REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1235 of 2005

Brahm Swaroop & Anr. …Appellants

Versus

State of U.P. …Respondent

With

Criminal Appeal Nos. 1295-1296 of 2005

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1.These appeals have been preferred against the judgment and

order dated 4

th

May, 2005, of the High Court of Judicature at

Allahabad, passed in Criminal Appeal No. 6180 of 2003, along with

Criminal Appeal Nos.3749 of 2003 and 4648 of 2004, against the

judgment and order of the Sessions court, Bareilly dated 5

th

August,

2003, in Sessions Trial No. 855 of 2001 in Crime No. 384/2000.

2.Fact and circumstances giving rise to these appeals are as

under:

(A)First Information Report No.239/2000 was lodged on 31

st

May,

2000 at 3.20 P.M. by Atar Singh (PW.1) at Police Station Bahedi,

Distt. Bareilly. It stated that his grand father Natthu Singh @

Raghunath Singh had an enmity with the family of one Nem Chand

Gangwar and on that date he along with Natthu Singh @ Raghunath

Singh, Rajendra Singh @ Goli, Virendra Singh, Dharam Pal Singh,

Rajendra Singh and Satyapal Singh had come to Bahedi to get the

Dynamo of their Jeep No. DDA 6162 repaired. Natthu Singh @

Raghunath Singh was sitting at the counter of the repairing shop,

while Dharam Pal Singh and Rajendra Singh were sitting in the Jeep.

Virendra Singh was standing in front of the Jeep. Gyanendra Singh

kept his gun in the Jeep near Dharam Pal Singh and went towards the

grove to urinate. At about 3.00 P.M., Nem Chand Gangwar (A.1) and

his sons Balwant (A.2) and Chandra Pal (A.3), Jogendra (A.4),

Brahm Swaroop (A.5) and Jagdish Baggar (A.6) armed with deadly

weapons came there and started firing, after surrounding these persons

with their respective weapons. Nem Chand Gangwar (A.1) assaulted

Natthu Singh (D.1) with his Kanta. He died on the spot. Rajendra

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Singh (D.2) and Dharampal Singh (D.4) received serious injuries by

fire arm and became unconscious. Virendra Singh (D.3) fell near the

Jeep after receiving fire arm injuries. The informant, Atar Singh

(PW.1) also received injuries in the incident. Brahm Swaroop (A.5)

took away the rifle of Rajendra Singh (D.2) and Jagdish Baggar (A.6)

took away the licensed gun of Gyanendra. It was also alleged that the

chap Serial No. 5809 of the gun of the accused had fallen on the spot.

All the three injured persons were taken to the hospital at Bahedi.

Rajendra Singh (PW.2) and Satyapal Singh also witnessed the

incident.

(B)After investigation of the case, the prosecution submitted the

chargesheet under Sections 396, 148, 302 read with 149, 307/149 of

the Indian Penal Code, 1860 (hereinafter called the IPC). Brahm

Swaroop (A.5) and Balwant (A.2) were further charged under Section

25 of the Arms Act (hereinafter referred to as `Arms Act’). During the

trial, the prosecution examined 12 witnesses to prove its case. After

considering the whole case and appreciating the evidence, on the

conclusion of the trial, the Sessions court vide judgment and order

dated 5

th

August, 2003, in Sessions Trial No. 855 of 2001 acquitted

Brahm Swaroop (A.5) and Jagdish Baggar (A.6) of all the charges

3

under Sections 148, 302, 149, 307, 396, 424 I.P.C. and Section 25 of

the Arms Act. Chandra Pal (A.3) and Balwant (A.2) were convicted

under Section 302 read with 34 I.P.C. and were awarded death

sentence and a fine of Rs.5,000/- and, in case of failure to deposit the

fine, six months imprisonment in addition. Nem Chand Gangwar

(A.1) and Jogendra (A.4) were convicted under Sections 302/34 I.P.C.

and awarded imprisonment for life with fine of Rs. 10,000/- each, and

in case of failure to deposit the fine, one year further imprisonment.

Nem Chand Gangwar (A.1) and Jogendra (A.4) were further

convicted under Sections 307/34 I.P.C. and awarded 10 years rigorous

imprisonment and fine of Rs.5000/- each and in case of failure to

deposit the fine, they would undergo 6 months imprisonment in

addition.

