Bharat Singh v. State of Rajasthan — 1995 DIGILAW 836 (RAJ)

Honble KOCHHAR, J. – The appellant was prosecuted under Section 302 of the Indian Penal Code (IPC), besides under Section 4/25 of the Arms Act, 1959 ("the Arms Act"), in Case FIR No. 58/93, of Police Station - Viral Nagar, District - Jaipur, and the learned Additional Sessions Judge, Kotputli vide his impugned judgment date 28th October, 1994, has acquitted him of the charge under Section 4/25 of the Arms Act, but has convicted him under Section 302 IPC and vide the impugned order of the same date, has sentenced him to undergo imprisonment for life and to pay a fine in the sum of Rs. 1,000/- and in default of payment of fine, to undergo regorous imprisonment for a further period of three months. The prosecution-story, in short, was as under :– (2). On the morning of 7th July, 1993, at about 6 a.m., PW 3, Laxman Singh (the complainant) went to Police Station-Virat Nagar and presented to PW 16, Head-Constable Maliram, who was then the senior-most official at the police station, a written report (Ex.P.17), stating that he was resident of Jaisinghpura and that they were three brothers; two to them; namely, he himself and Kishan Singh (the deceased), had been residing together; whereas, their third and elder brother, Bharat Singh (the appellant) had been residing separately. At about 9 p.m. the previous night, the deceased had consumed liquor and under the influence thereof, he was hurling abuses at the family-members and in spite of he and the appellant trying to pacify the deceased, he did not stop doing so and, as such, the appellant got angry, but was pacified by the complainant and the appellant went to his house but returned to the house of the complainant at about 12 p.m. and told him that the deceased was continuing hurling abuses and wanted to ruin the family, but the complainant told him that the deceased would automatically go to sleep and that the appellant should go to his house and thereafter, the complainant himself went to sleep. At about 4-4.30 a.m., because of slight rain, the complainant got up but did not find the deceased sleeping on his cot, and thinking that he must have gone inside his room to sleep, the complainant went inside his own room and slept there. At about 4-4.30 a.m., because of slight rain, the complainant got up but did not find the deceased sleeping on his cot, and thinking that he must have gone inside his room to sleep, the complainant went inside his own room and slept there. After some time, he heard the cries of the wife of the deceased, from the `Gali, by the side of his house and when he, along with his wife, rushed there, they saw that the deceased was lying there, with his neck chopped off and blood was lying at the spot. He covered the deadbody with a rag and raised alarm, but no one came there, and he went to the house of the appellant, to inform him about it, but did not find him there. He reported that someone had killed his brother by cutting his neck, with a sharp-edged weapon and that he had come to the police station to lodge the report. Head-Constable Maliram made an endorsement at the foot of Ex.P. 17 and registered a case vide formal FIR No. 58/93 (Ex.P.18), under Section 302, IPC. The Head-Constable thereafter went to the spot, where he prepared a `Panchnama (Ex.P.20) in respect of the deadbody of the deceased. In the meanwhile, the Circle Officer, Deputy Superintendent of Police, Shri Ranjit Khan (the Investigating Offi- cer) reached the spot and took over the investigation. He inspected the spot and prepared the site-plan (Ex.P.19). He took into possession the blood- stained earth and plain earth vide memo (Ex.P.22). The rag, with which the deadbody of the deceased had been covered, was taken into possession by the Investigating Officer, vide memo (Ex.P.25). The Investigating Officer, also took into possession a glass- bottle, containing liquor and a steel-glass vide memo (Ex.P.24). He arrested the appellant at about 12.15 p.m. and prepared the arrest-memo (Ex.P.29) in this regard, in presence of the witnesses. At the time of his arrest, the appellant was wearing a `Pajama, having blood-stains on its lower portion and the Investigating Officer took it into possession vide memo (Ex.P.23). During the course of interro- gation, the appellant made a disclosure-statement (Ex.P.28) and got recovered a `Pharsi from inside the well, known as `Banda-ka-Kuan, situated outside the village and the `Pharsi was taken into possession by the Investigating Officer vide memo (Ex.P.27). During the course of interro- gation, the appellant made a disclosure-statement (Ex.P.28) and got recovered a `Pharsi from inside the well, known as `Banda-ka-Kuan, situated outside the village and the `Pharsi was taken into possession by the Investigating Officer vide memo (Ex.P.27). The Investigating Officer got photographed the scenes of the occurrence as also the recovery of the `Pharsi and the photographs (Exs.P.2 to P. 16) were taken by the photographer at the spot. The Investigating Officer recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure 1973, ("the Code") and sent the deadbody of the deceased for post-mortem examination, which was conducted by Dr. Yogiraj Nainpuria (PW 1) and Dr. Kantilal Chawda (PW 18). The doctors found the following injuries on the person of the deceased :– "1. Sharp wound present on upper and posterior region of right shoulder region, measuring about 22 cms. x 7 cms. x deep into bone, oblique in position (skin, muscles and bone-chips are absent). Blood-clots are present over and inside and wound. 