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PETITIONER:

GIRISH YADAV & ORS.

Vs.

RESPONDENT:

STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 29/03/1996

BENCH:

MAJMUDAR S.B. (J)

BENCH:

MAJMUDAR S.B. (J)

ANAND, A.S. (J)

CITATION:

JT 1996 (3) 615 1996 SCALE (3)168

ACT:

HEADNOTE:

JUDGMENT:

W I T H

[Criminal Appeal Nos. 501 of 1988 and 63 of 1991]

J U D G M E N T

S.B. Majmudar, J.

These three criminal appeals have been filed by in all

8 accused who have felt aggrieved by their conviction and

sentence recorded by Additional Sessions Judge, Jabalpur in

Sessions Case No.56 of 1983 by his judgment dated 8th August

1986 convicting them under Section 148 and Section 302 read

with Section 149, Indian Penal Code (IPC) and sentencing

them respectively to two years' rigorous imprisonment each

and imprisonment for life. Sentences were ordered to run

concurrently. They have also felt aggrieved by the dismissal

of their Criminal Appeal No.908 of 1986 by a Division Bench

of the Madhya Pradesh High Court at Jabalpur on 26th

February 1988. Though all the 8 appellants had filed one

criminal appeal before the High Court, in this Court they

have filed separate appeals by obtaining special leave to

appeal. Criminal Appeal No.318 of 1988 is moved by accused

nos.6, 7, 8 and 5 respectively. Criminal Appeal No.501 of

1988 is filed by accused no.2 while Criminal Appeal No.63 of

1991 is filed by accused nos.1, 3 and 4.

Facts leading to these appeals

On 4th September 1982 at about 4.30 p.m., according to

the prosecution story, in a narrow lane of Budhaiya Mohalla

near Lal Chabutra in the city of Jabalpur, deceased Gudda

alias Narayan Tiwari was chased by the appellants-accused

and murdered. The appellants Chandu Patel, Ganesh Patel,

Bhagwandas Yadav and Girish Yadav are alleged to have armed

themselves with 'bankas', appellant Jaggu Yadav with

'pharsa' and appellants Rajjan Yadav and Rikhilal with iron

rods. While deceased Gudda Tiwari was being allegedly chased

by these, appellants on Mirzapur road, he entered a narrow

lane to escape but was over-powered by the appellants. The

appellants are also alleged to have shouted that 'kill Gudda

Tiwari and he should not escape today'. In the lane in front

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of the house of Jamna Maharaj, it is alleged that the

appellants who were armed with these deadly weapons

surrounded Gudda Tiwari and assaulted him severely with

their weapons, as a result of which Gudda Tiwari fell down

on the ground. The incident was witnessed by Indu Tiwari,

P.W.2 - younger brother of the deceased who shouted for help

but none came forward to save deceased Gudda Tiwari. This

incident was also witnessed at the same time by Badri

Prasad, P.W.1, Ganesh Patel, P.W.5 and Balkrishna, D.W 1.

When Indu Tiwari, P.W.2, the younger brother of the

deceased, perceived from a distance that Gudda Tiwari had

fallen on the ground and appeared to him to be dead, he

rushed to Police Station Gopalpur on foot after abandoning

his motor-cycle and lodged the First Information Report

(Ex.P-1) which was recorded by S.R. Tandon, P.W.11 who was

then posted as Town Inspector. After departure of Indu

Tiwari from the scene of the incident, the appellant Vijay

Patel who is alleged to have arrived on the scene of the

incident, asked other appellants to move away and then threw

a bomb towards the fallen Gudda Tiwari. It is alleged that

the bomb exploded and whole of the back of the deceased

Gudda Tiwari was injured with burns and glass pieces.

After recording the FIR, the police machinery

immediately moved and while S.R. Tandon, P.W.11 was

proceeding towards the place of the incident he perceived

that one of the alleged assailants Chandu Patel was

proceeding towards the Police Station on a bicycle hence he

was apprehended then and there and taken to Police Station.

When the police arrived on the scene, a huge excited crowd

had gathered there by the time. Shri T.C. Usrey, P.W.13

prepared a map of the spot (Ex.P-15) and recovered the

blood-soaked earth, different parts of a 'banka' abandoned

there and also prepared the inquest report (Ex. P-11) on the

spot. Subsequently T.C. Usrey, P.W. 13 sent the dead body of

Gudda Tiwari for post mortem examination. Post mortem

examination was conducted by Dr. A.K. Yadav, P.W.6 on

5.9.1982 at about 11.15 a.m.

