Mere Delay In Sending FIR To Magistrate Is No Ground For Acquittal: SC

OMBIR SINGH vs.STATE OF UTTAR PRADESH CRIMINAL APPEAL NO. 982 OF 2011

Important Parties to the case

Ombir Singh (Accused)

Abhaiveer Singh Bhadoria @ Munna (Deceased)

Dinesh Singh (Prosecution Witness-1)

Mukesh Singh(Prosecution Witness-2)

Dr. Balbeer Singh (Prosecution Witness-3)

FACTS OF THE CASE:

Dinesh Singh, Mukesh Singh, Abhaiveer Singh Bhadauriya@ Munna, and Veerendra Kumar Chaudhary came from Shastri crossing to the station and halted their TATA Sumo there. They walked towards the house of one Shivraj Singh Sengar. Since it was the deceased who wanted to meet Shivraj Singh Sengar, he took the lead and was 18 steps (kadam) ahead of them. The deceased was stopped, near the government tap (Nal) which was installed near the house of Shivraj Singh Sengar, by the appellant Ombir Singh, his brother Shiv Veer Singh, and Roopesh Singh @ Rocky who had rifles in their hands, and Pramod Singh (acquitted by the trial court) who had a country-made revolver (tamancha) with him. They fired on the deceased five times. All other Dinesh Singh, Mukesh, and Veerendra Kumar Chaudhary fled from there. Ombir Singh was arrested after 7 days of the incident. He was accused by the trial court, and High Court on the charges of section 302 read with Section 34 of the Indian Penal Code, 1860 (‘IPC’, for short) and section 27 of the Arms Act, 1959.
Dr. Balbeer Singh (PW-3), who was then working as a surgeon in the District Hospital Itawa. He has deposed that Abhaiveer Singh Bhadoria @ Munna had died as a result of as many as 5 firearm injuries that he had identified by referring to five entry and five exit wounds.
The appellant Ombir Singh has challenged the judgment dated 27.10.2009, by the Allahabad High Court, confirming his conviction under section 302 (Murder) read with Section 34 (Common intention) of the Indian Penal Code, 1860 and section 27 (Punishment for using arms, etc) of the Arms Act, 1959, for the murder of Abhaiveer Singh Bhadoria @ Munna on 15.07.1999 at about 9 am.

MAIN ISSUE BEFORE THE HON’BLE SUPREME COURT

It was highlighted by the counsel appearing for the accused that the First Information Report, purportedly recorded on the details and information furnished by Dinesh Singh (PW-1), contrary to the mandate of Section 157 of the Code of Criminal Procedure (‘Code’, for short) was belatedly sent and received by the ilaka magistrate (Chief Judicial Magistrate in this case) after 11 days and that the FIR was not sent to Dr. Balbeer Singh (PW-3) along with the inquest papers. Thus, it was submitted that the FIR was ante-timed and in the background of personal and political rivalry between the parties, the appellant had been framed by the two purported eyewitnesses Dinesh Singh (PW-1) and Mukesh Singh (PW-2), who were not present at the spot and therefore, were not injured.

“Whether the delay in sending the FIR to ilaka Magistrate u/s 157 CrPC led to the acquittal of the Accused?”

Section 157 CrPC says that an officer in charge of the police station shall forthwith send a report of the commission of an offence to a Magistrate empowered to take cognizance of such offence.

SUPREME COURT’S REFERENCES:

The Court accepted that there was undoubtedly a delay in compliance with section 157 of the Code, as the FIR was received in the office of the Chief Judicial Magistrate with a delay of 11 days. Therefore, The Supreme Court referred its earlier Judgment on the Effect of delay in compliance with Section 157 of the Code and its legal impact on the trial has been examined by this court in Jafel Biswas v. State of West Bengal [1] after referring to the earlier case laws, to elucidate as follows:

1. In State of Rajasthan v. Daud Khan [2], this Court has laid down as follows:

“The delay in sending the special report was also the subject of discussion in a recent decision being Sheo Shankar Singh v. State of U.P. [3], wherein it was held that before such a contention is countenanced, the accused must show prejudice having been caused by the delayed dispatch of the FIR to the Magistrate.”

2. Also, In this Jafel Biswas case, SC referred to the following recent decision :

Sandeep v. State of U.P. [4], Anjan Dasgupta v. State of W.B.[5], Rabindra Mahto v. State of Jharkhand [6] in these cases the FIR was dispatched with delay. The SC had considered Section 157 CrPC and it was held that in every case from the mere delay in sending the FIR to the Magistrate, the Court would not conclude that the FIR had been registered much later in time than shown.

SUPREME COURT DECISION IN THIS CASE:

SC observed that Dinesh Singh (PW-1) and Mukesh Singh (PW-2) have identically testified to Fact no.1 (Read Point no. 1 of facts above).
The court said that “ we have examined their testimonies and find that they had correctly identified the appellant, and also narrated the motive, which would be a corroborative factor. Also, the clothes worn by Dinesh Singh (PW-1) and Mukesh Singh (PW-2) were seized and as per the Chemical Examination Report presence of human blood was ascertained.”
The Court said, “In our opinion, the Trial Court and the High Court have correctly relied upon their ocular evidence.”
The court while referring to its earlier decision (as stated above) said that delay in compliance of Section 157 of the Code cannot, in itself, be a good ground to acquit the appellant. Therefore, the SC dismissed the appeal of the accused and confirmed the conviction and sentence of the appellant under Section 302 read with Section 34 of the Indian Penal Code with Section 27 of the Arms Act.