2. Sharp wound present on upper part of left shoulder region, measuring as out 10 cms. x 3.5 cms. x deep upto bone. Transverse in position. Blood-clots are present on the inside the wound. 3. Sharp wound present on neck at the level of 1st carnical vertibrae on posterior side and just above the thyroid cartilage on anterior side. It has cut all the organs of neck at the site of wound except small piece of skin (about 5 cms.) on anterior and midline. The organs are cut as follows :- skin, muscles, 1st carnical vertibrae, spinal cord, big vessels and nerves laryanx, oesophugus, muscles and skin from posterior to anterior. Blood- clots are present in and outside the wound." They opined that the cause of death was shock, due to sharp injury to all vital organs at neck (as trachae, oesophugus, big vessels, spinal cord). They further opined that all the injuries were ante-mortem in nature. After completion of the investigation, the challan was filed in the court of the learned Munsif and Judicial Magistrate - Virat Nagar, who committed the case to the Court of Sessions, where, after the trial, the appellant was convicted and sentenced as noted above. They further opined that all the injuries were ante-mortem in nature. After completion of the investigation, the challan was filed in the court of the learned Munsif and Judicial Magistrate - Virat Nagar, who committed the case to the Court of Sessions, where, after the trial, the appellant was convicted and sentenced as noted above. Feeling aggrieved, the appellant has filed this appeal from the jail, through the Superintendent, Central Jail, Jaipur, and Shri Jinesh Jain, Advocate, had been appointed as amicus curiae, to argue the case on his behalf. (3). We have heard Shri Jinesh Jain for the appellant, the learned Public Prosecutor for the State and have also perused the record of the case. (4). From the record, we find that in support of their case, the prosecution examined Dr. Yogiraj Nainpuria (PW 1), Satish Kumar (PW 2), Laxman Singh (PW 3), Prahlad Singh (PW 4), Anup Kanwar (PW 5), Seeta Kanwar (PW 6), Geeta (PW 7), Madan Singh (PW 8), Leelaram (PW 9), Behari Singh (PW 10), Sohanlal (PW 11), Shanti (PW 12), Dhuraram (PW 13), Ganpat Ram (PW 14), Ramnath (PW 15), Maliram (PW 16), Ranjit Khan (PW 17) and Dr. Kantilal Chawada (PW 18), respec- tively. Till the time that the challan was filed by the police, against the appellant, the prosecution-case rested on the circumstantial evidence of the deceased having hurled abuses at the family members, the appellant having gone to complain against the deceased to complainant Laxman Singh (PW 3) and he having been seen coming from the house of the deceased and Laxman Singh, at about 2 a.m., besides the recovery of `Pharsi at his instance and he having been found to be wearing a blood-stained `Pajama at the time of his arrest. However, during the trial, Seeta Kanwar (PW 6), who is the widow of the deceased and Geeta (PW 7), who is the sister of Seeta and wife of Laxman Singh (PW 3), have claimed to be the eye-witnesses and as such, it would be proper to deal with the evidence of the said two witnesses before discussing the other evidence, produced by the prosecution during the trial. Seeta (PW 6), in her statement on oath, has deposed that the deceased had taken his meals and had gone to sleep, when the appellant had come to their house, awakened him and had given him liquor to drink and that at about 2 a.m. in the night, the appellant had again come to their house, had picked up the deceased and had taken him in the `Gali, where, he killed him by giving `Pharsi blows and that she had seen the occurrence and when she had come forward, the appellant had pushed her, whereupon, she fell down and became unconscious and that on regaining conscious at about 4 a.m., she had raised alarm, hearing which, Prahlad (PW 4) and his wife, besides Shanti (PW 12) had reached the spot. In her cross-examination, she deposed that the deceased was sleeping in the open space outside the house and that at about 2 a.m., she had heard a noise and had rushed outside, where, she had seen the appellant with the `Pharsi and giving blows to the deceased. She was confronted with her statement (Ex.P.3), wherein, it was recorded that she did not know, who had killed her husband and wherein it was also not stated that the appellant had picked up the deceased and had taken him to the `Gali, where he gave him `Pharsi blows. She further deposed that she had told Laxman Singh (PW 3) about the appellant having killed her husband. In her further cross-examination, she stated that after the appellant had gone away from her house after giving liquor to the deceased, he had returned there at about 2 a.m. only that