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PETITIONER: GIRISH YADAV & ORS.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       29/03/1996

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) ANAND, A.S. (J)

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

ACT:

HEADNOTE:

JUDGMENT:                           W I T H      [Criminal Appeal Nos. 501 of 1988 and 63 of 1991]                       J U D G M E N T S.B. Majmudar, J.      These three  criminal appeals have been filed by in all 8 accused  who have  felt aggrieved  by their conviction and sentence recorded  by Additional Sessions Judge, Jabalpur in Sessions Case No.56 of 1983 by his judgment dated 8th August 1986 convicting  them under Section 148 and Section 302 read with Section  149, Indian  Penal Code  (IPC) and  sentencing them respectively  to two  years’ rigorous imprisonment each and imprisonment  for life.  Sentences were  ordered to  run concurrently. They have also felt aggrieved by the dismissal of their  Criminal Appeal No.908 of 1986 by a Division Bench of the  Madhya  Pradesh  High  Court  at  Jabalpur  on  26th February 1988.  Though all  the 8  appellants had  filed one criminal appeal  before the  High Court,  in this Court they have filed  separate appeals  by obtaining  special leave to appeal. Criminal  Appeal No.318  of 1988 is moved by accused nos.6, 7,  8 and  5 respectively.  Criminal Appeal No.501 of 1988 is filed by accused no.2 while Criminal Appeal No.63 of 1991 is filed by accused nos.1, 3 and 4. Facts leading to these appeals      On 4th  September 1982 at about 4.30 p.m., according to the prosecution  story, in a narrow lane of Budhaiya Mohalla near Lal  Chabutra in  the city  of Jabalpur, deceased Gudda alias Narayan  Tiwari was  chased by  the appellants-accused and murdered.  The appellants  Chandu Patel,  Ganesh  Patel, Bhagwandas Yadav  and Girish Yadav are alleged to have armed themselves  with   ’bankas’,  appellant   Jaggu  Yadav  with ’pharsa’ and  appellants Rajjan Yadav and Rikhilal with iron rods. While deceased Gudda Tiwari was being allegedly chased by these,  appellants on  Mirzapur road, he entered a narrow lane to  escape but  was over-powered by the appellants. The appellants are also alleged to have shouted that ’kill Gudda Tiwari and he should not escape today’. In the lane in front