(C)Being aggrieved by the aforesaid judgment and order of the

Sessions Court, three appeals bearing Criminal Appeal No. 4648 of

2004, Criminal Appeal No. 3749 of 2003 and Government Appeal

No. 6180 of 2003 were filed before the High Court of Judicature at

Allahabad. The High Court vide its judgment and order dated 4

th

May, 2005, disposed of the aforesaid three appeals by the impugned

common judgment and order dismissing the appeals filed by the

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convicts, however, with the modification that the sentence of death

imposed by the trial court on Chandra Pal (A.3) and Balwant (A.2)

was altered to life imprisonment. The Government appeal against

acquittal of Braham Swaroop (A.5) and Jagdish Baggar (A.6) stood

allowed, and they were convicted under Section 302 read with 34

I.P.C. and sentenced to undergo imprisonment for life with a fine of

Rs.10,000/- and, in default of payment of fine, rigorous imprisonment

for a further period of one year. Both the said accused were further

convicted under Sections 307/34 I.P.C. and sentenced to undergo 10

years rigorous imprisonment with a fine of Rs.5,000/- each and, in

default of payment of fine, for a further period of six months R.I. The

High Court directed that all the punishments would run concurrently.

However, their acquittal for the offences under Section 25 of the Arms

Act, was upheld.

3.Shri K.T.S. Tulsi, learned senior counsel appearing for the

appellants in all three appeals, has submitted that the place of

occurrence is not free from doubt for the reason that no blood stained

earth had been lifted from the place near the Jeep and no blood stains

were found in the Jeep. The incident had occurred at the residence of

Natthu Singh @ Raghunath Singh (D.1) as an entry has been made in

5

this regard in the General Diary at about 11.00 A.M. and the

investigating officer Raj Guru, Inspector, P.S. Bahedi (PW.10) had

gone to that place. The prosecution did not disclose the genesis of the

case correctly. Natthu Singh @ Raghunath Singh (D.1) was a history-

sheeter and a large number of criminal cases were pending against

him. Virendra Singh (D.3) and Dharampal Singh (D.4) were involved

in criminal cases and facing trial in the said cases. Therefore, they

have large number of enemies and the whole case of the prosecution

becomes totally improbable. Had the incident occurred as alleged by

the prosecution, the Jeep should have got some bullet marks as

Rajendra Singh (D.2) and Virendra Singh (D.3) were sitting in the

Jeep. Neither were any bullet marks on the Jeep nor had any pellets

been recovered from the Jeep or the nearby area. An FIR had initially

been registered under Section 396 I.P.C. and, in view of the fact, that

one of the victims died on the spot and another died enroute to the

hospital, had the prosecution given the correct version of events, the

FIR ought to have been registered under Sections 302 and 307 I.P.C.

along with other Sections. The inquest has been manipulated and

there are five blanks therein which make the whole prosecution case

doubtful. The use of weapons was not established. The Magistrate

6

received the Special Report after five days. Atar Singh (PW.1) could

not tell names of the father of Brahm Swaroop (A.5) as well as of

Jagdish Baggar (A.6) though the same had been mentioned in the FIR

lodged by him. The prosecution did not examine any independent

witness. The reversal of the acquittal of Brahm Swaroop (A.5) and

Jagdish Baggar (A.6) by the High Court is totally unwarranted and

unjustified. Thus, the appeals deserve to be allowed.

4.On the contrary, Shri Shail Kumar Dwivedi, learned Additional

Advocate General for the State of U.P., has vehemently opposed the

appeals, contending that the FIR had been lodged promptly; without

any loss of time. The incident occurred at 3.00 P.M. and the FIR had

been lodged at 3.20 P.M. on the same day giving the names of all the

accused; the soil containing blood was mentioned in General Diary.

The omission of the names of fathers of Brahm Swaroop (A.5) and

Jagdish Baggar (A.6) cannot be fatal to the prosecution case and it is

not necessary that the informant must be aware of all the contents of

the FIR itself. The prosecution examined the injured witness, who

would not spare the real culprits and involve someone falsely. The

deposition of the injured witness has to be given due weightage. The

manner in which the inquest report is made, has to be ignored as law

7

does not require to it to furnish all the information and it is not

necessary to fill up the names of all the accused. Even if the Special

Report reached the Judicial Magistrate at a belated stage, it would not

be fatal to the prosecution case. The prosecution case is duly

supported by the medical evidence and though the eye witnesses were

closely related to the deceased persons, their depositions are required

to be examined with care and caution, but cannot be ignored. Minor

discrepancies in the evidence, cannot adversely affect the prosecution

case. Thus, the appeals are liable to be dismissed.

5.We have considered the rival contentions of the parties and

perused the evidence on record.

Legal Issue

Inquest : Section 174 Cr.P.C.

6.Undoubtedly, there are five blanks in the inquest report. The

crime number and names of the accused have not been filled up. The

column for filling up the penal provisions under which offences have

been committed is blank. The time of incident and time of dispatch of

the special report have not been mentioned. Therefore, Shri Tulsi has

8

submitted that the FIR is ante-timed and there is manipulation in the

case of the prosecution.

