The Supreme Court on Thursday (Aug. 8) reversed the conviction in a murder case after noting serious loopholes regarding the registration of the First Information Report.
The Court found that the FIR was registered not on the basis of the actual first information, but on the basis of a subsequent complaint. The Court said that such a “post-investigation” FIR does not inspire confidence.
The bench comprising Justices BR Gavai and Sandeep Mehta noted that the FIR in the case, was not in fact the “first information” and that the information relating to the offence was received even before the official FIR was registered.
In this case, a police constable Demistalkumar (PW 12) was stated to be an eyewitness to the crime. It came out during the trial that PW12 had gone to the police station with weapons recovered from the crime scene; however, neither FIR was lodged by PW 12 nor his statements were recorded.
The FIR was lodged much later based on the information by one Mohammad Arif Memon (PW-11).
“There cannot be any doubt that the first version of the incident as narrated by the Police Constable, Demistalkumar(PW-12) would be required to be treated as the FIR and the complaint lodged by Mohammad Arif Memon(PW-11) would be relegated to the category of a statement under Section 161 CrPC and nothing beyond that. The same could not have been treated to be the FIR as it would be hit by Section 162 CrPC. Evidently thus, the prosecution is guilty of concealing the initial version from the Court and hence, an adverse inference deserves to be drawn against the prosecution on this count.”, the court said
The accused contended since PW 12 was an “eyewitness who had produced the weapons used in the commission of the crime and had also been questioned about the incident at the police station at the earliest point of time, his statement which presumably was the first detailed disclosure about the incident, would have assumed the character of an FIR. However, his statement was never brought on record, which tantamounted to deliberate concealment by the prosecution. These proceedings which took place at the police station would definitely have been recorded in the daily diary(roznamcha) maintained at the police station. However, these vital aspects of the case have been intentionally withheld by the prosecution who failed to produce the corresponding daily diary entry before the Court, warranting an adverse inference to be drawn.”
The Judgment authored by Justice Sandeep Mehta opined that the information supplied by PW 11 cannot be considered FIR and would be treated as a statement made during the investigation and hit by Section 162 Cr.P.C.
Reference was made to the case of State of A.P. v. Punati Ramulu and Others reported in 1994 Supp (1) SCC 590 where the court held that “when the investigating officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have stopped to fabricate evidence and create false clues.”
Suppression of Case Diary
The Court also found it suspicious that the case diary was not produced.
“We find it improbable and totally unacceptable that a police constable had seen the incident and had also brought the crime weapons to the police station and yet his statement would not be recorded and the factum of presentation of weapons would not be entered in the daily diary(roznamcha) of the police station.”, the court observed.
“Since the Police Constable, Demistalkumar(PW-12) claiming to be an eyewitness to the heinous assault had reported at the police station with the crime weapons, there was no reason whatsoever as to why his statement would not have been recorded immediately on his arrival at the police station. From the circumstances discussed above, a reasonable doubt is created in the mind of the Court that the statement of Demistalkumar(PW-12) would definitely have been recorded in the daily diary(roznamcha) but his version may not have suited the prosecution case and that is why, the daily diary entry was never brought on record. Non-production of the daily diary is a serious omission on part of the prosecution.”, the court added.
Further, the court noted that the production of a case diary would have made clear whether the complaint was made in written form or orally as there was a contradiction in the statements made by PW 11 relating to the time, place and mode of the complaint.
Also, a reference was made to a recent case of Babu Sahebagouda Rudragoudar and Others v. State of Karnataka reported in 2024 LiveLaw (SC) 316 where also the significance of the case diary was highlighted to resolve a contradiction, same as in the present case, as the complainant was unable to show whether the complaint was made as a written complaint or reduced to writing by police i.e., oral complaint.
“there is a grave contradiction on this important aspect as to whether the report was submitted by the complainant(PW-1) in the form of a written complaint or whether the oral statement of complainant(PW-1) was recorded by the police officials at his home leading to the registration of FIR(Exhibit P-10). The non-production of the Daily Dairy maintained at the police station assumes great significance in the backdrop of these facts. Apparently thus, the FIR (Exhibit P-10) is a post investigation document and does not inspire confidence.”, the court stated in Babu Sahebagouda Rudragoudar.
Contradictions regarding the timing of the FIR
The Court after marshalling the evidence placed on record discredited the testimony supplied by the PW 11 after noting contradictions in the version deposed by him.
“Whilst Mohammad Arif Memon(PW-11), the first informant categorically stated that he drafted the complaint and submitted it at the Anand Town Police Station, but in total contradiction thereto, S.N. Ghori, PSI(PW-17) stated that the complaint was registered on the basis of the oral statement of the first informant, Mohammad Arif Memon(PW-11) which he took down in writing at the Krishna Medical Hospital, Karamsad.”, the court contradicted the version deposed by PW 11.
Thus, from the version set out in the examination-in-chief of the first informant(PW-11), there is a grave discrepancy regarding the time and place of complaining, the court said.
Neither the time of recording of the FIR was mentioned nor there was endorsement as to the date and time on which the said FIR reached the Court concerned.
After finding that the prosecution was not able to prove the guilt of the accused beyond the reasonable, the Court gave the benefit of the doubt to the appellant-accused and acquitted them of the offence charged.
The appeal was allowed.
Appearances:
For Appellant(s) For Appellant/ Mr. Divyesh Pratap Singh, AOR Accused No.3 Ms. Shivangi Singh, Adv. Mr. Amit Sangwan, Adv.
For Appellant/ Mr. Rishi Malhotra, AOR Accused No.1 Mr. Utkarsh Singh, Adv.
For Appellant/ Mr. Praveen Chaturvedi, AOR Accused No.2
For Respondent(s) Ms. Deepanwita Priyanka, Adv. Ms. Swati Ghildiyal, AOR Ms. Devyani Bhatt, Adv.
Case Details: ALLARAKHA HABIB MEMON ETC. VERSUS STATE OF GUJARAT, CRIMINAL APPEAL NO(S). 2828-2829 OF 2023
Citation : 2024 LiveLaw (SC) 562
