REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1348 OF 2004 DHARAMVEER AND ORS. .. APPELLANT(S) vs. STATE OF U.P. .. RESPONDENT(S) J U D G M E N T
C.K. PRASAD, J.
1. This appeal by way of special leave filed
under Article 136 of the Constitution of India is
against the judgment dated Ist July, 2003, of the
Allahabad High Court in Criminal Appeal No. 3083 of
2001 whereby it had affirmed the judgment and order
of conviction and sentence of the appellants passed
by the Special Judge, Bullandshahar in Sessions
Trial No.154 of 1998.
2. The appellants Dharamveer, Sanjay, Vedi and
Vinod besides other accused persons were put on
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trial for offence under Sections 148, 302/149 and
307/149 of the Indian Penal Code. The Trial Court
convicted all the appellants under Sections 148 and
302/149 of the Indian Penal Code and sentenced them
to undergo rigorous imprisonment for one year and
life respectively. They were further convicted
under Sections 307/149 of the Indian Penal Code and
sentenced to undergo rigorous imprisonment for 10
years. Sentences were directed to run
concurrently. On an appeal the High Court
dismissed the same.
3. Prosecution commenced on the basis of report
given by PW.1 Jaipal Singh on 10/10/1997 to the In-
charge out-post at Khurja junction within Khurja
Police Station. According to the prosecution on
10th October, 1997 at 4 P.M. the informant PW.1,
Jaipal Singh along with his nephew Sheodan
(deceased) brother Jagdish(deceased) besides other
persons including Shiv Charan (PW2) had gone from
their village Ramgarhi to village Auranga to
participate in a Panchayat convened to settle the
dispute between Prakash and his son. According to
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the informant on way back, the two deceased and
Ravi Kiran were 30 to 35 steps ahead of them and
after they had crossed the grove of Ravi Kiran,
appellants herein armed with country-made pistols
came out of millet field of Shreepal and started
firing on the two deceased and Ravi Kiran.
According to the prosecution Jagdish ran towards
Ramgarhi and Sheodan towards Auranga and these
appellants chased Jagdish and killed him whereas
Sanjay, Sheesh Pal and Neetu (since acquitted)
followed Sheodan and caused firearm injury causing
his death in the field of Balwant.
4. On the basis of the aforesaid information
Crime No.21/118/97 under Section 147, 148, 149, 307
and 302 Indian Penal Code was registered at 8.20
P.M. at Khurja Police Station. After usual
investigation Police submitted charge-sheet against
the appellants and ultimately they were committed
to Court of Sessions where they were charged for
commission of offence under Section 148, 302/149
and 307/149 of the Indian Penal Code. Appellants
denied to have committed the offence and claimed to
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be tried. In order to bring home the charge,
prosecution, altogether examined seven witnesses,
out of which PW.1 Jaipal Singh and PW.2 Shivcharan
are the eye-witnesses to the occurrence. PW.3,
Dr.P.P. Singh is a Medical Officer who had examined
Ravi Kiran and found lacerated wound on his person
caused by blunt object. PW.4, Dr.S.K. Sharma is
another Medical Officer, who had conducted post
mortem examination on the dead bodies of Jagdish
and Sheodan and found ante-mortem gun shot injuries
on their person. In his opinion both the deceased
died of shock and haemorrhage as a result of gun
shot injuries. PW.5, Ashok Kumar is a Constable who
took the dead bodies to mortuary for post mortem
examination. PW.6, Madan Mohan is Sub-Inspector of
Police, who after investigation submitted the
charge-sheet against the appellants. PW.7, Ram
Naresh Yadav is Incharge Police outpost, who proved
the check-reports.
5. Besides oral evidence several documents
including first information report and post mortem
reports were also brought on record.
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6. Relying on the evidence of Medical Officer
and the post mortem reports, the trial court came
to the conclusion that the two deceased met
homicidal deaths. Further, relying on the evidence
of PW.1 and PW.2, the trial court held that the
prosecution has been able to prove its case beyond
all reasonable doubt and accordingly convicted and
sentenced the appellants as above. This has been
affirmed by the High Court in appeal.
7. Before we advert to the submissions
advanced, it is expedient to examine the scope of
the power under Article 136 of the Constitution,
while hearing appeal against the judgment of
conviction and sentence. Mr. J.C. Gupta, learned
Senior Counsel appearing on behalf of the
appellants submits that powers under Article 136 of
the Constitution is very wide and nothing prevents
this Court to upset the concurrent findings of
guilt. In support of the submission reliance has
been placed on a decision of this Court in the case
of Ganga Kumar Srivastava vs. State of Bihar (2005)
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6 SCC 211 wherein it has been held as follows:
“10. From the aforesaid series of
decisions of this Court on the exercise of
power of the Supreme Court under Article 136
of the Constitution following principles
emerge :
i) The powers of this Court under Article
136 of the Constitution are very wide but in
criminal appeals this Court does not
interfere with the concurrent findings of
the fact save in exceptional circumstances.