7.The whole purpose of preparing an inquest report under Section

174 of the Code of Criminal Procedure, 1973 (hereinafter referred to

as ‘Cr.P.C’) is to investigate into and draw up a report of the apparent

cause of death, describing such wounds as may be found on the body

of the deceased and stating as in what manner, or by what weapon or

instrument such wounds appear to have been inflicted. For the

purpose of holding the inquest it is neither necessary nor obligatory on

the part of the Investigating Officer to investigate into or ascertain

who were the persons responsible for the death. The object of the

proceedings under Section 174 Cr.PC is merely to ascertain whether a

person died under suspicious circumstances or met with an unnatural

death and, if so, what was its apparent cause. The question regarding

the details of how the deceased was assaulted or who assaulted him or

under what circumstances he was assaulted is foreign to the ambit and

scope of such proceedings i.e. the inquest report is not the statement

of any person wherein all the names of the persons accused must be

mentioned. Omissions in the inquest report are not sufficient to

9

put the prosecution out of court. The basic purpose of holding an

inquest is to report regarding the apparent cause of death, namely,

whether it is suicidal, homicidal, accidental or by some machinery etc.

It is, therefore, not necessary to enter all the details of the overt acts in

the inquest report. Evidence of eyewitnesses can not be discarded if

their names do not figure in the inquest report prepared at the earliest

point of time. The inquest report cannot be treated as substantive

evidence but may be utilised for contradicting the witnesses of

inquest. (See Podda Narayana & Ors. v. State of Andhra Pradesh,

AIR 1975 SC 1252; Khujji v. State of Madhya Pradesh, AIR 1991

SC 1853; George & Ors. v. State of Kerala & Anr., (1998) 4 SCC

605; Shaikh Ayub v. State of Maharashtra, (1998) 9 SCC 521;

Suresh Rai v. State of Bihar, (2000) 4 SCC 84; Amar Singh v.

Balwinder Singh & Ors., (2003) 2 SCC 518; Radha Mohan Singh

alias Lal Sahab & Ors. v. State of Uttar Pradesh, (2006) 2 SCC

450; and Aqeel Ahmad v. State of Uttar Pradesh, AIR 2009 SC

1271).

8.In Radha Mohan Singh (supra), a three judge bench of this

Court held:

1

“No argument on the basis of an alleged

discrepancy, overwriting, omission or

contradiction in the inquest report can be

entertained unless the attention of the author

thereof is drawn to the said fact and he is given an

opportunity to explain when he is examined as a

witness in court.”

(Emphasis added)

9.Even where, the attention of the author of the inquest is drawn

to the alleged discrepancy, overwriting, omission or contradiction in

the inquest report and the author in his deposition has also admitted

that through a mistake he omitted to mention the crime number in the

inquest report, this Court has held that just because the author of the

report had not been diligent did not mean that reliable and clinching

evidence adduced by the eyewitnesses should be discarded by the

Court. (Vide: Dr. Krishna Pal & Anr. v. State of Uttar Pradesh,

(1996) 7 SCC 194).

10.In view of the law referred to hereinabove it cannot be held that

any omission or discrepancy in the inquest is fatal to the prosecution’s

case and such omissions would necessarily lead to the inference that

FIR is ante-timed. Shri N.K. Sharma Sub Inspector (PW.7) had denied

the suggestion made by defence that till the time of preparing the

1

report the names of the accused persons were not available. He further

stated that the column for filling up the nature of weapons used in the

crime was left open as it could be ascertained only by the Doctor

what weapons had been used in the crime. Thus, the submissions

made in this regard are preposterous.

Delay in sending report to the Magistrate :

11.Undoubtedly, there is delay of 5 days in sending the Special

Report. This Court in Badam Singh v. State of M.P., (2003) 12 SCC

792, while considering this issue held that where the investigating

officer categorically stated that he was not in a position to give any

explanation for the delay in sending the Special Report, it may be fatal

to the prosecution’s case.

12.However, a larger Bench of three Judges in Balram Singh &

Anr. v. State of Punjab, (2003) 11 SCC 286, held as under:

“10…..we notice that in reality there is no delay in

preparing the FIR but there was some delay in

transmitting the said information to the Jurisdictional

Magistrate. Having been satisfied with the fact that the

FIR in question was registered in the morning of 6-5-

1990, we do not think that the delay thereafter in

communicating it to the Jurisdictional Magistrate on the

facts of this case, has really given any room to doubt that

the said document (FIR) was created after much

1

deliberations. At any rate, while considering the

complaint of the appellants in regard to the delay in the

FIR reaching the Jurisdictional Magistrate, we will have

to also bear in mind the creditworthiness of the ocular

evidence adduced by the prosecution and if we find that

such ocular evidence is worthy of acceptance, the

element of delay in registering a complaint or sending

the same to the Jurisdictional Magistrate by itself would

not in any manner weaken the prosecution case.”

