JUDGMENT By the Court.—Those who swear by violence, also end up in violence. William Shakespeare (Friar Lawrence to Romeo in ‘Romeo and Juliet’ Act 2 Scene 5) put it in different context, ‘These violent delights have violent ends’. This appeal is a reminder. THE FACTS 2. An incident happened at 8:00 p.m. on 10.7.1979. In this incident one Prahlad (the Deceased) was killed and his mother Anchhi (the Injured-deceased) was injured. Later, she died in the hospital on 27.7.1979 at 5:00 a.m. 3. An FIR (Case Crime No. 226 of 1979 under Sections 147, 148, 149, 302, IPC, Police Station Partapur, District Meerut) was lodged on the day of the incident at 11:20 p.m. by Rajveer (the Informant). It was scribed by Ramveer. They are brothers of the Deceased and sons of the Injured-deceased. 4. The allegations in the FIR are as follows : The Deceased was coming to his father’s house. When he reached in front of the house of Prabhu, 17 persons namely, Lakhmi S/o Bajey, Ram Kumar, Sharda, Indraj, Sheoraj, Veer Pal, Singram, Lakhmi S/o Mamraj, Desha, Ratan, Jai Prakash, Babu, Tilak Ram, Vijai Pal, Shri Ram, Santra Pal and Rishi (Appellant-1 to 17 respectively) came out from different sides and places (Prabhu’s house and Baithak, Khacheru’s house, and from Hansha’s Gher). They were armed with spears, fire arms and pharsa; Desha (Appellant-9) and Santar (Appellant-16) exhorted others that the Deceased involves them in false cases and he be killed today; Appellant-16 fired the shots on the Deceased, Tilak Ram, Vijay Pal and Shree Ram (Appellants-13 to 15) with spears, Rishi (Appellant-17) with pharsa and rest of the assailants (Appellants-1 to 12) with lathis started hitting the Deceased; The Deceased started shouting and hearing his voice, the Informant, his mother Angchhi (the Injured-deceased) ran towards him. The Injured-deceased went to save the Deceased then she was also hit by lathi and spear; After hearing this noise, Hansa, Hoshram, Tek Chandra and many other villagers came on the spot and saw the incident. 5. The police investigated the case and submitted the charge-sheet against the seventeen named assailants. The case was committed to the Court of session and registered as ST No. 533 of 1979. 5. The police investigated the case and submitted the charge-sheet against the seventeen named assailants. The case was committed to the Court of session and registered as ST No. 533 of 1979. The 7th Additional Sessions Judge, Meerut (the ASJ) framed charge against all of them on 4.3.1980 for committing murder of Prahlad (the Deceased) and Angchhi (the Injured-deceased) as follows : 12 accused namely, Lakhmi S/o Bajey, Ram Kumar, Sharda, Indraj, Sheoraj, Veer Pal, Singram, Lakhmi S/o Mamraj, Desha, Ratan, Jai Prakash and Babu (Appellants-1 to 12) were charged under Section 302 read with 149 and 147 IPC; 5 accused namely, Tilak Ram, Vijai Pal, Shri Ram, Santra Pal and Rishi (Appellants-13 to 17) were charged under Section 302 read with Section 149 and 148 IPC. 6. Among others, the prosecution filed the following documents: FIR (Ex Ka-16); Copy of report (Ex Ka-1); Copy of report No. 26 time 11:20 dated 10.7.1979 (Ex Ka-17); Recovery memo of blood stained and plain soil (Ex Ka-12); Recovery memo of Empty Cartridges (Ex Ka-13); Inquest report of the Deceased (Ex Ka-8); Post mortem of Prahlad (Ex Ka-2); Injury report of Angchhi (Ex Ka-10); Post mortem of Angchhi (Ex Ka-3); Inquest dated 11.7.1979 (Ex Ka-8); Site Plan with the Index ( Ex Ka-14). 7. The prosecution examined the following witnesses : Rajveer (PW-1) : Informant and eyewitness; Dr. VP Singh (PW-2) : Doctor, conducted the post mortem of the Deceased as well as of the Injured-deceased; Hosh Ram (PW-3) : Eye-witness; Tek Chand (PW-4) : Eye-witness; Malloo Singh (PW-5) : Constable, carried the dead body of the Deceased; Nardev Singh (PW-6) : Sub-Inspector, conducted inquest of the Injured-deceased; Ram Ratan Singh (PW-7): Investigating Officer (IO), conducted inquest. 8. The accused were examined under Section 313 Cr.P.C. on 14.7.1982. The defence neither filed any documents nor examined any witness. 