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of the  house of  Jamna Maharaj,  it  is  alleged  that  the appellants  who   were  armed   with  these  deadly  weapons surrounded Gudda  Tiwari and  assaulted  him  severely  with their weapons,  as a  result of which Gudda Tiwari fell down on the  ground. The  incident was  witnessed by Indu Tiwari, P.W.2 - younger brother of the deceased who shouted for help but none  came forward  to save  deceased Gudda Tiwari. This incident was  also witnessed  at  the  same  time  by  Badri Prasad, P.W.1,  Ganesh Patel,  P.W.5 and  Balkrishna, D.W 1. When  Indu   Tiwari,  P.W.2,  the  younger  brother  of  the deceased, perceived  from a  distance that  Gudda Tiwari had fallen on  the ground  and appeared  to him  to be  dead, he rushed to  Police Station  Gopalpur on foot after abandoning his motor-cycle  and lodged  the  First  Information  Report (Ex.P-1) which  was recorded  by S.R. Tandon, P.W.11 who was then posted  as Town  Inspector.  After  departure  of  Indu Tiwari from  the scene  of the incident, the appellant Vijay Patel who  is alleged  to have  arrived on  the scene of the incident, asked other appellants to move away and then threw a bomb  towards the  fallen Gudda Tiwari. It is alleged that the bomb  exploded and  whole of  the back  of the  deceased Gudda Tiwari was injured with burns and glass pieces.      After  recording   the  FIR,   the   police   machinery immediately  moved   and  while   S.R.  Tandon,  P.W.11  was proceeding towards  the place  of the  incident he perceived that  one   of  the  alleged  assailants  Chandu  Patel  was proceeding towards  the Police Station on a bicycle hence he was apprehended  then and there and taken to Police Station. When the  police arrived  on the scene, a huge excited crowd had gathered  there by  the time.  Shri T.C.  Usrey,  P.W.13 prepared a  map of  the spot  (Ex.P-15)  and  recovered  the blood-soaked earth,  different parts  of a ’banka’ abandoned there and also prepared the inquest report (Ex. P-11) on the spot. Subsequently T.C. Usrey, P.W. 13 sent the dead body of Gudda  Tiwari  for  post  mortem  examination.  Post  mortem examination was  conducted  by  Dr.  A.K.  Yadav,  P.W.6  on 5.9.1982 at about 11.15 a.m.      P.W.13,  T.C.   Usrey  concluded   the   investigations arrested  appellant   nos.1,  2,  3  and  4  and  filed  the chargesheet  against   these  four   persons  only,  in  the Committal Court,  According  to  Shri  Usrey  he  filed  the chargesheet only  against appellants  1, 2, 3 and 4  namely, Chandu Patel,  Vijay Patel,  Ganesh Patel and Bhagwandas and not against  appellants no.5  Rikhilal, no.6  Girish  Yadav, no.7 Jaggu  Yadav and  no.8 Rajjan  Yadav,  because  in  the opinion of  his superior  officers, no  case was found to be prima facie  proved against them during investigation. These four appellants  Chandu Patel, Vijay Patel, Ganesh Patel and Bhagwandas were  committed to  stand trial  in the  Court of Sessions. The  learned Trial  Judge, on application from the complainant, exercised  his powers under Section 319 Code of Criminal Procedure (Cr.P.C.) and proceeded against appellant nos.5, 6,  7 and  8 who  appeared to  the Trial  Judge to be prima facie guilty of the commission of the alleged offence.      Appellant challenged  that order  in the  High Court. A learned single  Judge of the High Court allowed the Criminal Revision Application  filed by  them and remanded the matter to the Trial Court with a direction to record the statements of prosecution  witnesses and  then to  decide whether these accused should be proceeded with as per Section 319, Cr.P.C. Thereafter  the   learned  Sessions   Judge   recorded   the statements of  witnesses Badri, P.W.1 and Indu Tiwari, P.W.2 and found  that there  was prima  facie case  against  these appellants and,  therefore, once again exercising his powers under Section 319 Cr.P.C. proceeded against them as accused.