13.In State of Rajasthan v. Teja Singh & Ors., (2001) 3 SCC

147, this Court held that the receipt of special report by the Magistrate

is a question of fact and the prosecution may explain the delay in

sending the special report. However, the explanation so furnished by

the prosecution must be convincing and acceptable. The same view

has been re-iterated in Ramesh Baburao Devaskar & Ors. v. State

of Maharashtra, (2007) 13 SCC 501.

14.In Sarvesh Narain Shukla v. Daroga Singh & Ors., AIR

2008 SC 320, this Court held that delay in forwarding the Special

Report to the Magistrate could not raise a suspicion that FIR had been

written later and was ante-timed. Suspicion of manipulation of the

documents prepared during the initial investigation would not

dislodge the documentary and oral evidence on the spontaneity of the

lodging of the FIR.

1

15.In Aqeel Ahmad (supra), this Court held that the forwarding of

the report to the Magistrate is indispensable and absolute and it must

be sent at the earliest, promptly and without any undue delay as the

purpose is to avoid the possibility of improvement in the prosecution’s

case and the introduction of a distorted version by deliberations and

consultation and to enable Magistrate concerned to keep a watch on

progress of investigation. However, no rule of universal application

can be laid down that whenever there is some delay in sending the

FIR to the Magistrate, the prosecution version becomes unreliable. It

would depend upon the facts of each case. If there has been some

lapse on the part of the Investigating Officer that would not affect

the credibility of the prosecution’s witnesses.

16.In State of Kerala v. Anilachandran @ Madhu & Ors., AIR

2009 SC 1866, this Court placed reliance upon its earlier judgments

in Pala Singh v. State of Punjab, AIR 1972 SC 2679; and Sarwan

Singh v. State of Punjab, AIR 1976 SC 2304 and held that the police

should not unnecessarily delay sending the FIR to the Magistrate as

the delay affords the opportunity to introduce improvement and

embellishment thereby resulting in a distorted version of the

1

occurrence. However, in case the prosecution offers a satisfactory

explanation for the delay, the court has to test it. An un-explained

delay by itself may not be fatal, but it is certainly a relevant aspect

which can be taken note of while considering the role of the

accused persons for the offence.

A similar view has been re-iterated in Pandurang

Chandrakant Mhatre & Ors. v. State of Maharashtra, (2009) 10

SCC 773.

17.In Akbar Sheikh & Ors. v. State of W.B., (2009) 7 SCC 415,

this Court held as under:

“44. Submission of Mr Ghosh that the first information

report is ante-timed cannot be accepted. It is possible

that PW 1 because of lapse of time has made certain

statements which go beyond the record viz. holding of

inquest before the FIR was recorded. The number of

accused persons in the first information report might

have also been put by the investigating officer at a later

point of time. The fact that the post-mortem examination

had been held on 16-5-1982 itself goes a long way to

establish the genesis of the occurrence. While saying so,

we are not unmindful of the fact that the first information

report was sent to the Magistrate after twenty-four

hours. But then, in a case of this nature such a delay may

not, by itself, be held to be fatal”.

18.In the instant case, the defence did not put any question in this

regard to the investigating officer Raj Guru (PW.10), thus, no

1

explanation was required to be furnished by him on this issue. Thus,

the prosecution had not been asked to explain the delay in sending the

special report. More so, the submission made by Shri Tulsi that the

FIR was ante-timed cannot be accepted in view of the evidence

available on record which goes to show that the FIR had been lodged

promptly within 20 minutes of the incident as the Police Station was

only 1 k.m. away from the place of occurrence and names of all the

accused had been mentioned in the FIR. Dr. Nar Singh Bahadur

(PW.4) examined Virendra Singh (D.3) on 31

st

May, 2000 itself at

5.40 p.m. and had noted fire arm injures on his body and opined that

the injuries were fresh in nature. Dr. Anshu Kumar Agrawal (PW.6)

had examined Atar Singh (PW.1) on 31

st

May, 2000 itself at 3.50 p.m.

and had noted multiple pellet wounds with surrounding charring over

anterior surface of left thigh middle part and a single pellet wound

over the anterior surface at right arm lower part. Dr. K.K. Saxena

(PW.5), Radiologist conducted an X-Ray examination of Attar Singh

(PW.1) on 31.5.2000 and found three small rounded radio opaque

with metallic density and F.B. Shadow on middle of left thigh and

right arm.