P.W.13, T.C. Usrey concluded the investigations

arrested appellant nos.1, 2, 3 and 4 and filed the

chargesheet against these four persons only, in the

Committal Court, According to Shri Usrey he filed the

chargesheet only against appellants 1, 2, 3 and 4 namely,

Chandu Patel, Vijay Patel, Ganesh Patel and Bhagwandas and

not against appellants no.5 Rikhilal, no.6 Girish Yadav,

no.7 Jaggu Yadav and no.8 Rajjan Yadav, because in the

opinion of his superior officers, no case was found to be

prima facie proved against them during investigation. These

four appellants Chandu Patel, Vijay Patel, Ganesh Patel and

Bhagwandas were committed to stand trial in the Court of

Sessions. The learned Trial Judge, on application from the

complainant, exercised his powers under Section 319 Code of

Criminal Procedure (Cr.P.C.) and proceeded against appellant

nos.5, 6, 7 and 8 who appeared to the Trial Judge to be

prima facie guilty of the commission of the alleged offence.

Appellant challenged that order in the High Court. A

learned single Judge of the High Court allowed the Criminal

Revision Application filed by them and remanded the matter

to the Trial Court with a direction to record the statements

of prosecution witnesses and then to decide whether these

accused should be proceeded with as per Section 319, Cr.P.C.

Thereafter the learned Sessions Judge recorded the

statements of witnesses Badri, P.W.1 and Indu Tiwari, P.W.2

and found that there was prima facie case against these

appellants and, therefore, once again exercising his powers

under Section 319 Cr.P.C. proceeded against them as accused.

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That is how along with original accused nos.1 to 4, these

accused nos.5 to 8 also stood their trial for the offences

with which they were charged. After recording the evidence

offered by the prosecution and also after recording evidence

led on behalf of the defence the learned Sessions Judge came

to the conclusion that all these accused were guilty of

having committed murder of deceased Gudda Tiwari and,

therefore, they were convicted and sentenced as aforesaid.

As noted earlier they failed in their appeal before the High

Court in convincing the High Court about their innocence.

Resultantly their appeal was dismissed and that is how they

are before us in these three appeals on special leave under

Article 136 of the Constitution of India.

As these are appeals pursuant to the leave granted

under Article 136 of the Constitution of India and as an

attempt is made in these appeals by learned senior counsel

for the appellants to challenge concurrent findings of fact

recorded by both the courts below against the appellants, it

has to be kept in view that this Court in appeals against

conviction recorded by the Trial Court and as confirmed by

the High Court usually and as a matter of course does not

interfere with concurrent findings of fact based on

appreciation of relevant prosecution evidence. In the

present case both the courts, the Trial Court as well as the

High Court, have placed implicit reliance on eye-witness

account of prosecution witnesses Badri, P.W.1, Indu Tiwari,

P.W.2 and Ganesh Patel, P.W.5. Consequently unless the

concurrent findings of fact reached by both the courts below

are found to be unreasonable or are found to involve any

error of law or they are shown to be against the weight of

evidence, they would not be lightly interfered with by this

Court in appeals on special leave. In the case of Chinta

Pulla Reddy & Ors. v. State of Andhra Pradesh 1993 Supp. (3)

SCC 134 one of us (Dr. A.S. Anand, J.) speaking for the

Division Bench consisting of himself and N.P. Singh, J., has

observed in this connection as under :

"Though generally speaking the

Supreme Court does not reappreciate

the evidence in an appeal, on

special leave being granted, under

Article 136 of the constitution of

India where two courts have

appreciated the evidence and

recorded concurrent findings, but

since the High Court acquitted A-3

and A-6, we have, with the

assistance of learned counsel for

the parties, ourselves appreciated

the material evidence in the case,

with a view to determine whether

the conviction and sentence

recorded against the three

appellants is justified or not."

Therefore, with a view to ascertaining whether the

conviction against the appellants as rendered by the Trial

Court and as confirmed by the High Court is well sustained

on evidence, we went through the relevant evidence on record

with the assistance of learned senior counsel for the

appellants as well as learned counsel for the respondent-

State. Having given our anxious consideration to the

submissions made by learned senior counsel for the

appellants we have reached the conclusion that the

conviction rendered and the sentence imposed on all the 8

appellants by the Trial Court and as confirmed by the High

Court are well sustained on record and call for no

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interference in these appeals.

We may now proceed to deal with the main grievance

voiced by the learned senior counsel for the appellants

against the impugned judgments. In the first place it was

submitted that the FIR, Ex.P-1 was ante-dated or ante-timed.

