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

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.

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