1

The prompt lodging of the FIR is proved from the chik report

and the statement of the complainant under section 161 Cr.P.C., which

was recorded immediately after lodging the FIR. Any defect in the

preparation of the inquest report by the investigating officer cannot

lead to an inference that the FIR was not registered at the alleged time.

The FIR contains all the essential features of the prosecution’s case

including names of eye witnesses, time and place of incident, names

of the victim, motive, name of the accused persons, weapons in their

hands and manner of assault. Thus, all these things lend a seal of

assurance not only to the presence of eye witnesses at the place of the

incident, but also to the participation of the appellants in the crime.

Courts attach great importance to the prompt lodging of FIR and

prompt interrogation of a witness under Section 161 Cr.P.C. as the

same substantially eliminates the chances of embellishment and

concoction creeping into the account contained therein.

19.It has further been submitted by Shri Tulsi that the place of

occurrence is not free from doubt as it has been stated by the

investigating officer, Raj Guru, Inspector, P.S. Bahedi (PW.10) that

on receiving the phone call at 11.00 A.M. purported to have been

made from the residence of Natthu Singh @ Raghunath Singh (D.1)

1

that dacoits had attacked them he made an entry in the General Diary,

and proceeded to that place and recorded the statement of some

persons there. The vehicle in which Rajendra Singh (D.2) and

Dharampal Singh (D.4) were sitting did not have any blood marks and

no blood stains were found near the jeep and no pellets had been

recovered from the said place. On the contrary, Shri Shail Kumar

Dwivedi, Addl. Advocate General has submitted that cement

containing blood stains from the counter had been collected and

proved. So far as the alleged incident at 11.00 A.M. is concerned, the

investigating officer, Raj Guru, Inspector, P.S. Bahedi (PW.10) had

stated that “this was the conspiracy to misguide the police and to drive

it out of the Kasba.”

20.If we accept the submissions made by Shri Tulsi then the

question of collecting the blood stained cement from the counter of

the repairing shop could not arise. Shri Raj Guru I.O. (PW.10) has

stated that the tool box was found marked with splinters and badly

damaged. More so, the statement of Atar Singh (PW.1), the informant,

cannot be ignored as he has stated that Virendra Singh (D.3) was

bleeding but blood did not fall on the ground as Virendra Singh’s

(D.3) clothes absorbed all the blood. He had further stated that Natthu

1

Singh @ Raghunath Singh (D.1) was sitting at the counter and there

was quite a lot of blood from the wounds of Natthu Singh (D.1) which

fell on the ground and not on the counter. In view of the above, we do

not find any force in the submissions made by Shri Tulsi in this

regard.

21.Merely because the witnesses were closely related to the

deceased persons, their testimonies cannot be discarded. Their

relationship to one of the parties is not a factor that effects the

credibility of a witness, more so, a relation would not conceal the

actual culprit and make allegations against an innocent person. A

party has to lay down a factual foundation and prove by leading

impeccable evidence in respect of its false implication. However, in

such cases, the court has to adopt a careful approach and analyse the

evidence to find out whether it is cogent and credible evidence. (Vide:

Dalip Singh & Ors. v. State of Punjab, AIR 1953 SC 364; Masalti

v. State of U.P., AIR 1965 SC 202; Lehna v. State of Haryana,

(2002) 3 SCC 76; and Rizan & Anr. v. State of Chhattisgarh

Through The Chief Secretary, Government of Chhatisgarh,

Raipur, Chhatisgarh, (2003) 2 SCC 661).

1

Injured witness Attar Singh (PW.1) has been examined, his

testimony cannot be discarded, as his presence on the spot cannot be

doubted, particularly, in view of the fact that immediately after

lodging of FIR, the injured witness had been medically examined

without any loss of time on the same day. The injured witness had

been put through a grueling cross-examination but nothing can be

elicited to discredit his testimony.

22. Where a witness to the occurrence has himself been injured in

the incident, the testimony of such a witness is generally considered to

be very reliable, as he is a witness that comes with a built-in guarantee

of his presence at the scene of the crime and is unlikely to spare his

actual assailant(s) in order to falsely implicate someone. “Convincing

evidence is required to discredit an injured witness”. (Vide: State of

U.P. v. Kishan Chand & Ors., (2004) 7 SCC 629; Krishan & Ors.v.

State of Haryana, (2006) 12 SCC 459; Dinesh Kumar v. State of

Rajasthan, (2008) 8 SCC 270; Jarnail Singh & Ors. v. State of

Punjab, (2009) 9 SCC 719; Vishnu & Ors. v. State of Rajasthan,

(2009) 10 SCC 477; Anna Reddy Sambasiva Reddy & Ors. v. State

2

of Andhra Pradesh, AIR 2009 SC 2661; and Balraje @ Trimbak v.