In this connection it was urged that though prosecution has

alleged that the incident had occurred on 4th September 1982

at about 4.30 p.m. the evidence on record showed that the

FIR was not promptly recorded but saw the light of the day

later on and, therefore, what is stated in the FIR should

not be taken as gospel truth. So far as this grievance is

concerned it was examined by both the courts below. So far

as the High Court is concerned it has noted that such a

suggestion was not even pointed out to witness Indu Tiwari,

P.W.2 who gave the First Information Report nor to S.R.

Tandon, P.W.11, Town Inspector who had recorded the FIR

after the incident. Not only that but the defence had also

examined Bhawani Prasad, Head Constable as P.W.4 who stated

that after the FIR was recorded, it was registered in

'Rojnamacha Sanha' at No.285, Ex.P-26. That document

contained summary of the FIR, the names of seven appellants,

Chandu Patel, Ganesh Patel, Bhagwandas, Rikhilal, Girish

Yadav, Jaggu Yadav and Rajjan Yadav, except that of

appellant no.2 Vijay Patel, who is said to have come on the

scene and hurled the bomb after the complainant Indu Tiwari

had left the scene of offence. The High Court in paragraph

12 of its judgment has noted that witness Bhawani Prasad,

Head Constable, P.W.4 had proved a copy of the book

maintained by the Police Station in which the contents of

the FIR were recorded. This document also contained the

recital that a copy of the FIR was being sent by the Police

Station to the concerned Magistrate. And thus all the

requirements of Section 154, Cr.P.C. were complied with

strictly. It is also pertinent to note that as per witness

Indu Tiwari, P.W.2 he had left the place of crime and

reached the Police Station for lodging the report

immediately after he witnessed the attack on his deceased

brother Gudda Tiwari by appellants 1 and 3 to 8 and that

accused no.2 Vijay Patel is said to have come thereafter on

the scene of offence and had hurled bomb on the deceased. If

the FIR, Ex.P-1 was not promptly recorded and was ante-timed

then the name of accused no.2 would have been reflected in

the FIR. This circumstance lends credence to the prosecution

case that the informant, P.W.2 Indu Tiwari promptly got

recorded the FIR by going to the Police Station immediately

after he saw the attack by the concerned seven accused on

his brother. This circumstance which is well established on

record and which is accepted by the High Court, in our view,

clearly negates the defence version that the FIR was not

promptly recorded at the Police Station. It is true, as

learned senior counsel for the appellants submitted before

us that Police Sub-Inspector T.C. Usrey, P.W.13 had deposed

before the Trial Court that on 5th September 1982 he was

posted as Sub-Inspector of Police at Police Station Gopalpur

and that after the report of the incident was made he had

gone to the spot of occurrence along with Town Inspector,

S.R. Tandon and other police sub-inspector. But it appears

that the mentioning of the date 5th September 1982 is not

accurate as the other evidence which we will presently refer

to, shows that the police had gone on spot immediately after

lodging of the FIR on 4th September 1982 itself. This is

clearly borne out from the evidence of P.W.9, S.R. Kinkar

who was Sub-Inspector attached to Gopalpur Police Station.

He had stated that he had sent the body of deceased Gudda

alias Marayan Prasad Tiwari to Medical College for post

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mortem on 4.9.87. The prescribed for, Ex.P-12 was filled in

by him. That the dead body was lying at the site of crime

and on getting information he, accompanied by Inspector

Tandon and Sub-Inspector Usrey, had reached the site.

Similar is the evidence of P.W.11 S.P. Tandon who had

written down the FIR when witness P.W 2 came to the Police

Station immediately after the incident, Shri Tandon P.W.11

stated in his evidence that on 4.9.82 he was posted as Town

Inspector at Gopalpur Police Station. The witness stated

that on 4.9.82 complainant Indu Tiwari had reported at

police Station. This report, Ex.P-1 was written by him. It

was signed by Indu Tiwari and by him. On the basis of this

report he registered a case under Crime No.420/82 and under

Section 302 read with Sections 148 and 149, IPC, This report

was scribed by him as dictated by Indu Tiwari. After

registering the crime he went to the site of crime with

stamp. On reaching the site he found the dead body lying in

the 'Kulia'. It was of Gudda Tiwari. He has further stated

that Sub-Inspector Usrey was also with him, He asked him to

prepare Panchnama after examining the body. After preparing

the Panchnama Usrey informed him that the Panchnama of the

dead body was complete, After that the dead body was sent

for post mortem This evidence which has stood the test of

cross examination clearly indicates that the incident

occurred in the afternoon of 4th September 1982 and the

police was promptly informed by P.W.2 Indu Tiwari and,

therefore, it cannot be said that the FIR was ante-timed or

was a doctored one, Learned senior counsel for the

appellants invited our attention to the decision of this

Court in the case of Meharaj Singh (L/NK.) etc. v. State of

U.P. etc. (1994) 5 SCC 188 wherein one of us Dr. A.S. Anand,

J. sitting with Faizan Uddin,J. had to consider a similar

grievance regarding the alleged ante-timing of FIR. In this

connection the following pertinent observations were made in

paragraph 12 of the Report :

"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. 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.