9. The ASJ by his judgement dated 6.9.1982 convicted the accused and sentenced them as follows: (i) Lakhmi S/o Bajey, Ram Kumar, Sharda, Indraj, Sheoraj, Veer Pal, Singram, Lakhmi S/o Mamraj, Desha, Ratan, Jai Prakash and Babu, (Appellants-1 to 12) were sentenced to, Two years rigorous imprisonment under Section 147 IPC; Imprisonment for life under Section 302 read with Section 149 IPC. (ii)Tilak Ram, Vijai Pal, Shri Ram, Santra Pal and Rishi (Appellants-13 to 17) were sentenced to, Three years rigorous imprisonment under Section 148 IPC; Imprisonment for life under Section 302 read with Section 149 IPC The sentences are to run concurrently. Hence the present appeal. POINTS FOR DETERMINATION 10. During the pendency of the appeal Sharda (Appellant-3); Veerpal (Appellant-6); Singhram (Appellant-7); Desha (Appellant-9); Ratan (Appellant-10) and Tilak Ram (Appellant-13) died. Their appeal was abated on 17.11.2008. 11. We have heard Sri PN Misra and Sri Rahul Mishra counsel for the remaining appellants; Sri Arunendra Kumar Singh, AGA for the State.1 The following points arise for determination in the case : (i) Whether the statement of the Injured-deceased before the police was admissible in evidence. (ii) Whether the Appellants are guilty of the crime. 1st POINT: STATEMENT OF INJURED-DECEASED ADMISSIBLE 12. The prosecution case is that : The Injured-deceased rushed to save the Deceased and in that process she was injured; The IO (PW-7) recorded her statement in the hospital on 12.7.1979 {statement of IO (PW-7) paragraph 6}; She was taken to the hospital; and She died in the hospital on 27.7.1979 at 5:00 a.m. 13. This statement of the Injured-deceased was neither proved, nor filed. The case diary, which contains the same, is also not on record. The question is, (i) Was this statement admissible? (ii) In case the answer to the aforesaid question is in affirmative and it was admissible, then why was it neither filed nor proved? (iii) What is the effect of its non-filing? Should an adverse inference be drawn against the prosecution? 14. Chapter XII of the Cr.P.C. is titled as ‘INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE’. Section 160 is titled as ‘Police officer’s power to require attendance of witnesses’; Section 161 is titled as ‘Examination of witnesses by police’; and Section 162 is titled as ‘Statements to police not to be signed—Use of statements in evidence’. 15. The aforesaid Sections empower the police to investigate and examine witnesses, and record their statements. Sub-section 1 of Section 162 {Section 162(1)} of the Cr.P.C. stipulates that the statement if reduced to writing will not be signed by the person making it. 16. The copies of these statements are to be given to the accused. They can be used only for limited purposes but not for all. Sub-section 1 of Section 162 {Section 162(1)} of the Cr.P.C. stipulates that the statement if reduced to writing will not be signed by the person making it. 16. The copies of these statements are to be given to the accused. They can be used only for limited purposes but not for all. The proviso to Section 162(1) Cr.P.C. indicates that they can be used by the accused to contradict the witness in the manner provided under Section 145 of the Evidence Act. 17. The proviso to Section 162(1) Cr.P.C. is not the only exception regarding use of the statements recorded by the police. Sub-section (2) of Section 162, Section 162 (2) Cr.P.C. is an independent sub-section: it is also in the nature of an exception. It provides that the statement can be used in evidence if it falls : Under Section 27 of the Evidence Act and relates to discovery in consequence of information received from a person accused of any offence; or Under sub-section (1) of Section 32, section 32(1) of the Evidence Act. 18. Section 32(1) of the Evidence Act makes statements (written or verbal) of a person admissible if, He is dead; and The statement relates to cause of his death. Such a statement is referred to as a dying declaration. 19. A statement made to the police under Section 162 (1) would be admissible if it is in nature of a dying declaration. It is another question what weight should be attached to it. In fact, dying declaration should preferably be before a magistrate. In its absence the Court may not attach as much importance to it as it does to a dying declaration before the Magistrate. It was also so held in State of Assam v. Bhelu Sheikh, 1989 Supp (2) SCC 1; Munnu Raja v. State of M.P., AIR 1976 SC 2199 ; Dalip Singh v. State of Punjab, 1979, Cr LJ (SC) 700 (the Dalip Singh case).2 20. In this case, the charge against the appellants is for committing murder of the Deceased as well as of the Injured-deceased. The question relating to the death of the Injured-deceased is involved in this case. This case is covered by Section 32(1) of the Evidence Act. The statement of the Injured-deceased, if it was proved, was admissible. 