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That is  how along  with original  accused nos.1 to 4, these accused nos.5  to 8  also stood their trial for the offences with which  they were  charged. After recording the evidence offered by the prosecution and also after recording evidence led on behalf of the defence the learned Sessions Judge came to the  conclusion that  all these  accused were  guilty  of having  committed  murder  of  deceased  Gudda  Tiwari  and, therefore, they  were convicted  and sentenced as aforesaid. As noted earlier they failed in their appeal before the High Court in  convincing the  High Court  about their innocence. Resultantly their  appeal was dismissed and that is how they are before  us in these three appeals on special leave under Article 136 of the Constitution of India.      As these  are appeals  pursuant to  the  leave  granted under Article  136 of  the Constitution  of India  and as an attempt is  made in  these appeals by learned senior counsel for the  appellants to challenge concurrent findings of fact recorded by both the courts below against the appellants, it has to  be kept  in view  that this Court in appeals against conviction recorded  by the  Trial Court and as confirmed by the High  Court usually  and as  a matter of course does not interfere  with   concurrent  findings   of  fact  based  on appreciation  of   relevant  prosecution  evidence.  In  the present case both the courts, the Trial Court as well as the High Court,  have placed  implicit reliance  on  eye-witness account of  prosecution witnesses Badri, P.W.1, Indu Tiwari, P.W.2 and  Ganesh  Patel,  P.W.5.  Consequently  unless  the concurrent findings of fact reached by both the courts below are found  to be  unreasonable or  are found  to involve any error of  law or  they are shown to be against the weight of evidence, they  would not be lightly interfered with by this Court in  appeals on  special leave.  In the  case of Chinta Pulla Reddy & Ors. v. State of Andhra Pradesh 1993 Supp. (3) SCC 134  one of  us (Dr.  A.S. Anand,  J.) speaking  for the Division Bench consisting of himself and N.P. Singh, J., has observed in this connection as under :      "Though  generally   speaking   the      Supreme Court does not reappreciate      the  evidence   in  an  appeal,  on      special leave  being granted, under      Article 136  of the constitution of      India   where   two   courts   have      appreciated   the    evidence   and      recorded concurrent  findings,  but      since the  High Court acquitted A-3      and  A-6,   we   have,   with   the      assistance of  learned counsel  for      the parties,  ourselves appreciated      the material  evidence in the case,      with a  view to  determine  whether      the   conviction    and    sentence      recorded    against    the    three      appellants is justified or not." Therefore,  with   a  view   to  ascertaining   whether  the conviction against  the appellants  as rendered by the Trial Court and  as confirmed  by the High Court is well sustained on evidence, we went through the relevant evidence on record with the  assistance  of  learned  senior  counsel  for  the appellants as  well as  learned counsel  for the respondent- State.  Having   given  our  anxious  consideration  to  the submissions  made   by  learned   senior  counsel   for  the appellants  we   have  reached   the  conclusion   that  the conviction rendered  and the  sentence imposed  on all the 8 appellants by  the Trial  Court and as confirmed by the High Court  are   well  sustained  on  record  and  call  for  no

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interference in these appeals.      We may  now proceed  to deal  with the  main  grievance voiced by  the learned  senior counsel  for  the  appellants against the  impugned judgments.  In the  first place it was submitted that the FIR, Ex.P-1 was ante-dated or ante-timed. In this  connection it was urged that though prosecution has alleged that the incident had occurred on 4th September 1982 at about  4.30 p.m.  the evidence  on record showed that the FIR was  not promptly  recorded but saw the light of the day later on  and, therefore,  what is  stated in the FIR should not be  taken as  gospel truth.  So far as this grievance is concerned it  was examined  by both the courts below. So far as the  High Court  is concerned  it has  noted that  such a suggestion was  not even pointed out to witness Indu Tiwari, P.W.2 who  gave the  First Information  Report nor  to  S.R. Tandon, P.W.11,  Town Inspector  who had  recorded  the  FIR after the  incident. Not  only that but the defence had also examined Bhawani  Prasad, Head Constable as P.W.4 who stated that after  the FIR  was  recorded,  it  was  registered  in ’Rojnamacha  Sanha’   at  No.285,   Ex.P-26.  That  document contained summary of the FIR, the names of seven appellants, Chandu Patel,  Ganesh Patel,  Bhagwandas,  Rikhilal,  Girish Yadav,  Jaggu   Yadav  and  Rajjan  Yadav,  except  that  of appellant no.2  Vijay Patel, who is said to have come on the scene and  hurled the bomb after the complainant Indu Tiwari had left  the scene  of offence. The High Court in paragraph 12 of  its judgment  has noted  that witness Bhawani Prasad, Head  Constable,  P.W.4  had  proved  a  copy  of  the  book maintained by  the Police  Station in  which the contents of the FIR  were recorded.  This document  also  contained  the recital that  a copy of the FIR was being sent by the Police Station to  the  concerned  Magistrate.  And  thus  all  the requirements of  Section 154,  Cr.P.C.  were  complied  with strictly. It  is also  pertinent to note that as per witness Indu Tiwari,  P.W.2 he  had left  the  place  of  crime  and reached  the   Police  Station   for  lodging   the   report immediately after  he witnessed  the attack  on his deceased brother Gudda  Tiwari by  appellants 1  and 3  to 8 and that accused no.2  Vijay Patel is said to have come thereafter on the scene of offence and had hurled bomb on the deceased. If the FIR, Ex.P-1 was not promptly recorded and was ante-timed then the  name of  accused no.2 would have been reflected in the FIR. This circumstance lends credence to the prosecution case that  the informant,  P.W.2 Indu  Tiwari  promptly  got recorded the  FIR by going to the Police Station immediately after he  saw the  attack by  the concerned seven accused on his brother.  This circumstance which is well established on record and which is accepted by the High Court, in our view, clearly negates  the defence  version that  the FIR  was not promptly recorded  at the  Police Station.  It is  true,  as learned senior  counsel for  the appellants submitted before us that  Police Sub-Inspector T.C. Usrey, P.W.13 had deposed before the  Trial Court  that on  5th September  1982 he was posted as Sub-Inspector of Police at Police Station Gopalpur and that  after the  report of  the incident was made he had gone to  the spot  of occurrence  along with Town Inspector, S.R. Tandon  and other  police sub-inspector. But it appears that the  mentioning of  the date  5th September 1982 is not accurate as the other evidence which we will presently refer to, shows that the police had gone on spot immediately after lodging of  the FIR  on 4th  September 1982  itself. This is clearly borne  out from  the evidence  of P.W.9, S.R. Kinkar who was  Sub-Inspector attached  to Gopalpur Police Station. He had  stated that  he had  sent the body of deceased Gudda alias Marayan  Prasad Tiwari  to Medical  College  for  post