night. (5). Geeta (PW 7) has deposed that on the evening, prior to the night of the occurrence, the appellant had come to their house and had given liquor to the deceased and one hour thereafter, he had again come to their house but at about 2 a.m., the appellant had killed the deceased in the `Gali and that she had seen the appellant running away with the `Pharsi and further that at about 3 a.m., her sister Seeta (PW 6) had started crying. In her cross-examination, she deposed that she was sleeping inside the room after closing its door and the room had no window and lights, but she had seen the appellant. In her cross-examination, she deposed that she was sleeping inside the room after closing its door and the room had no window and lights, but she had seen the appellant. In her further cross- examination, she stated that she had seen the deadbody at about 5 a.m. in the morning and at that time, Shanti (PW 12) had come to the spot but Prahlad Singh (PW 4) and his wife Anup Kanwar (PW 5) had not come there. She also deposed that after giving liquor to the deceased, the appellant had gone to his own house and had returned to their house at about 2 a.m. and not earlier than that. (6). Seeta Kanwar (PW 6) and Geeta (PW 7) made statements in court, contrary to their statements made before the police, inasmuch as, whereas in the statements before the police, the case, set up, was that the deceased, after taking liquor, had been hurling abuses at all the family members and the appellant had complained about it to Laxman Singh (PW 3) and later on, the deadbody of the deceased had been seen in the morning, lying in the `Gali and neither of the witnesses knew who had killed the deceased; in their statements in the court, the two witnesses have deposed in their examination-in-chief that they had seen the appellant, killing the deceased and running away with the `Pharsi from the spot. It may also be seen that in her further cross-examination, Geeta (PW 7) admitted that neither she, nor Seeta, nor anyone else had seen the occurrence. The statements of these two witnesses, therefore, are of no assistance to the prosecution, even in regard to the deceased having taken liquor, having hurled abuses at the family members and the appellant having complained about it to Laxman Singh (PW 3). (7). The case of the prosecution that the deceased had been hurling abuses at the family members, after taking liquor, finds support from the statements of Laxman Singh (PW 3), Prahlad Singh (PW 4) and Anup Kanwar (PW 5). Although, Prahlad Singh and Anup Kanwar had deposed that the deceased was hurling abuses and they had gone to advise him, but in further cross-examination, it has been stated by them that only Anup Kanwar had gone to advise the deceased. Although, Prahlad Singh and Anup Kanwar had deposed that the deceased was hurling abuses and they had gone to advise him, but in further cross-examination, it has been stated by them that only Anup Kanwar had gone to advise the deceased. The fact of Anup Kanwar having gone to advise the deceased at that time, has been denied by Laxman Singh and is also not finding support from the statement of Seeta or Geeta. The only evidence in this regard, is of Laxman Singh and the evidence only shows that the deceased was hurling abuses at the family members, after taking liquor at about 9 p.m., on l6th July, 1993, when the appellant had complained about it to his other brother Laxman Singh (PW 3). The other circumstantial evidence against the appellant, is he having been seen near the place of occurrence at about 2 a.m., on the morning of 7th July, 1993. The only witnesses in this regard, were Seeta and Geeta, besides Prahlad Singh and Anup Kanwar. The statements of Seeta and Geeta have already been discussed above, and there is no reason to place any reliance on their statements in this regard, as the case, set up by them in their statements, is quite contrary to what they told the police during the investigation and also in view of the fact that Geeta had admitted not having seen the occurrence and also that even Seeta had not talked about the appellant having caused injuries on the person of the deceased. (8). Coming to the evidence of Prahlad Singh and Anup Kanwar, it may be stated that as noted above, their statements that Anup Kanwar had gone to advise the deceased at his house, stands contradicted in the statement of Laxman Singh and does not find support from the statements of the other residents of the house; namely. Geeta and Seeta. (8). Coming to the evidence of Prahlad Singh and Anup Kanwar, it may be stated that as noted above, their statements that Anup Kanwar had gone to advise the deceased at his house, stands contradicted in the statement of Laxman Singh and does not find support from the statements of the other residents of the house; namely. Geeta and Seeta. Prahlad Singh and Anup Kanwar have deposed that they were sleeping in their house, where at about 2 a.m., they had heard some noise and on getting up, they had seen the appellant, coming out of the house of the deceased and passing from the place of occurrence in the `Gali and that when they called him, he ran