21. Dr. V.P. Singh conducted the post-mortem of the Deceased as well as of Injured-deceased. The question relating to the death of the Injured-deceased is involved in this case. This case is covered by Section 32(1) of the Evidence Act. The statement of the Injured-deceased, if it was proved, was admissible. 21. Dr. V.P. Singh conducted the post-mortem of the Deceased as well as of Injured-deceased. The post-mortem (Ex Ka-3) of the Injured-deceased indicates that she died due to Anaemia, Septicaemia and Emaciation as a result of injuries received in the incident. It indicates that she was in fit condition to make the statement. It is surprising that : Her statement was not recorded before the Magistrate; and Even the evidence, which was recorded was not proved in the Court. 22. The answer to the first point mentioned in paragraph 13 of the judgment is in affirmative. The statement of the Injured-deceased was admissible. The next two questions mentioned in that paragraph-its effect-will be discussed under next point sub heading ‘VIIth. Adverse Inference-statement of Injured-deceased Not Filed’ 2nd POINT: PROSECUTION CASE-DOUBTFUL 23. The AGA submitted that: (ii) The presence of the three eye-witnesses (PW-1, PW-3 and PW-4) examined on behalf of the prosecution cannot be doubted because : If Injured-deceased could reach the spot on hearing the shouting of the Deceased so can the other eye-witnesses; There is no contradiction between the prosecution case and the ocular testimony; (ii) The eye-witnesses have proved the prosecution case; (iii) It is open and shut case. It does not require any interference by this Court. 24. But, is it so? Is this case so simple? We have our doubts about it. Here are reasons for the our doubts. (i) FIR Ante-Timed 25. The incident is alleged to have taken place at 8:00pm and the ocular evidence is also to the same effect. The FIR is said to be lodged at 11:20pm. Was it so lodged at this time or was it antetimed. 26. The FIR is scribed by Ramvir brother of the Deceased. He was not examined by the prosecution. Rajvir (the Informant) (PW-1) has affixed his thumb impression on the same. It is said that he is the one, who had gone the police station which is 8 Km from the place of the incident to lodge it. Nakal Rapat 26 (Ex Ka-17) indicates that informant himself was at the police station to lodge the FIR. 27. Rajvir (the Informant) (PW-1) has affixed his thumb impression on the same. It is said that he is the one, who had gone the police station which is 8 Km from the place of the incident to lodge it. Nakal Rapat 26 (Ex Ka-17) indicates that informant himself was at the police station to lodge the FIR. 27. The Informant (PW-1) deposed in the cross-examination that: All villagers had come over after the incident; The Injured-deceased (his mother) had fainted due to injuries. The police came in the night and she was sent with some constables but the Informant never went with her The Informant remained on the spot till 8-9am on the next day morning near the dead body of the Deceased. The dead body of the Deceased went at about 8-9am for medical. 28. The deposition of the Informant (PW-1) is clear that he was on the spot alongwith the Injured-deceased till she was there then with the dead body of the Deceased till the next day morning (8-9am of 11.7.1979) though, the GD entry indicates that he was present at the police station at 11:00pm to lodge report 8 Km away. This is contradictory. 29. To us it appears that : The police came to know of the incidence independently from village Chaukidar or someone else; They could be keeping track of the Deceased as he was a criminal and history- sheeter (see sub heading ‘Xth: Deceased was a Criminal’)’ The police reached the spot in the night. The IO (PW-7) has also deposed that he had reached the spot in the night; The FIR was lodged on the next date or thereafter. In our opinion the FIR is ante-timed. ; (ii) Prosecution Documents Interpolation Made 30. Recovery memo of blood stained and plain earth is Ex Ka-12 and recovery of empty cartridge is Ex Ka-13. No witness of these documents have been examined but the IO (PW-7) has