Delay in lodging the FIR often

results in embellishment, which is

a creature of an afterthought. On

account of delay, the FIR not only

gets bereft of the advantage of

spontaneity, danger also creeps in

of the introduction of a colored

version or exaggerated story. With

a view to determine whether the

FlR was lodged at the time it is

alleged to have been recorded, the

courts generally look for certain

external checks. One of the checks

is the receipt of the copy of the

FIR, called a special report in a

murder case, by the local

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Magistrate. If this report is

received by the Magistrate late it

can give rise to an inference that

the FIR was not lodged at the time

it is alleged to have been

recorded, unless, of course the

prosecution can offer a

satisfactory explanation for the

delay in despatching or receipt of

the copy of the FIR by the local

Magistrate. The second external

check equally important is the

sending of the copy of the FIR

along with the dead body and its

reference inquest report. Even

though the one with in the, inquest

report, prepared under Section 174

Cr.P.C., is aimed at serving a

statutory function, to lend

credence to the prosecution case,

the details of the FIR and the gist

of statements recorded during

inquest proceedings get reflected

in the report. The absence of those

details is indicative of the fact

that the prosecution story was

still in an embryo state and had

not been given any shape and that

the FIR came to be recorded later

on after due deliberations and

consultations and was then ante-

timed to give it the colour of a

promptly lodged FIR."

Now it is no doubt true that the external checks indicated

in the said decision would lend credence to the prosecution

case that the FIR was promptly recorded but what is

enumerated in the said decision is not an exhaustive list

of external checks. There may be other external checks also

which may get well established on record and may lend

credence to the prosecution case about the prompt recording

of the FIR. In the present case two such external checks are

clearly established. One such check. consists of the site

map, Ex.P-15 which was prepared on spot after the recording

of the FIR. Witness P.W.13 T.C. Usrey stated in his evidence

that on visiting the scene of offence after the recording of

the FIR the Panchnama of the dead body was prepared on spot

which is Ex.P-11. and at the same time he prepared the map

of she spot of occurrence which is Ex.P-15, When we turn to

Ex.P-15 we find that the site map of the crime was prepared

in presence of the Panchas in Crime Case no.420/82 under

Sections 148/149,302 IPC and it was prepared while Shri Indu

Tiwari was present, Thus, in the presence of the first

informant the site map was prepared on spot after the case

was already registered as Crime Case No.420/82. We have

already noted the evidence of Shri S.R. Tandon, P.W.11 who

had stated that he had written down the report Ex.P-1 as

dictated to him by P.W.2 Indu Tiwari and had given the Crime

No.420/82. This clearly shows that the FIR was recorded

almost on the heels of the incident promptly and thereafter

the site map was prepared on spot. When the site map

mentions the Crime Case no.420/82 it lends credence to the

prosecution case that the FIR was already recorded at that

serial number in the Police Station before the police

machinery was put into action. The other external check is

found from the 'Kaimisanha' Ex.P-27A which is the copy of

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the original 'sanha' entry maintained by the police in the

Police Station. That entry shows that immediately after the

FIR was recorded all the relevant contents were thereafter

also recorded in this book. It furnishes a contemporaneous

record of what was mentioned in the FIR. In the light of

this clinching evidence, therefore, it is not possible for

us to agree with the contention of the learned senior

counsel for the appellants that the FIR was ante-timed, We

entirely agree with the findings reached by the Trial Court

as well as by the High Court that the FIR was promptly

recorded at the Police Station almost hot on the heels of

the incident in the afternoon of 4th September 1982 and it

reflects prompt and timely account of what had taken place

on spot on that fateful afternoon and who were the

assailants of deceased Gudda Tiwari. In this connection

learned senior counsel for the appellants also submitted

that if the investigation on spot was done after the

recording of the FIR there was no reason why in the

requisition for post mortem Ex.P-12 names of seven accused

were not mentioned and it was recited that on 4th September

1982 Gudda alias Marayan Tiwari died due to some old enmity

and his enemies inflicted injuries on his body. It is

difficult to appreciate how in the requisition application

for post mortem as addressed by witness S.R. Kinkar, Station

Officer to the Medical Officer there was any occasion for

him to mention the names of the accused. The information

which was to be sent to the doctor was regarding the

homicidal death of the person concerned whose body was sent

for post mortem. Non-mentioning of the names of the accused

in that request would not by itself be a circumstance to

rule out the prompt filing of the First Information Report

which has stood well established on record of the case as

seen earlier. Consequently even this aspect cannot advance

the case of the appellants for showing that the FIR would

not have been recorded prior to the preparation of the

inquest Panchnama and the application for post mortem Ex.P-

12.

