the common object to cause the death of the deceased so as to attract liability under Section 302 read with Section 149 IPC.

                  (ii) The conviction of the appellants under Sections 147, 148 and 341 IPC is upheld. Their conviction under Section 302 read with Section 149 IPC is altered to Section 304 Part-I read with Section 149 IPC for the appellants against whom specific overt acts have been proved, and to Section 304 Part-II read with Section 149 IPC for the remaining appellants. The sentence is reduced to the period already undergone by them, subject to payment of fine (if not already paid). The appellants shall be released forthwith if not required in any other case.

25. Conclusion:

                  (i) In view of the detailed discussion above, these criminal appeals are partly allowed with the following conclusions:

                  (ii) The conviction of all the surviving appellants under Sections 147, 148 and 341 of the Indian Penal Code is upheld.

                  (iii) The conviction of the appellants under Section 302 read with Section 149 IPC is set aside. Instead, their conviction is altered as under:

                  (a) Against whom specific overt acts of using deadly weapons (axe, sword, spear) have been attributed (Mantu @ Gautam Singh, Santosh Singh, Budhdev Singh, and Yamuna Singh): Section 304 Part-I read with Section 149 IPC.

                  (b) For the remaining appellants (against whom only general allegations of assault with lathis/sticks have been made): Section 304 Part-II read with Section 149 IPC.

                  (iv) The sentence is modified accordingly. The appellants are sentenced to the period already undergone by them in custody (with set-off under Section 428 Cr.P.C.), subject to payment of the fine of Rs. 1,00,000/- (Rupees One Lakh) each, if not already paid. In default of payment of fine, each appellant shall undergo further rigorous imprisonment for two years. Sentence for payment of fine shall run separately.

                  (v) The appeals of the two deceased appellants stand abated.

                  (vi) The appellants shall be released forthwith from custody, provided payment of fine be made by them, if not required in connection with any other case.

                  (vii) The fine amount, if realized, shall be paid as compensation to the legal heirs of the deceased Subhash Singh under Section 357 Cr.P.C.

                  (viii) The impugned judgment of the trial court stands modified to the extent indicated above. The trial court shall take necessary steps for compliance and release of the appellants.

                  (ix) Let a copy of this judgment be sent to the learned trial court along with the lower court records for necessary action.