proved the same. He was questioned that in both of these documents the crime number and Sections have been added afterwards in a different ink. He denied it and deposed that it was incorrect to say that the crime number and Section had been included by different ink. 31. However, a bare look at these documents shows that the crime number and Section mentioned are in different ink and were added afterwards. His statement is incorrect. He denied it and deposed that it was incorrect to say that the crime number and Section had been included by different ink. 31. However, a bare look at these documents shows that the crime number and Section mentioned are in different ink and were added afterwards. His statement is incorrect. Why did he do that? 32. The AGA submitted that: (i) The IO (PW-7) also deposed that at that time, He had worked only for 3-31/2 years; and It was his first investigation under Section 302 IPC. (ii) It was merely defective investigation due to inexperience no benefit can be given to the defence. 33. Had he deposed that due to inexperience he did not add the crime number, Sections in the recovery memos and added them afterwards-the matter was different. But he chose to depose something which was apparently false. It is not a question of defective investigation it is a question of false deposition. This creates doubt about his deposition and the authenticity of the investigation. (iii) Mistake in the Inquest 34. The IO (PW-7) deposed that he reached the spot in the night. This was also so deposed by the Informant (PW-1). The inquest was done on the next day morning (11.7.1979) at about 7:00 a.m. The IO has explained (paragraph-15 of his deposition) it was lack of light and no arrangement could be made for the same in the night. 35. The Informant (PW-1) deposed that the Injured-deceased was taken to the hospital in the night alongwith 2-3 constables. The IO (PW-7) deposed the same, but clarified that : The Injured-deceased was sent alongwith Tejram constable in the night; and Thereafter, he met Tejram constable for the first time on 12.7.1979 at the police station. 36. However in the Panchnama which was done on 11.7.1979 at 7:00am the presence of Tejram, constable is shown. This is apparently incorrect in view of depositions of the Informant (PW-1) and the IO (PW-7). 37. The IO (PW-7) has admitted his mistake (Paragraph 11 of cross-examination) that the name of Tejram was mentioned by mistake in the inquest. 38. It is possible that it could have been a mistake. Nonetheless, the surprising part is that if Tejram was already sent by IO alongwith the Injured-deceased and was nowhere to be seen on the spot then how such a mistake was committed. 38. It is possible that it could have been a mistake. Nonetheless, the surprising part is that if Tejram was already sent by IO alongwith the Injured-deceased and was nowhere to be seen on the spot then how such a mistake was committed. This creates doubts regarding validity, genuineness, and authenticity of the investigation. (iv) No Independent Witness 39. The eye-witnesses and the Deceased are related to each other. Their pedigree is as follows : Roshan Mahboob Shri Ram Dhan Singh Diwan Singh Tekchandra (PW-4) Randhir = Anchhi Champat (the Injured-Deceased) Hoshram Prahlad Rajveer Ramveer (PW-3) (Deceased) (Informant) (Scribe of FIR) (PW-1) 40. The aforesaid pedigree is admitted by Hoshram (PW-3). However, this relation was denied by the Informant (PW-1) as well as Tek Chand (PW-4). Why did they deny the relationship: was it because they wanted to be seen as independent witness and not as partisan witnesses from the same family. 41. It is relevant to point out that FIR allegations and ocular evidence that all villagers had come over, yet surprisingly not a single independent witness was examined. Non-examination of an independent witness is not fatal but merely creates a doubt in our mind. (v) There was no Light 42. The 10th July 1979 was Tuesday, (Shravan Krishna (Badi) 1 Samvat 2036). Shabe-Barat fell on this day. The 9th July 1979 was a Monday; it was day of Guru Purnima (Asharh Shukla (Sudi) 15 Samvat 2036). That is to say on 10th July was the day, after the full moon: the moon would have risen on 10.7.1979 at about 7:00pm and at the time of the incident there would be sufficient light. Moon would be something that cannot be missed by anyone. However, neither in the FIR nor in the ocular evidence there is any mention of moon light. 