State of Maharashtra, (2010) 6 SCC 673).

23.In such a fact-situation though Natthu Singh @ Raghunath

Singh (D.1) was history-sheeter and Rajendra Singh (D.2) and

Dharampal Singh (D.4) had criminal cases against them and they had

large number of enemies, it cannot be inferred that somebody else

had killed them.

Discrepancies and inconsistencies in depositions of witnesses:

24.It has been submitted by learned Senior counsel for the

appellants that there is a contradiction between the medical and ocular

evidence. From the post mortem report of Virendra Singh (D.3)

(Ext.Ka-8), it is evident that his body was having contusions; the post

mortem report of Rajendra Singh (D.2) (Ext.Ka-9) reveals that he was

having abrasions; and the post mortem report of Nathu Singh (D.1)

(Ext.Ka-10) also reveal several abrasions. The High Court has given

cogent reasons explaining these discrepancies by saying that at the

time of firing, the deceased must have reacted to the assault and might

have received some abrasions and contusions in order to save

themselves. Rajendra Singh (PW.2) has stated that he remained at the

2

place of occurrence till 7 p.m. and he denied his signatures. The High

Court has furnished a cogent explanation for such contradiction, and

held that his statement had been recorded after 3 years of the incident

and thus, such infirmity is bound to occur but does not affect the

credibility of the witnesses.

25.It is a settled legal proposition that while appreciating the

evidence of a witness, minor discrepancies on trivial matters, which

do not affect the core of the prosecution’s case, may not prompt the

Court to reject the evidence in its entirety. “Irrelevant details which

do not in any way corrode the credibility of a witness cannot be

labelled as omissions or contradictions.” Difference in some minor

detail, which does not otherwise affect the core of the prosecution

case, even if present, would not itself prompt the court to reject the

evidence on minor variations and discrepancies. After exercising care

and caution and sifting through the evidence to separate truth from

untruth, exaggeration and improvements, the court comes to a

conclusion as to whether the residuary evidence is sufficient to

convict the accused. Thus, an undue importance should not be

attached to omissions, contradictions and discrepancies which do not

2

go to the heart of the matter and shake the basic version of the

prosecution witness. As the mental capabilities of a human being

cannot be expected to be attuned to absorb all the details, minor

discrepancies are bound to occur in the statements of witnesses. (See:

State of U.P. v. M.K. Anthony, AIR 1985 SC 48; and State of

Rajasthan v. Om Prakash, AIR 2007 SC 2257; State v. Saravanan

& Anr., AIR 2009 SC 152; and Prithu @ Prithi Chand & Anr. v.

State of Himachal Pradesh, (2009) 11 SCC 588).

Appeal against Acquittal :

26.It is well established in law that the appellate court should not

ordinarily set aside a judgment of acquittal in a case where two views

are possible, though the view of the appellate court may be more, the

probable one. While dealing with a judgment of acquittal, the

appellate court must consider the entire evidence on record, so as to

arrive at a finding as to whether the views of the trial Court were

perverse or otherwise unsustainable. The appellate court is entitled to

consider whether in arriving at a finding of fact, the trial Court had

failed to take into consideration any admissible evidence and/or had

taken into consideration evidence brought on record contrary to law.

2

Similarly, the incorrect placing of the burden of proof may also be a

subject matter of scrutiny by the appellate court. The court of appeal

may not interfere where two views are possible for the reason that in

such a case it can be held that prosecution failed to prove the case

beyond reasonable doubt and accused is entitled for benefit of doubt.

(Vide: Balak Ram & Anr. v. State of U.P., AIR 1974 SC 2165;

Allarakha K Mansuri v. State of Gujarat, (2002) 3 SCC 57;

Raghunath v. State of Haryana, (2003) 1 SCC 398; State of U.P. v.

Ram Veer Singh & Ors., AIR 2007 SC 3075; S. Rama Krishna v.

S. Rami Reddy (D) by his LRs. & Ors., AIR 2008 SC 2066;

Sambhaji Hindurao Deshmukh & Ors. v. State of Maharashtra,

(2008) 11 SCC 186; Arulvelu & Anr. v. State, (2009) 10 SCC 206;

Perla Somasekhara Reddy & Ors. v. State of A.P., (2009) 16 SCC

98; and Ram Singh alias Chhaju v. State of Himachal Pradesh,

(2010) 2 SCC 445).

27.In Sheo Swaroop and Ors. v. King Emperor, AIR 1934 PC

227, the Privy Council held as under:

“...the High Court should and will always give

proper weight and consideration to such matters

as (1) the views of the trial Judge as to the

2

credibility of the witnesses, (2) the presumption of

innocence in favour of the accused, a presumption

certainly not weakened by the fact that he has been

acquitted at his trial, (3) the right of the accused to

the benefit of any doubt, and (4) the slowness of an

appellate court in disturbing a finding of fact

arrived at by a Judge who had the advantage of

seeing the witnesses....”

