& Ors. Vs. State of U.P.  INSC 176 (9 March 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1348
OF 2004 DHARAMVEER AND ORS. .. APPELLANT(S) vs.
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.
The appellants Dharamveer, Sanjay, Vedi and Vinod besides other
accused persons were put on 2 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.
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 3 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.
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.
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 4 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.
Besides oral evidence several documents including first
information report and post mortem reports were also brought on record.
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.
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) 6 6 SCC 211 wherein it has
been held as follows:
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
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.
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.
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)"
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:
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
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 8 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.
Bearing in mind the principles aforesaid we proceed to examine the
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 9 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:
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 10 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 11
inquest proceedings were over at the spot by PW.8."
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:
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.
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
Having given our thoughtful consideration to the submissions
advanced, we do not find any substance in the submission of Mr. Gupta.
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 13
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.
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 14 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.
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 :
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 15 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."
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.
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.
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 16
eye-witnesses to the incident is highly doubtful.
We do not find any substance in this submission of Mr. Gupta. Why
the appellants did not cause any injury to these witnesses cannot 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.
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."
In the result, we do not find any merit in the appeal and it is
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)
March 09, 2010.