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mortem on  4.9.87. The prescribed for, Ex.P-12 was filled in by him.  That the  dead body  was lying at the site of crime and on  getting information  he,  accompanied  by  Inspector Tandon  and  Sub-Inspector  Usrey,  had  reached  the  site. Similar is  the evidence  of  P.W.11  S.P.  Tandon  who  had written down  the FIR  when witness P.W 2 came to the Police Station immediately  after the  incident, Shri Tandon P.W.11 stated in  his evidence that on 4.9.82 he was posted as Town Inspector at  Gopalpur Police  Station. The  witness  stated that on  4.9.82 complainant  Indu  Tiwari  had  reported  at police Station.  This report,  Ex.P-1 was written by him. It was signed  by Indu  Tiwari and by him. On the basis of this report he  registered a case under Crime No.420/82 and under Section 302 read with Sections 148 and 149, IPC, This report was scribed  by  him  as  dictated  by  Indu  Tiwari.  After registering the  crime he  went to  the site  of crime  with stamp. On  reaching the site he found the dead body lying in the ’Kulia’.  It was  of Gudda Tiwari. He has further stated that Sub-Inspector  Usrey was also with him, He asked him to prepare Panchnama  after examining the body. After preparing the Panchnama  Usrey informed  him that the Panchnama of the dead body  was complete,  After that  the dead body was sent for post  mortem This  evidence which  has stood the test of cross  examination   clearly  indicates  that  the  incident occurred in  the afternoon  of 4th  September 1982  and  the police was  promptly informed  by  P.W.2  Indu  Tiwari  and, therefore, it  cannot be said that the FIR was ante-timed or was  a   doctored  one,   Learned  senior  counsel  for  the appellants invited  our attention  to the  decision of  this Court in  the case of Meharaj Singh (L/NK.) etc. v. State of U.P. etc. (1994) 5 SCC 188 wherein one of us Dr. A.S. Anand, J. sitting  with Faizan  Uddin,J. had  to consider a similar grievance regarding  the alleged ante-timing of FIR. In this connection the following pertinent observations were made in paragraph 12 of the Report :      "FIR  in   a  criminal   case   and      particularly in  a murder case is a      vital   and   valuable   piece   of      evidence   for   the   purpose   of      appreciating the  evidence  led  at      the trial.  The object of insisting      upon prompt  lodging of  the FIR is      to obtain  the earliest information      regarding the circumstance in which      the crime  was committed, including      the names  of the  actual  culprits      and the  parts played  by them, the      weapons, if  any used,  as also the      names of  the eyewitnesses, if any.      Delay  in  lodging  the  FIR  often      results in  embellishment, which is      a creature  of an  afterthought. On      account of  delay, the FIR not only      gets bereft  of  the  advantage  of      spontaneity, danger  also creeps in      of the  introduction of  a  colored      version or  exaggerated story. With      a view  to determine   whether  the      FlR was  lodged at  the time  it is      alleged to  have been recorded, the      courts generally  look for  certain      external checks.  One of the checks      is the  receipt of  the copy of the      FIR, called  a special  report in a      murder   case,    by   the    local