It was next contended by learned senior counsel for the

appellants relying on Section 174 Cr.P.C., that it is the

duty of the police to immediately give information regarding

the commission of offence to the nearest Executive

Magistrate empowered to hold inquest and that in the present

case such evidence is lacking. It is not possible to agree

with this contention for the simple reason that the

'kaimisanha' entry Ex.p-27A which was a contemporaneous

record of the lodging of the FIR itself mentions that the

copy of the FIR was being sent by the Police Station to the

concerned Magistrate. It is true that the Dak Book or the

Outward Register which would have shown the sending of the

FIR to the Magistrate could not be Produced by the

prosecution as it was destroyed after lapse of three years

as mentioned by the Head Constable Bhawan, Prasad, P.W.4 in

his evidence, but that would of detract from the veracity of

the entry made in the 'kaimisanha' which was maintained at

the Police Station in the usual course of business. The

witness had stated that at 1710 hrs of 4th September 1982

the case under Section 302 was registered on the report of

Indu Tiwari. It is also pertinent to note that investigation

viz. drawing inquest report Panchnamas of recoveries etc,

started soon after the lodging of the FIR, as seen earlier.

Hence the' absence of positive proof regarding the receipt

of a copy of FIR by the Magistrate at the earliest would

pale into insignificance on the facts of the case. In this

connection we may also refer to the evidence of D.W.4 V.V

Srivastava. This witness who was examined on behalf of the

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defence to show that the copy of the FIR must not have

reached the Magistrate promptly could not help the defence.

The witness stated that he had assumed the charge as Reader

in the court of Chief Judicial magistrate since October 1982

and he did not know that Police Station Gopalpur was under

the jurisdiction of which Judicial Magistrate and he was

also not aware if any report's copy lodged in September

1982. at Police Station Gopalpur under Crime No.420/82 was

received in CJM Court or not. He could not bring the record

of 1982 in court as it was not traceable. Under these

circumstances, therefore, it could not be assumed that the

report would not have been sent to the concerned Magistrate

promptly especially when the investigation appears to have

been triggered off promptly after the lodgment of the FIR at

the Police Station and when inquest Panchnama and drawing up

of site map was done on the scene of offence at the earliest

after the lodgment of the FIR in the Police Station as seen

earlier. Learned senior counsel for the appellant in this

connection invited our attention to two judgments of this

Court. In the case of Bir Singh & Ors. v. The State of Uttar

Pradesh AIR 1978 SC 59, It was observed in paragraph 11 of

the Report by s. Murtaza Fazal Ali,J. speaking for this

Court that in that case the High Court indulged in another

conjecture that the FIR must have been sent to the P.P. and

to the Elaqa Magistrate. But this was however a matter which

had to be proved like any other fact. As we have seen

earlier there is ample evidence on record of this case from

which inference can be drawn that copy of the FIR must have

been sent to the concerned Magistrate as a matter of fact

and not by way of only a presumption to be drawn under

Section 114, Indian Evidence Act. Learned senior counsel for

the appellants then invited our attention to a decision of

this Court in the case of Arjun Marik & Ors. v. State of

Bihar JT 1994(2) SC 627 wherein one of us Dr. A.S. Anand.J.,

sitting with Faizan Uddin, J., had to consider the necessity

of forwarding the report to the Magistrate as per Sections

157 and 159, Cr.P.C. Faizan Uddin, J., speaking for this

Court in that case observed that though the incident had

occurred in the intervening night of 19/20th July 1985 the

report was despatched to the Magistrate on 22nd July 1985.

Thus on the facts of that case it was found that the FIR was

not promptly despatched to the Magistrate and consequently

it was found that the lodging of the FIR in the morning of

20th July 1985 remained doubtful. As we have already

discussed earlier on the facts of the present case, in the

light of the external checks well established on recorded it

could not be said that the recording of FIR would remain

doubtful or that copy thereafter was not shown to have been

promptly sent by the concerned Police Station to the

Magistrate or that there was any breach of Section 174,

Cr.P.C.