28.In Chandrappa and Ors. v. State of Karnataka, (2007) 4

SCC 415, this Court observed as under:

“(1) An appellate court has full power to review,

re-appreciate and reconsider the evidence upon

which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no

limitation, restriction or condition on exercise of

such power and an appellate court on the evidence

before it may reach its own conclusion, both on

questions of fact and of law.

(3) Various expressions, such as, "substantial and

compelling reasons", "good and sufficient

grounds", "very strong circumstances", "distorted

conclusions", "glaring mistakes", etc. are not

intended to curtail extensive powers of an

appellate court in an appeal against acquittal.

Such phraseologies are more in the nature of

"flourishes of language" to emphasise the

reluctance of an appellate court to interfere with

acquittal than to curtail the power of the court to

review the evidence and to come to its own

conclusion.

(4) An appellate court, however, must bear in

mind that in case of acquittal, there is double

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presumption in favour of the accused. Firstly, the

presumption of innocence is available to him

under the fundamental principle of criminal

jurisprudence that every person shall be presumed

to be innocent unless he is proved guilty by a

competent court of law. Secondly, the accused

having secured his acquittal, the presumption of

his innocence is further reinforced, reaffirmed and

strengthened by the trial court.

(5) If two reasonable conclusions are possible on

the basis of the evidence on record, the appellate

court should not disturb the finding of acquittal

recorded by the trial court.”

29.In State of Uttar Pradesh v. Banne @ Baijnath & Ors.,

(2009) 4 SCC 271, this Court gave illustrations of certain

circumstances in which the Court would be justified in interfering

with a judgment of acquittal by the High Court. The circumstances

include:

i) The High Court's decision is based on totally

erroneous view of law by ignoring the settled legal

position;

ii) The High Court's conclusions are contrary to

evidence and documents on record;

iii) The entire approach of the High Court in

dealing with the evidence was patently illegal

leading to grave miscarriage of justice;

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iv) The High Court's judgment is manifestly unjust

and unreasonable based on erroneous law and

facts on the record of the case;

v) This Court must always give proper weight and

consideration to the findings of the High Court;

vi) This Court would be extremely reluctant in

interfering with a case when both the Sessions

Court and the High Court have recorded an order

of acquittal.

30.Thus, the law on the issue can be summarised to the effect that

in exceptional cases where there are compelling circumstances, and

the judgment under appeal is found to be perverse, the appellate court

can interfere with the order of acquittal. The appellate court should

bear in mind the presumption of innocence of the accused and further

that the trial Court’s acquittal bolsters the presumption of his

innocence. Interference with the decision of the trial court in a routine

manner, where the other view is possible should be avoided, unless

there are good reasons for such interference.

31.The trial Court had acquitted two accused persons, namely,

Brahm Swaroop (A.5) and Jagdish Baggar (A.6) mainly on the

grounds that Attar Singh (PW.1) did not tell the names of their

respective fathers though it has so been mentioned in the FIR.

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Secondly, the prosecution could not explain how could the gun of

Gyanendra be recovered from Brahm Swaroop (A.5) if it was taken

away by Jagdish Baggar (A.6) and third ground had been that on

3.6.2000 a gun was recovered on the pointing out of Brahm Swaroop

and he had admitted that he had used the gun in the crime. The said

gun was sent for ballistic expert and the report (Ext.Ka-28) shows

that the barrel of the gun did not have any residue and it had not been

used recently.

32.So far as the first issue is concerned, the names of the father of

two persons accused could not be given by Atar Singh, informant,

(PW.1) in the court, though mentioned in the FIR. The question does

arise as to whether, it is fatal to the case of the prosecution. In Sone

Lal & Ors. v. State of U.P., AIR 1978 SC 1142, this Court while

dealing with the issue held:

“……informant was not aware of some of the

contents of the FIR itself……...If the accused had

any reason to think otherwise it was permissible

for him to cross-examine the witness concerned

and to lay the foundation for his own version.

Lastly, it was suggested by the Sessions Judge that

although the parentage of the accused Dularey

was not mentioned in the FIR yet it was mentioned

in the general diary which shows that the FIR was

prepared subsequently. The High Court has

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clearly pointed out that it was fully explained that

due to inadvertence the parentage of Dularey was

not mentioned in the FIR but after being

ascertained from the informant it was mentioned

in the general diary. In these circumstances,

therefore, the omission, if any, does not appear to

be of any significance. These were the main

reasons given by the Sessions Judge for

disbelieving the FIR and, in our opinion, the High

Court was right in pointing out that the reasons

given by the Sessions Judge were both unsound

and untenable.”

