In
Kanhaiya Lal & Ors. Vs. State of Rajasthan, Criminal Appeal No. 1108 of 2006,
(date of decision 22.04.2013), the Hon’ble Supreme Court discussed whether mere
delay in lodging FIR can be regards as fatal to the case of prosecution?
The
Court held that:
“It is settled in law that mere delay in
lodging the First Information Report cannot be regarded by itself as fatal to
the case of the prosecution. However, it is obligatory on the part of the court
to take notice of the delay and examine, in the backdrop of the case, whether
any acceptable explanation has been offered, by the prosecution and if such an
explanation has been offered whether the same deserves acceptance being found
to be satisfactory. [Para 12]
“…the fact that the report was lodged
belatedly is a relevant fact of which the court must take notice. This fact has
to be considered in the light of other facts and circumstances of the case,
and, in a given case, the court may be satisfied that the delay in lodging the
report has been sufficiently explained. In the light of the totality of the
evidence, the court has to consider whether the delay in lodging the report
adversely affects the case of the prosecution. That is a matter of appreciation
of evidence. There may be cases where there is direct evidence to explain the
delay.
Even in the absence of direct explanation,
there may be circumstances appearing on record, which provide a reasonable
explanation for the delay. There are cases where much time is consumed in
taking the injured to the hospital for medical aid and, therefore, the
witnesses find no time to lodge the report promptly. There may also be cases
where on account of fear and threats, witnesses may avoid going to the police
station immediately. The time of occurrence, the distance to the police station,
mode of conveyance available, are all factors, which have a bearing on the
question of delay in lodging of the report. It is also possible to conceive of
cases where the victim and the members of his or her family belong to such a
strata of society that they may not even be aware of their right to report the
matter to the police and seek legal action, nor was any such advice available
to them. [Para 13]
“…on account of delay, the FIR not only gets
bereft of the advantage of spontaneity but also danger of introduction of a
coloured version or exaggerated story.” [Para 14]
“Thus, whether the delay creates a dent in
the prosecution story and ushers in suspicion has to be gathered by
scrutinizing the explanation offered for the delay in the light of the totality
of the facts and circumstances. Greater degree of care and caution is required
on the part of the court to appreciate the evidence to satisfy itself relating
to the explanation of the factum of delay.” [Para 15]
The
Court discussed following cases laws
“State
of H.P. v. Gian Chand” (2001) 6 SCC 71,
wherein a three-Judge Bench of this Court has expressed thus:
“Delay in lodging the FIR cannot be used as a
ritualistic formula for doubting the prosecution case and discarding the same
solely on the ground of delay in lodging the first information report. Delay
has the effect of putting the court on its guard to search if any explanation
has been offered for the delay, and if offered, whether it is satisfactory or
not. If the prosecution fails to satisfactorily explain the delay and there is
a possibility of embellishment in the prosecution version on account of such
delay, the delay would be fatal to the prosecution. However, if the delay is
explained to the satisfaction of the court, the delay cannot by itself be a
ground for disbelieving and discarding the entire prosecution case.”
"Ramdas
and others v. State of Maharashtra", (2007) 2 SCC 170, where the Court held:
“mere delay in lodging the first information
report is not necessarily fatal to the case of the prosecution”
"Meharaj
Singh v. State of U.P." (1994) 5 SCC 188,
where in the Court observed as follows:
“FIR
in a criminal case and particularly in a murder case is a vital and valuable
piece of evidence for the purpose of appreciating the evidence led at the trial
and the object of insisting upon prompt lodging of the FIR is to obtain the
earliest information regarding the circumstance in which the crime was
committed, including the names of the actual culprits and the parts played by
them, the weapons, if any, used, as also the names of the eyewitnesses, if any,
for delay in lodgment of the FIR results in embellishment which is a creation
of afterthought.”
"Kilakkatha
Parambath Sasi and others v. State of Kerala", AIR 2011 SC 1064, t.he Court
observed:
“when
an FIR has been lodged belatedly, an inference can rightly follow that the
prosecution story may not be true but equally on the other side, if it is found
that there is no delay in the recording of the FIR, it does not mean that the
prosecution story stands immeasurably strengthened.”
On
the facts and circumstances of the case the Court noted following points:
(i)
It is clear as crystal that the occurrence had taken place at night. True it
is, the house of Purshottam was surrounded sometime at 5.00 p.m. on 28.6.2001,
but the real crime, the assault and the murder took place after midnight. The
ghastly and gruesome crime must have sent a shiver in the spine and shattered
the brains and bones of the witnesses to the crime and shock, panic and
inequilibrium would have reigned simultaneously to leave them totally
confounded. No one could have dared to move an inch towards the police station,
for man’s basic instinct prompts him to survive first and then think about any
other action.
(ii)
The informant, brother of the deceased, has clearly deposed that he and others
were in a terrible state of trauma to proceed to the police station to lodge an
FIR. After the day broke, they mustered courage and proceeded towards the
police station and lodged the FIR at 6.45 a.m. on 29.6.2001.
(iii)
As noticed earlier, a delayed FIR can usher in craftsmanship, manipulation and
embellishment and may make the prosecution story vulnerable, but when the delay
has been adequately explained, the same deserves acceptation.