ii) It is open to this Court to interfere
with the findings of fact given by the High
Court if the High Court has acted perversely
or otherwise improperly.
iii) It is open to this Court to invoke the
power under Article 136 only in very
exceptional circumstances as and when a
question of law of general public importance
arises or a decision shocks the conscience
of the Court.
iv) When the evidence adduced by the
prosecution fell short of the test of
reliability and acceptability and as such it
is highly unsafe to act upon it. And
v)The appreciation of evidence and finding
is vitiated by any error of law of
procedure or found contrary to the
principles of natural justice, errors of
record and misreading of the evidence, or
where the conclusions of the High Court
are manifestly perverse and unsupportable
from the evidence on record. (underlining
is ours)”
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8. Mr. Ratnakar Dass, learned Senior Counsel,
appearing on behalf of the State, however, submits
that this Court in exercise of the powers under
Article 136 of the Constitution of India cannot act
as a Court of Appeal and upset the concurrent
findings of fact recorded by the Trial Court and
the Appellate Court. Reliance has been placed on a
decision of this Court in Ramanbhai Naranbhai Patel
and Ors. vs. State of Gujarat (2000) 1 SCC 358 in
which it has been held as follows:
“10.In view of the aforesaid settled
legal position, therefore, we have to see
whether the findings of fact reached by the
High Court agreeing with the appreciation of
evidence by the Sessions Court suffer from
any patent error of law or have resulted in
miscarriage of justice which can call for
our interference in this appeal.”
9. We do not have the slightest hesitation in
accepting the broad submission of Mr. Gupta that
power under Article 136 of the Constitution is very
wide and nothing prevents this Court to reappraise
the evidence and set aside concurrent finding of
fact holding the accused guilty. However,
appreciation of evidence is resorted to, in
exceptional circumstances when it comes to the
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conclusion that the finding of guilt recorded by
the High Court is perverse, meaning thereby the
High Court had recorded the finding without
consideration of relevant material or consideration
of irrelevant material, the consideration or non-
consideration whereof shall have bearing on the
finding recorded. The finding can also be
considered perverse, if a person duly instructed in
law will not come to that finding. This Court may
also interfere with the finding of fact when it
finds violation of established procedure going to
the root of the case. Where the High Court has
analysed the evidence in great detail and found the
evidence reliable there is no scope for
interference by this Court.
10. Bearing in mind the principles aforesaid we
proceed to examine the submissions unfolded.
11. Mr. Gupta submits that there is inordinate
delay in receipt of the Special Report by the
Magistrate. He points out that the occurrence had
taken place on 10th October, 1997 at 4 P.M.; and
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the First Information Report was registered at 8
P.M., the Special Report under Section 157 of the
Code of Criminal Procedure was received on 17th
October, 1997. This inordinate delay in receipt of
the report, according to Mr. Gupta, is sufficient
to reject the case of the prosecution. In support
of the submission reliance has been placed on a
judgment of this Court in the case of L/NK. Meharaj
Singh vs. State of Uttar Pradesh JT 1994 (3) SC
440 and our attention has been drawn to paragraph
12:
“12. 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 eye
witnesses, if any. Delay in lodging
the FIR often results in
embellishment, which is a creature
of an after thought. On account of
delay, the FIR not only gets bereft
of the advantage of spontaneity,
danger also creeps in of the
introduction of a coloured version
or exaggerated story. With a view
to determine whether the FIR was
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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 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. Prosecution has led no
evidence at all in this behalf. The
second external check equally
important is the sending of the copy
of the FIR along with the dead body
and its reference in the inquest
report. Even though 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 embryo 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. In
our opinion, on account of the
infirmities as noticed above, the
FIR has lost its value and
authenticity and it appears to us
that the same has been ante timed
and had not been recorded till the
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inquest proceedings were over at the
spot by PW.8.”
12. Mr. Dass, submits that mere delay in
despatch of the FIR itself is not fatal to the case
of the prosecution. He points out that the First
Information Report was lodged immediately and in
fact the investigation started soon thereafter and
even the dead body was sent for post-mortem
examination within a reasonable time. Hence in his
submission mere delay in despatch of the FIR is of
no consequence. Reliance has been placed on a
decision of this Court in the case of Pala Singh &
Anr. vs. State of Punjab 1972 (2) SCC 640 and our
attention drawn to paragraph 8 of the judgment
which reads as follows:
“8. Shri Kohli strongly criticised
the fact that the occurrence report
contemplated by Section 157 Cr.P.C. was
sent to the Magistrate concerned very
late. Indeed, this challenge, like the
argument of interpolation and belated
despatch of the inquest report, was
developed for the purpose of showing that
the investigation was not just, fair and
forthright and, therefore, the prosecution
case must be looked at with great
suspicion. This argument is also
unacceptable. No doubt, the report
reached the magistrate at about 6 p.m.