Once it is found that the FIR was promptly lodged after

the incident by witness P.W.2 Indu Tiwari, and that set in

motion the police machinery which started investigation on

Spot immediately thereafter it must be held that the

contents of the FIR would reflect the first hand account of

what had actually happened on Spot and who were responsible

for the offence in question. In this connection learned

counsel for the respondent rightly invited our attention to

a decision of this Court in the case of State of Punjab v.

Surja Ram AIR 1995 SC 2413 wherein M.K. Mukherjee,J.,

speaking for this Court observed that the FlR which was

promptly lodged and which contained detailed outline of the

prosecution case clearly corroborates eye-witness account.

It is in the light of the prompt lodging of the FIR in

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the present case that the version of the eye witness account

supporting the prosecution case as revealed in the FIR has

to be appreciated. As noted earlier both the courts have

placed implicit reliance on the testimonies of Badri, P.W.1,

Indu Tiwari, P.W.2 and Ganesh Patel, P.W.5. We have

carefully gone through their evidence and we find that their

evidence has well stood the test of cross examination. They

have clearly implicated all the eight appellants in

connection with the crime of murder of deceased Gudda

Tiwari. They could not be treated as chance witnesses. Their

names were already revealed in the FIR Ex.P-1. In fact the

version found in the FIR fully corroborates the eye-witness

account of these witnesses. It is true that the name of

accused no. 2 Vijay Patel is not mentioned but that omission

also is well explained by P.W.2 Indu Tiwari who stated that

he left the scene of offence after seeing the attack on his

brother by these seven accused and it is also in evidence of

other prosecution witnesses that accused no.2 came later and

hurled a bomb on the deceased. Consequently no infirmity can

be found in the findings reached by both the courts below on

the basis of this eye-witness account of these witnesses.

Learned senior counsel for the appellants tried to urge that

the injuries deposed to by these witnesses as, allegedly

inflicted by the appellants on the deceased do not fit in

with the medical evidence. It is difficult to agree. Once we

turn to the medical evidence we find that Dr. A.K. Yadav who

had performed post mortem on deceased Gudda Tiwari has found

12 incised wounds on different parts of his body and there

were burning injury on the back of the deceased. The whole

back had turned black, black soot came out on rubbing by

cotton. The eye-witness account clearly showed that the

accused who had armed themselves with sharp cutting weapons

like 'banka' and 'pharsa' had caused these injuries and the

bomb injury which were caused by accused no.2 is found to

have left the burning injuries on the back of the deceased.

It is, therefore, not possible to agree with the contention

of learned senior counsel for the appellants that the

medical evidence does not support the prosecution version

regarding inflicting of injuries by the accused on deceased.

It was next contended that the eye-witness account

shows that after inflicting injuries on the deceased the

accused ran away with their weapons while the evidence of

P.W.13 T.C. Usrey shows that he found at a distance of 36

ft. from the place where dead body was lying a 'banka' with

a broken wooden handle and that it was not the prosecution

case that one of the 'bankas' was thrown by any of the

accused. In our view this circumstance in no way detracts

from the reliability of the eye-witness account of these

witnesses. PW.1 Badri had clearly deposed that while the

witness was going in Bandhiya Mohalla he saw deceased Gudda

Tiwari running from the main road and seven persons

Bhagwandas, Jaggu, Girish, Rikhi Lal, Rajjan, Chandu and

Ganesh were chasing Gudda Tiwari. Jaggu was holding a

'pharsa' in his hand and Girish had a 'bakka'. Ganesh had

also a 'bakka'. Rikhi Lal was holding an iron rod and Rajjan

was also holding an iron rod. These people surrounded Gudda

Tiwari and Jaggu hit him with 'pharsa' on his head from back

side. The other persons also attacked him with weapons they

were holding. Gudda Tiwari having been beaten fell down on

the ground on his stomach.

When Gudda was being assaulted, Balkrishan was

following the witness 3-4 steps behind. Indu Tiwari who is

the younger brother of Gudda came from main road side. Binda

Chaudhry and Gunnu were seen. Indu Tiwari cried for help.

When Gudda Tiwari fell down Indu Tiwari left the scene.

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After Gudda fell down on the ground Vijay came there. He

shouted, you go back I am throwing a bomb. Hearing this all

the accused went back and Vijay threw a bomb on Gudda which

exploded and hit Gudda's back. This version of the witness

was fully corroborated by P.W.2 Indu Tiwari and P.W.5

Ganesh.

Merely because one 'banka' was found with loose handle

36 ft. away from the place of occurrence it could not be

said that the eye-witness account of the assault by the

accused on the deceased was in any way rendered suspect.