43. July is the rainy season. It appears that it was cloudy at the time of the incident and the moon was hidden in the clouds. 44. Neither any other source of light is mentioned in the FIR nor deposed to by the eye-witnesses. The only source of light which is indicated in the deposition is that sun had set but the darkness was not such that the assailants could not be recognised. At 8:00 p.m. the sun is fully set in July and there is no sufficient light. The only source of light which is indicated in the deposition is that sun had set but the darkness was not such that the assailants could not be recognised. At 8:00 p.m. the sun is fully set in July and there is no sufficient light. This creates doubt in our mind whether assailants could be recognised or not. 45. There was neither moon light nor any other source of light to recognise the persons. It is said that there were seventeen persons; it would be difficult to recognise them. This creates doubts in our mind whether assailants could have been recognised or not. (vi) Presence of Eye-witnesses doubtful 46. The prosecution case is that the Deceased was going to his father’s house and when he reached in front of the house of Prabhu, the appellants came out from different directions, armed with spears, fire arms, and pharsa. They hit the Deceased. It was on his shouting that the Injured-deceased and other eye-witnesses allegedly reached the spot. It is neither the prosecution case nor there is ocular evidence that the Injured-deceased and the eye-witnesses were accompanying the Deceased. They rushed to the spot only on the shouting of the Deceased. 47. IO (PW-7) was asked a question in the cross-examination whether the presence of eye-witnesses was indicated by Champa and Garaj. The answer to this question was that they did not say anything about these witnesses. 48. It is correct that if the Injured-deceased could reach the spot then other witnesses could also reach the spot. But surprisingly, the Injured-deceased tried to save the Deceased and in that process received injuries; but none of the eye-witnesses, who were of the same family tried to save the Deceased or the Injured-deceased. This creates a doubt in our mind regarding their presence of the eye-witnesses on the spot at the time of the incident. (vii) Adverse Inference-Statement of Injured-deceased Not Filed 49. While discussing the first point, we have held that the statement recorded by the IO (PW-7) of the Injured-deceased was admissible under Section 162(2) Cr.P.C. read with Section 32(1) of the Evidence Act. However, it was neither filed nor proved. It was not as authentic as made before a Magistrate but atleast it would have shown how the incident happened and who were involved in it. However, it was neither filed nor proved. It was not as authentic as made before a Magistrate but atleast it would have shown how the incident happened and who were involved in it. We tried to look into the case diary so that we may get it proved but the case diary is also not on record. 50. We thought of summoning the case diary and getting the statement proved here in the appeal. But the AGA brought to our notice Appendix-I of the Police Regulation. It indicates the list of Registers and File book to be maintained at police station. Entry 23 provides that case diary is to be maintained only for five years. This incident happened 31 years ago. He expressed his inability to produce it. 51. It is surprising that the prosecution did not prove the dying declaration: why was it withheld? This was material evidence especially because there is doubt regarding light and presence of the eye-witness. The presence of the Injured-deceased on the spot, at the time of the incident, cannot be doubted as she received injuries and ultimately succumbed to the same. She was close to assailants also and was in best position to recognise them. 52. Was the statement of the Injured-deceased withheld because it did not contain the name of the appellants or because it had some, but not all the names-is a lingering doubt in our minds. (viii) No or Weak Motive 53. It is correct that even if motive is not proved, the accused can be convicted if prosecution proves its case beyond reasonable doubt. Nonetheless while considering the question whether prosecution has proved its case beyond