33.In the case of Rotash v. State of Rajasthan, (2006) 12 SCC

64, this Court held:

“……..The question is as to whether a person was

implicated by way of an afterthought or not must

be judged having regard to the entire factual

scenario obtaining in the case. PW.6 received as

many as four injuries….”

Thus, in the fact-situation of the present case, this factor alone could

not discount their involvement in the crime. More so, it is evident

from the record that there was no suggestion to Atar Singh (PW.1)

that the names of the fathers of the two accused persons were

mentioned at the instance of some other persons. He had not been

asked as how the name of their father had been mentioned in the FIR.

Such an inference could not have been drawn by the trial Court

without giving an opportunity of explanation to Atar Singh (PW.1).

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34.On 3.6.2000, a gun was recovered on its being pointed out by

appellant Brahm Swaroop and he stated that he had used the said gun

in the commission of the crime. However, the FSL report suggested

that the gun had not been fired recently and from this the trial court

concluded that the report did not corroborate the usage of the said gun

in the crime and was a major flaw in the prosecution’s case. The High

Court held that this inference of the trial court was perverse. The case

of the prosecution had all along been that Brahm Swarup was armed

with a DBBL gun (which is a different type of gun from the said gun),

and the said gun was not mentioned either in the FIR or in the

testimonies of any of the prosecution witnesses. It was the statement

of Brahm Swaroop that he had used the said gun in the crime. Further,

this statement was inadmissible as Brahm Swaroop had made the

statement to a police officer while he was in custody.

35.As far as the question of the other gun, which Jagdish Baggar

took from Gyanendra and its recovery from Brahm Swaroop is

concerned, both the Trial Court and the High Court disbelieved the

recovery. However, the High Court took the view that no benefit can

be given to the accused persons on the ground that the recovery of the

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said gun was not worth to be believed. Even in the absence of the

proper recovery of the said gun, there was enough evidence to prove

beyond reasonable doubt, the guilt of the accused. The High Court

took the view that in light of the fact that the eyewitness accounts and

the medical evidence were in harmony with each other and clearly

established the guilt of Brahm Swaroop and Jagdish Baggar, the

decision of the Trial Court to acquit them could not be in consonance

with the evidence available on record and thus, perverse. Thus, no

fault can be found with the findings so recorded by the High Court in

reversing their acquittal.

36.We also do not find any force in the submissions made on

behalf of the appellants that there could be no recovery of weapons on

3.6.2000 when the statement of Jagdish Baggar (A.6) was recorded

firstly on 7.6.2000 in the District Jail, for the reason that Shri N.K.

Sharma, Sub-Inspector (PW.7) has stated that Balwant (A.2) and

Brahm Swaroop (A.5) were arrested on 3.6.2000 and they were

having the gun with them. Balwant (A.2) himself brought one Rifle

out of gathered hay and therefore, the statement of N.K. Sharma

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(PW.7) cannot be brushed aside as he has referred to the butt of the

gun which was broken and the chap of which had fallen down.

37.We have, ourselves appreciated the evidence and reached

conclusions similar to the High Court:

(i)If the evidence of the eye-witnesses is trustworthy

and believed by the court, the question of motive

becomes totally irrelevant.

(ii)Merely because the witnesses were close relatives

to the deceased, that cannot be a ground to discard

their evidence.

(iii)Prosecution examined an injured witness. His

presence on the spot cannot be doubted and his

deposition is to be given due weightage.

(iv)In the facts and circumstances of the case there

was no conflict between the direct evidence and

medical evidence. Even if deceased were having

some minor abrasions and contusions for the

reason that they might have reacted to the assault

and tried to save themselves, cannot create a doubt

in the prosecution case about the presence of the

witnesses.

(v)The eye witnesses have been cross-examined

thoroughly, but nothing useful to the accused could

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be elicited from them. The testimony of the eye

witnesses is credible and worthy of confidence.

(vi)The acquittal of Brahm Swaroop (A.5) and Jagdish

Baggar (A.6) by the trial court cannot be held to be

based on cogent reasons. The High court has

rightly reversed their acquittals for offences under

sections 302/34 and 307/34 IPC, but has rightly

upheld their acquittal under Section 25 of the Arms

Act.

38.In view of the above, we do not find any cogent reasons to

interfere with the impugned judgment and order of the High Court.

The appeals lack merit and, are accordingly, dismissed.

……………………………..J.

(P. SATHASIVAM)

……………………………..J.

(Dr. B.S. CHAUHAN)

New Delhi,

October 26, 2010

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