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  4th 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 5th 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 31st 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 5th August, 2003, in Sessions Trial No. 855 of 2001 acquitted  

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

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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 4th  

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  

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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  

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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  

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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  

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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  

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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:  

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“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  

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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  

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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.  

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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  

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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  

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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 31st 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 31st 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.

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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)  

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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  

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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).

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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  

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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  

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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  

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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.  

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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   

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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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