away and thereafter, they had gone to the house of one Shambhu Singh, to complain about the appellant having gone to the house of Kishan Chandra at that late hour of the night. The site-plan (Ex.P.19) shows point-6 as the house of Prahlad Singh and point-1 as the house of the deceased and Laxman Singh. Points `A and `B are the rooms of the house of Laxman Singh and the deceased and point `D is the place, where the `Charpai, on which the deceased had slept that night, was lying. A perusal of the site-plan shows that from the house of Prahlad Singh, it was not possible for him or for his wife Anup Kanwar to have seen the appellant, coming out of the house of the deceased. It may also be noticed that although, Prahlad Singh had deposed that it was a moonlit night and he had seen and reconi- sed the appellant, Anup Kanwar has deposed that it was a cloudy night and that there was darkness, but that they had recognised the appellant, as they had seen him many times. In their statements, both these witnesses have deposed that in the morning when they had heard the alarm, they did not go to the spot. Prahlad Singh has claimed to be the cousin of the deceased as also of Laxman Singh and of the appellant. In their statements, both these witnesses have deposed that in the morning when they had heard the alarm, they did not go to the spot. Prahlad Singh has claimed to be the cousin of the deceased as also of Laxman Singh and of the appellant. It is strange that after hearing the noise, they got up and saw the appellant coming out of the house of the deceased and passing from the `Gali in question, but did not go to the house of the deceased on hearing the cries and the alarm, raised by Geeta and Seeta, on seeing the deadbody of the deceased. It is also strange that they did not inform Geeta, Seeta or Laxman Singh about their ha- ving seen the appellant running from the spot. The above-said conduct of Prahlad Singh and his wife, Anup Kanwar, makes their statements unbelievable. (9). The other evidence is regarding the appellant being found to be wearing a `Pajama, having blood-stains on its lower portion. (10). Madan Singh (PW 8), Leelaram (PW 9) and Behari Singh (PW 10) are the witnesses of the recovery-memo (Ex.P.23), under which, the blood-stained `Pajama is stated to have been taken into possession from the person of the appellant. Neither of these witnesses has deposed about the presence of blood on the `Pajama of the appellant. On the contrary, Leelaram (PW 9) in his cross- examination, has deposed that he had not seen any blood on the `Pajama, which had been taken into possession vide memo (Ex.P.23). (11). The prosecution has also relied on the circumstantial evidence of the recovery of the `Pharsi at the instance of the appellant. (12). While appearing as PW 17, the Investigating Officer has deposed that after his arrest, the appellant had made a disclosure- statement to the effect that the `Pharsi was lying in the well, known as `Banda-ka-Kuan, situated outside the village and that he could get it recovered and he (the Investigating Officer) recorded Exhibit P.28 as the disclosure-statement of the appellant and thereafter, at the instance of the appellant, the `Pharsi was recovered from the well in question and was taken into possession vide memo (Ex.P.27). The arrest-memo shows the time of the arrest to be 12.15 p.m., the time of disclosure- statement to be 1 p.m. and time of the recovery-memo to be 2 p.m., on 7th July, 1993. The arrest-memo shows the time of the arrest to be 12.15 p.m., the time of disclosure- statement to be 1 p.m. and time of the recovery-memo to be 2 p.m., on 7th July, 1993. Dhuraram (PW 13), Ganpatram (PW 14) and Ramnath (PW 15) are the three witnesses of the recovery of the `Pharsi and are shown to have attested the recovery-memo (Ex.P.27), made at the spot in respect thereof. According to this recovery-memo (Ex.P.27), the appellant had taken the Investigating Officer in presence of Ganpatram (PW 14) and Ramnath (PW 15) and had pointed out the well, wherein the `Pharsi was lying and Dhuraram (PW 13) had gone inside the well and had taken out the `Pharsi, having blood on its blade and the Investigating Officer had taken it into possession and had converted it into a sealed packet and further that even the bamboo, on which the `Pharsi had been fixed, was having blood on its lower portion. (13). In his statement on oath, Dhuraram (PW 13) has deposed that at the asking of the police, with whom the accused was also present, he had gone inside the well and had taken out the `Pharsi, which he handed over to the police. In his cross-examination, he has deposed that he had not seen any blood on the `Pharsi and could not give the particulars of the blade of the `Pharsi and further that when the `Pharsi was recovered from the well, the appellant was sitting in the jeep and had not gone to the well. He has further stated that the police had not converted the `Pharsi into a sealed packet. (14). Ganpatram (PW 14) has deposed that he had gone to the village for getting an injection, when he saw the deadbody of the deceased and the police present there and at the asking of the police, he