reasonable doubt or not, it is relevant to consider it. 54. Here seventeen persons are accused of committing the crime. The Deceased was a Gujar by caste. Some of the appellants are said to be Brahmins, some are said to be Gujar. They are of the same village and some of them are related but they belong to different families. They are said to have come together and killed the Deceased and the Injured-Deceased got killed in the process to save the Deceased. If the prosecution case is correct then they must have planned together to commit the crime and must have known that the Deceased would pass through that place. They are said to have come together and killed the Deceased and the Injured-Deceased got killed in the process to save the Deceased. If the prosecution case is correct then they must have planned together to commit the crime and must have known that the Deceased would pass through that place. There is no such evidence that they knew that the Deceased would pass through that place at that time. 55. The motive has been disclosed by the Informant (PW-1) (paragraph -3 of his (deposition) as follows : Appellants-1 and 2 had entered inside the house of one Khajan Kumhar. The Deceased brought Natthu Kumhar and housed him there; Appellant-5 used to cultivate the fields of one Bijendra. It was purchased by the Deceased; The Deceased had filed a case against Appellant-9 and 10; 56. The facts regarding the alleged motive are as follows : Natthu Kumhar has not been examined to establish that he had been housed by the Deceased; There is no sale-deed of the property relating to Brijendra. There is nothing to show what kind of case was filed by the Deceased against Appellant-9 and 10. Was it a civil or criminal case? Was it serious or frivolous. If it was a criminal case, then neither its FIR nor complaint has been filed. 57. Even the allegations relating to motive are taken to be correct, it covers only five of the accused. Why would the remaining 12 accused join to murder the Deceased. Even the motive against the five is too weak to kill a person. 58. The Informant (PW-1) admitted that he was convicted under the Arms Act as well in dacoity. (ix) Deceased was a Criminal 59. The Deceased was also a criminal. The IO (PW-7) in his statement has admitted that the Deceased was a history-sheeter and a convict. The Informant (PW-1) has admitted in his cross-examination that the Deceased was charged with numerous dacoity case. It is clear from the ocular evidence that the Deceased was of a person of criminal mind and lived a violent life. 60. ‘Violence is the last refuge of the incompetent’3 for violence begets violence. Those who play with violence, swear by violence: also end up in violence. The Deceased was of criminal bent of mind; it is just possible that there was another person who wanted to prove his supremacy and it ended like this. 60. ‘Violence is the last refuge of the incompetent’3 for violence begets violence. Those who play with violence, swear by violence: also end up in violence. The Deceased was of criminal bent of mind; it is just possible that there was another person who wanted to prove his supremacy and it ended like this. But who did it, is not clear. It is unfortunate that the mother of the Deceased (the Injured-deceased) was an innocent victim in the incident. 61. There is no evidence that any of the appellants have criminal history; there is no motive against 12 of them and weak motive even against the remaining five; the presence of eye-witness at the time of the incident is doubtful; there is no source of light to recognise the assailants; the prosecution neither filed the statement of Injured-deceased who was admittedly on the spot nor proved it; the Deceased was criminal bent of mind and believed in violence: anyone could have killed him-these factors combined together to create a doubt in our mind regarding complicity of the appellants. They are given benefit of doubt. CONCLUSIONS 62. Our conclusions are, (i) The prosecution is not able to prove its case beyond reasonable doubt. (ii) The appellants are entitled to the r benefit of doubt; 63. In view of our conclusions, the appeal is allowed and the conviction and sentence dated 6.9.1982 passed in ST No. 533 of 1979 by Vth Additional Sessions judge, Meerut is set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and their sureties are discharged. ————