Both the courts, therefore, were right in not placing any

implicit reliance on this circumstance. It would also be

possible to infer that once the accused ran away with the

weapons one of the 'bankas' might have been thrown aside by

the fleeing accused. It is not as if any 'banka' was found

lying on spot near the dead body.

It was next contended by learned senior counsel for the

appellants that it is not possible to believe that all the

three eye-witnesses would have an occasion to come on spot

simultaneously when the accused were to mount the attack on

the deceased. The evidences of these witnesses show that

each one of them had come of his own on the spot. The

witnesses were residing in the same locality and merely

because they were known to complainant P.W.2 Indu Tiwari it

could not be said that they would depose falsely only on

that ground. Nothing was alleged in their cross examination

to suggest that they were in any way inimical to the

accused. They had no axe to grind against the accused so

that they would falsely implicate them in the incident.

It was next contended that the spot map Ex.P-13 recited

that accused Chander, Ganesh and Vijay had assaulted Gudda

Tiwari at the site indicated in the map and this showed that

the names of other accused are subsequently planted by the

prosecution in connection with the incident. It is difficult

to appreciate this contention. The recitals in the map would

remain purely heresay and could not be read as evidence in

the case. In this connection we may profitably refer to a

decision of this Court wherein one of us Dr. A.S. Anand, J.,

sitting with M.K. Mukherjee, J., while deciding Criminal

Appeal No.489 of 1985 on 12th March 1996 held that recitals

in the map would remain heresay evidence in the absence of

examination of the person who is alleged to have given

information recorded in the map. Same is the position in the

present case. The person who is said to have given

information recorded in the map Ex.P-13, namely, Mukesh

Kumar is not examined in the case. Consequently whatever he

might have dictated on the spot when the map was prepared

would remain a mere heresay and that would not detract from

the eye-witness account or even from the recitals in the

FIR, Ex.P-1 which had clearly involved all the seven

accused.

It was next submitted by learned senior counsel for the

appellants that once the police had not submitted

chargesheet against accused nos. 5 to 8 the court ought not

to have roped them in. It is not possible to agree with this

contention also. There is enough power with the court in a

proper case to exercise its jurisdiction under Section 319

Cr.P.C. In the present case as we have seen earlier, the

High Court had remanded the matter for reconsideration in

the light of the evidence that may be recorded by the court

and that is how after recording the evidence of eye-

witnesses process was re-issued against these appellants. As

the evidence recorded by the court showed that there was

enough involvement of these accused in the commission of the

offence and, therefore, they stood on the same pedestal as

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accused 1 to 4 they could not be said to have been wrongly

proceeded against as accused under Section 319 Cr.P.C.

It was next contended that the courts below had erred

in placing implicit reliance on the eye witness account of

the witness Badri P.W.1 as he himself has signed an

affidavit Ex.D-1 showing that he was not present on the

scene of offence at the relevant time. This submission is

stated to be rejected for the simple reason that witness

P.W.1 when confronted with this alleged affidavit Ex.D-1

candidly stated that it was got signed from him under

influence of liquor. It has to be kept in view that the

incident occurred as early as on 4th September 1982.

Statement of the witness was recorded by the police during

investigation while the so-called affidavit Ex.D-1 is said

to have been sworn by the witness on 3.12.1983. It,

therefore, appears that after the lapse of about one year

and three months the accused seem to have tried to temper

with this witness. The witness was honest enough to admit in

the court at the stage of trial that the so-called affidavit

was got signed from him under influence of liquor. It is

also interesting to note that the stamp paper of this

affidavit was purchased on 3.12.1983 and it was allegedly

sworn by the witness before Notary on 4.12.1983 but the

notarial seal and endorsement bear the date 10.11.1983.

Thus, the affidavit was sworn about 26 days before the stamp

paper was even purchased! To say the least such a document

cannot be touched by a pair of tongs and was rightly

discarded by the Trial Court and the High Court.