had gone with them in a jeep, with Dhuraram and the appellant and that at the well, Ramnath (PW 15) had also come and Dhuraram, with the help of the rope, got down in the well, from where, the `Pharsi was taken out by him and was handed over to the police, who took it into possession vide memo (Ex.P.27), which has been attested by him. In cross-examination, he deposed that the memo (Ex.P.27) had not been prepared in his presence and further that the `Pharsi was Gandasa-type and he had not seen any blood on its blade. (15). Ramnath (PW 15) has deposed that the police had come in a jeep, to the well in the village and the appellant was sitting in the jeep and at that time, Dhuraram had taken out the `Pharsi from inside the well and handed it over to the police, who had made certaining writings, which were attested by some persons. In cross-examination, he deposed that he had not accompanied the police to the well but that he had gone to the well, on seeing the police and that he did not remember, whether any blood was there on the `Pharsi or not and that in his presence, the `Pharsi was not converted into a sealed parcel. (16). Neither of the above-said three witnesses of the recovery has stated that the appellant had made any disclosure-statement or had led the police to the well or had pointed out the well to the police, from which, the `Pharsi was taken out. (17). According to Satish Kumar (PW 2), the photographer of Virat Nagar, on 7th July, 1993, the police had taken him to the spot and he had taken photograph (Exs.P.2 to P.16) and during all that period, the appellant was present at the spot with the police. (18). Exhibit P.8 is the photograph, showing the courtyard in front of the house of Laxman Singh and the deceased, where, before the occurrence, Laxman Singh, his mother and the deceased had slept and Exs. P. 9 and 10 are the copies of Exhibit P.8. Exhibit P. 3 is the photograph, showing the `Gali, in which, the deadbody of the deceased was lying by the side of a broken wall and Exhibits P.6 and P.12 are the copies of Exhibit P.3. Exhibit P.5 is the photograph of the deceased, lying in the `Gali, from a different angle and Exhibits P.11 and P.13 are the copies of Exhibit P.5. Exhibit P.7 is the photograph, showing the Investigating Officer, with the police staff and the accused in handcuffs and presence of some persons at the wall of the well and Exhibits P.15 and Exhibits P.16 are the copies of Exhibit P.7. Exhibit P.7 is the photograph, showing the Investigating Officer, with the police staff and the accused in handcuffs and presence of some persons at the wall of the well and Exhibits P.15 and Exhibits P.16 are the copies of Exhibit P.7. Exhibit P.2 is the photograph of a person (Dhuraram, PW 13) inside the well, with the portion under his waist, under the water and holding two ropes in his left hand and one bamboo in his right hand and Exhibits P.4 and P.14 are the copies of Exhibit P.2. In this way, in all, five photographs; three of the place of occurrence and two of the well, from which, the `Pharsi was recovered, have been proved on record. (19). The Investigating Officer has not stated about the place, from where the appellant was arrested, but according to the photographer, the appellant remained present with the police throughout the time that he remained with them and took the photographs. There is no statement of the Investigating Officer about the time, place and the names of the persons present, when the appellant made the disclosure-statement, which was recorded as Exhibit P.28. Since, according to the Investigating Officer, he had left the spot, after completing the investigation, the disclo- sure- statement, if any, could have been made by the appellant only at or near the spot, where the photographer and/or other witnesses must have been present due to the fact that the deceased had been murdered and his deadbody was lying there. No witness has uttered a word about the appellant having made any disclosure-statement and even neither of the above-said three witnesses of the recovery, has stated about the appellant having led the police-party to the well in question or having pointed out the same before the `Pharsi was recovered from it, but on the contrary, in cross- examination, it has been stated that the police had come to the well in a jeep and the appellant continued sitting in the jeep and had not come to the spot at the time of the recovery of the `Pharsi. It, therefore, shows that the pho- tographs (Ex. P.7 and P.2) were taken after the recovery of the `Pharsi. There is thus no convincing evidence that the `Pharsi was recovered at the instance of the appellant or that the appellant made the disclosure-statement (Ex.P.28). It, therefore, shows that the pho- tographs (Ex. P.7 and P.2) were taken after the recovery of the `Pharsi. There is thus no convincing evidence that the `Pharsi was recovered at the instance of the appellant or that the appellant made the disclosure-statement (Ex.P.28). Even otherwise, it is strange that although the `Pharsi was thrown into the well, where it kept on lying under the water till the time it was recovered, it was having