Defence can rely on the unmarked document
16. In the present case, it would be prudent to start the discussion by taking note of the conduct of the maternal uncle (PW-1), his wife (PW2) and natural mother (PW-3) of the deceased. They accept that information about the death of Laxmi was received by them between 10.00 a.m. to 12.30 p.m. on 22.05.1993. They also accept the fact that they had reached the place of occurrence. Body of the deceased was cremated on 22.05.1993. There is some dispute as to whether these persons were present at the time of cremation. According to them, deceased was cremated before they reached the village of the appellant. To falsify this position taken by the prosecution through these witnesses, the learned counsel for the appellant had taken us to the evidence of PW-8 who had drawn Mahazar near the well. This Mahazar coupled with the statement of PW-8 is a very significant piece of evidence which has considerable effect in denting the creditworthiness of the testimony of these witnesses. As per PW-8 himself, when he had reached the spot, it was the mother of the deceased who pointed out the place where the dead body was lying. This assertion amply demonstrates that mother of the deceased had known where the body was kept and she along with PW-1 and PW-2 had reached the place of occurrence before the dead body was cremated. Relying upon this evidence, the trial court has disbelieved the story of the prosecution that Laxmi was cremated even before these persons had reached the village of the appellant. Strangely, the High Court has discarded Mahazar drawn by PW-8 by giving a spacious reason viz. it was not an exhibited document before the Court, little realising that this was the document produced by the prosecution itself and even without formal proof thereto by the prosecution, it was always open for the defence to seek reliance on such an evidence to falsify the prosecution version. Moreover, PW-8 has specifically referred to this document in his evidence. It is also a matter of record that a specific suggestion was made to PW-3 (mother of the deceased) in the cross-examination to the effect that it is she who had pointed out the place of the dead body lying near the well to the Police personnel. The version of PW-1 to PW-3 that they reached the village of the appellant after Laxmi had already been cremated, does not inspire confidence and appears to be mendacious.
Delay in lodging fir: Explanation necessary
28. We may hasten to add here that many times in such type of cases, there can be reasons for keeping quite at the given time and not reporting the matter immediately. Therefore, we are conscious of the legal position that delay per se may not render prosecution case doubtful as there may be various reasons for lodging the FIR with some delay (see Sahebrao and another v. State of Maharashtra, (2006) 9 SCC 794). Thus, there is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. However, what is emphasised is that if that was so, it was necessary for the prosecution to at least come forward with the explanation as to why the complainant kept quite and why he did not report the matter to the Police immediately. No such explanation is coming forward in the present case. Moreover, in the instant case, the delay is seen as fatal when examined in juxtaposition with other material that has come on record and discussed above, which shakes the veracity of prosecution case, bringing it within the four corners of doubtful prosecution story.
Party
RAMAIAH @ RAMA vs STATE OF KARNATAKA – CRIMINAL APPEAL NO.1671 OF 2011 – August 7, 2014.