It was then contended that accused no. 5 Rikhi Lal and

accused no.8 Rajjan are alleged to have armed themselves

with iron rods and had bet the deceased but no contuse

lacerations were found on the dead body of the deceased,

that P.W.2 had deposed that these accused had given blows

with iron rods on the hands of the deceased but the doctor

did not find any such injury by hard blunt substance. Even

this contention cannot advance the case of the appellants

for the simple reason that P.W.1 and P.W.5 had deposed that

these accused had given blows on the deceased but had not

indicated that those blows were given only on the hand. The

medical evidence in this connection showed that Dr Yadav

P.W.6 who performed the post mortem noted that whole of the

back of the deceased had turned black, black soot came out

on rubbing by cotton. There were eight superficial incised

wounds situated between two shoulder blades in upper part of

back measuring from 1/2 to 1 c.m. in length, 1/2 c.m. wide

and 1/2 c.m, deep. Few pieces of glass were removed from

these wounds. These wounds were having clean cut margins and

were black in colour. Thus when the whole back of the

deceased had turned black because of the bomb injury it was

possible that the contusion because of the iron rod injury

might not have been detected. So far as the injuries on the

hand are concerned, there were incised wounds on the palm of

the deceased being injury no.10 and there were incised

wounds on the right forearm and right upper arm being

injuries nos.11 and 12 as noted by Dr. Yadav, P.W.6 at the

time of post mortem. In view of these incised wounds it was

just possible that the contusions on the arm or palm might

not have been noticed by the doctor. But that would not mean

that the eye-witness account only on that score should be

discarded. The High Court had, therefore, rightly brushed

aside this objection on the part of the appellants.

It was next contended that the eye-witness account does

not deserve to be accepted as these witnesses had a soft

corner for P.W.2 Indu Tiwari, P.W.1 and P.W.5 were known to

the first informant, P.W.2. We fail to appreciate how merely

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because they were known to P.W.2 they would go out of their

way to depose falsely against the accused in connection with

what they saw on spot. It was then submitted that these

witnesses could not have seen the incident of assault on the

deceased when the narrow lane was having a winding gradient

and the Lal Chabutara from where they have alleged to have

seen the incident was not near the place of the incident.

Even this contention cannot help the appellants for the

simple reason that the case of the eye-witnesses is that

they saw the incident in the lane when they were very near

the deceased and Lal Chabutara by itself was not located

near the place of incident itself and, therefore, it was not

found mentioned in the site map.

It was next contended that the accused did not reside

in the same area. They resided in different areas of the

town and how they could have collected at a time on the spot

to behaviour the deceased. It is easy to visualize that when

it is the prosecution case that these accused had collected

together having formed an unlawful assembly, it was not

difficult for them to assemble at a spot where the deceased

was found moving and to behaviour him in furtherance of

their common object and for that purpose they may as well

come from different parts of the city where they were

staying. It was next contended that the residents of the

locality who might have gathered on spot as the evidences of

police witnesses show were not examined. This contention is

not well sustained. Even if other witnesses are not examined

if the eye-witness account of the three witnesses referred

to earlier was found acceptable by both the courts below and

when that eye-witness account has well stood the test of

cross examination, non-examination of other witnesses would

pale into insignificance. It is also easy to visualize that

witnesses who are not concerned with the deceased may like

to safely keep away from police proceedings or proceedings

before the court and only those who feel aggrieved by the

assault of the accused on the deceased may be bold enough to

come forward to offer themselves as witnesses. Non-

examination of neighbors as witnesses, therefore, cannot be

fatal to the prosecution case as it stands fully supported

by acceptable eyewitness account as seen earlier.

It was next contended that even though the FIR

mentioned the name of witness D.W.1 Balkrishna Chaube he had

not supported the prosecution. On the contrary he had

supported the defence. A look at the evidence of D.W.1 shows

that he was aged 23 and was a student at the time when he

gave his deposition. He himself made it clear in the first

line of his deposition that earlier he was serving with the

J.K. Roadways and that J.K. Roadways belonged to P.W.2 Indu

Tiwari. It is not in dispute that P.W.2 was brother of the

deceased Gudda Tiwari. Evidence of this witness shows that

by the time he deposed on behalf of the defence he was no

longer in the service of Indu Tiwari. Under these

circumstances even if he had not supported the prosecution

case and appeared to have joined hands with the defence

after he left service of Indu Tiwari, it could not be said

that what he deposed as a defence witness was necessarily

false. But even accepting his version at the trial for not

supporting the prosecution rules out his alleged eye-witness

account during investigation, that does not mean that what

the other eye-witnesses had seen and deposed to would in any

way get whittled down by the absence of further support to

be derived by the prosecution from the version of D.W.1

Balkrishna Chaube.

These were the only contentions canvassed by the

learned senior counsel for the appellants in support of the

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appeals and as in our view these contentions do not shake

the core of the prosecution case against the accused and as

the prosecution case against the accused has stood well

established on the evidence on record as accepted by both

the courts below and which in our view was rightly accepted

and has remained fully reliable, no case is made out in

these appeals for our interference.

In the result these appeals fail and are dismissed. The

accused were on bail pending these appeals. Their bail bonds

are ordered to be cancelled and they are directed to

surrender to custody for serving out the remaining part of

their sentence.