blood. (20). Even if it be believed that the `Pharsi was recovered by the police at the instance of the appellant, there is no evidence to connect the said `Pharsi with the offence, inasmuch as, neither the `Pharsi has been produced in the court, nor was it shown to the doctor, when he conducted the post-mortem examination, or even at the time when he made the statement in the court. (21). No report of the FSL has been produced on the record, to show that the `Pajama, recovered from the person of the appellant or the `Pharsi, which was not expected to have blood on its blade after its recovery from under the water, had any blood-stains thereon. The evidence regarding the recovery of the `Pajama, which too was not produced in the court during the trial and regarding the recovery of the `Pharsi is, therefore, of no assistance to the prosecution. (22). In view of the specific statement, made during the cross- examination, by Dr. Yogiraj Nainpuria (PW 1) that at the time of the post-mortem examination, no smell of liquor was coming from the body of the deceased doubt is cast on the prosecution-case that the deceased had consumed liquor after about 9 p.m. on 6th July, 1993 and was hurling abuses at all the members of the family and was murdered at 2 a.m. on 7th July, 1993. Even if it be believed that the deceased was, in fact, hurling abuses at all the family members (and not only at the appellant), there was no reason why the appellant ought to have murdered the deceased on that count. The motive for the crime is also thus not proved by the prosecution. (23). There is another aspect of the matter. The motive for the crime is also thus not proved by the prosecution. (23). There is another aspect of the matter. According to the prosecution-case, Laxman Singh (PW 3) had come to the Police Station- Virat Nagar, at about 6 a.m. on the morning of 7th July, 1993 and had presented the report (Ex.P.17), on the basis of which, the formal FIR (Ex.P.18) was recorded. According to the unchallenged statement of Laxman Singh (PW 3), his wife had told him on the morning of 7th July, 1993, at about 4.30 a.m. that the deceased was lying murdered in the `Gali and he went to the spot and saw the deceased lying, with his neck chopped off and thereafter, he had gone to the house of the appellant, to inform him and on not finding the appellant, he had gone to the house of Ganpat Singh, who owned a tractor and requested him to accompany him to the police station, but on his refusal to do so, he had come back and had seen a lot of police force present there. This shows that the police had received the information regarding the murder of the deceased, long before 6 a.m., when Exhibit P.17 is stated to have been presented by Laxman Singh (PW 3), who has specifically stated that his statement (Ex.P.17) was taken at the spot and that he had not gone to the police station for that purpose. The information on the basis of which the police reached the spot at about 4 a.m. on 7th July, 1993, has also not been produced on record. (24). It may also be noticed that although, the FIR (Ex.P.18) is shown to have been recorded at Police Station Virat Nagar, at about 6 a.m. on the morning of 7th July, 1993, the endorsement, made by the learned Munsif and Judicial Magistrate, Virat Nagar, on this document, shows that it was received by him in the court at 10.30 a.m. on 8th July, 1993. (25). (25). Section 157 of the Code, casts a duty on the Officer Incharge of the police station to send a copy of the first information report to the Magistrate concerned forthwith on its being recorded and either to proceed to the spot himself or to depute one of his subordinate officers, to investigate the facts and circumstances of the case and, if necessary, to take measures for discovery and arrest of the offender. The use of word, "forthwith" by the legislature, makes it clear that copy of the FIR has to be sent to the Magistrate concerned, without any delay and further that the acts of sending the copy to the Magistrate and proceeding to the spot have to be two simultaneous acts. The fact that the learned Magistrate, who is also having his court at Virat Nagar, received the copy of the FIR after 28 hours of its alleged recording, casts a doubt about the prosecution-story even about the time of recording of the FIR at the police station, and it cannot be said that the argument that it is a post-investigative document, is without substance. (26). For the reasons mentioned above, we are of the view that the learned trial court erred in ignoring the important aspects of the matter and convicting the appellant and further that the appellant is entitled to be acquitted. (27). Consequently, we accept the appeal, set aside the conviction and sen- tence passed by the learned trial court, against the appellant and acquit him. He is in jail and should be released forthwith, unless wanted in some other case. (28). Before parting with this judgment, we must record our appreciation for the able assistance, given to us by Shri Jinest Jain, the learned Amicus Curiae and for the hard work done by him in preparing this case and arguing it on behalf of the appellant.