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Section 157 Cr.P.C. requires such report
to be sent forthwith by the police officer
concerned to a magistrate empowered to
take cognizance of such offence. This is
really designed to keep the magistrate
informed of the investigation of such
cognizable offence so as to be able to
control the investigation and if necessary
to give appropriate direction under
Section 159. But when we find in this case
that the FIR was actually recorded without
delay and the investigation started on the
basis of that FIR and there is no other
infirmity brought to our notice, then,
however improper or objectionable the
delayed receipt of the report by the
magistrate concerned it cannot by itself
justify the conclusion that the
investigation was tainted and the
prosecution insupportable. It is not the
appellant’s case that they have been
prejudiced by this delay.”
13. Having given our thoughtful consideration to
the submissions advanced, we do not find any
substance in the submission of Mr.Gupta.
Information in regard to the incident was given
immediately after the occurrence and the First
Information Report was lodged on the same day at
8.20 p.m. The occurrence had taken place at about
4.00 p.m. on 10/10/1997 and therefore there does not
seem any delay in lodging the First Information
Report. Not only this, after the First Information
Report was lodged, investigation proceeded, the
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statement of the witnesses recorded, the inquest
report prepared and the dead bodies sent for post-
mortem examination without delay. It is also on
record that the Special Report was sent by post. In
the background of the aforesaid facts, mere delay in
receipt of the Special Report, in no way causes
doubt to the case of the prosecution. Furthermore,
none of the witnesses including the investigating
officer of the case have been cross-examined on this
point. Therefore, we are not inclined to reject the
case of the prosecution merely on the ground that
there was delay in despatch of the First Information
Report.
14. Mr. Gupta, then submits that the entire
prosecution case is dependent upon the evidence of
PW.1 Jaipal Singh and PW.2 Shiv Charan and they
being inimical to the appellants, their evidence
deserve to be rejected and once it is done so,
there is no evidence on record to connect the
appellants with the crime. He points out there is
overwhelming evidence on record to show old enmity
between the prosecution witnesses and the
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appellants. Both the witnesses are not the
residents of the village, where the occurrence had
taken place and further the witnesses having no
land near the place of occurrence their presence
at the scene of occurrence is highly doubtful. Mr.
Gupta emphasises that in order to show their
presence at the place of occurrence, the story of
Panchayat at village Auranga was cooked up. Non-
examination of Ravi Kiran, as witness has also
been highlighted. It has been contended that in
order to conceal the truth this witness, who is
the most competent witness, has been withheld by
the prosecution.
15. All these submissions are in the realm of
appreciation of evidence and the High Court has
meticulously examined it. The evidence of an eye
witness can not be rejected only on the ground
that enmity exists between the parties. The High
Court in this connection has observed as follows :
“In view of extreme strained relations
between the two sides, no independent
witness could dare to depose in favour of
the prosecution risking his own life. Two
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eyewitnesses P.W.1 Jaipal Singh and P.W.2
Shiv Charan cannot be disbelieved merely
because of being related with the
deceased, especially in the circumstances
narrated above.”
16. True it is that Ravi Kiran could have been an
important witness to unfold the true story but his
non-examination, in our opinion, itself is not
sufficient to discard the case of the prosecution.
It has come in evidence of PW.1 Jaipal that later
on prosecution suspected that he was accomplice in
the crime. Hence his non-examination has been
explained. Not only this, the evidence of the two
eye-witnesses, with minor contradictions here and
there has withstood the test of cross-examination
and therefore the case of the prosecution is not
fit to be thrown out on these grounds.
17. Mr. Gupta submits that the two eye-witnesses
namely PW.1 Jaipal Singh and PW.2 Shiv Charan were
highly inimical to the accused persons and
according to the prosecution itself both had come
at a hand-shaking distance, they would not have
been left unharmed and hence their claim to be the
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eye-witnesses to the incident is highly doubtful.
18. We do not find any substance in this
submission of Mr. Gupta. Why the appellants did not
cause any injury to these witnesses can not be
explained by the prosecution. It will require
entering into their mind. Human behaviour are
sometimes strange. Merely the fact that these
witnesses did not suffer any injury, will not make
their evidence untrustworthy. This aspect of the
matter has been considered by the High Court in
right perspective and it has held as follows:-
“The statements of the witnesses show that
Sheodan, Ravi Kiran and Jagdish were 30 or
35 steps ahead of other witnesses. On
coming out of the crop the accused persons
targeted Jagdish and Sheodan. Therefore,
if injuries were not caused to other
persons of the family of the victims i.e.
two eyewitnesses, it does not mean that
they were not present on the spot. The
entire group could not be targeted by the
accused as it was likely to result in the
failure of their mission.”
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19. In the result, we do not find any merit in
the appeal and it is dismissed accordingly.
20. The Appellants are on bail. Their bail bonds
stand cancelled and they are directed to surrender
and to serve out remainder of the sentence.
………………J.
(HARJIT SINGH BEDI)
……………..J.
(C.K. PRASAD)
New Delhi,
March 09, 2010.