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    Magistrate.  If   this  report   is      received by  the Magistrate late it      can give  rise to an inference that      the FIR  was not lodged at the time      it  is   alleged   to   have   been      recorded,  unless,  of  course  the      prosecution     can     offer     a      satisfactory  explanation  for  the      delay in  despatching or receipt of      the copy  of the  FIR by  the local      Magistrate.  The   second  external      check  equally   important  is  the      sending of  the  copy  of  the  FIR      along with  the dead  body and  its      reference  inquest   report.   Even      though the one with in the, inquest      report, prepared  under Section 174      Cr.P.C.,  is  aimed  at  serving  a      statutory   function,    to    lend      credence to  the prosecution  case,      the details of the FIR and the gist      of   statements   recorded   during      inquest proceedings  get  reflected      in the report. The absence of those      details is  indicative of  the fact      that  the   prosecution  story  was      still in  an embryo  state and  had      not been  given any  shape and that      the FIR  came to  be recorded later      on  after   due  deliberations  and      consultations and  was  then  ante-      timed to  give it  the colour  of a      promptly lodged FIR." Now it  is no  doubt true that the external checks indicated in the  said decision would lend credence to the prosecution case  that  the  FIR  was  promptly  recorded  but  what  is enumerated in  the said  decision is not  an exhaustive list of external  checks. There may be other external checks also which may  get well  established  on  record  and  may  lend credence to  the prosecution case about the prompt recording of the FIR. In the present case two such external checks are clearly established.  One such  check. consists  of the site map, Ex.P-15  which was prepared on spot after the recording of the FIR. Witness P.W.13 T.C. Usrey stated in his evidence that on visiting the scene of offence after the recording of the FIR  the Panchnama of the dead body was prepared on spot which is  Ex.P-11. and  at the same time he prepared the map of she  spot of occurrence which is Ex.P-15, When we turn to Ex.P-15 we  find that the site map of the crime was prepared in presence  of the  Panchas in  Crime Case  no.420/82 under Sections 148/149,302 IPC and it was prepared while Shri Indu Tiwari was  present, Thus,  in the  presence  of  the  first informant the  site map  was prepared on spot after the case was already  registered as  Crime Case  No.420/82.  We  have already noted  the evidence  of Shri S.R. Tandon, P.W.11 who had stated  that he  had written  down the  report Ex.P-1 as dictated to him by P.W.2 Indu Tiwari and had given the Crime No.420/82. This  clearly shows  that the  FIR  was  recorded almost on  the heels of the incident promptly and thereafter the site  map was  prepared  on  spot.  When  the  site  map mentions the  Crime Case  no.420/82 it lends credence to the prosecution case  that the  FIR was already recorded at that serial number  in  the  Police  Station  before  the  police machinery was  put into  action. The other external check is found from  the ’Kaimisanha’  Ex.P-27A which  is the copy of

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the original  ’sanha’ entry  maintained by the police in the Police Station.  That entry shows that immediately after the FIR was  recorded all  the relevant contents were thereafter also recorded  in this  book. It furnishes a contemporaneous record of  what was  mentioned in  the FIR.  In the light of this clinching  evidence, therefore,  it is not possible for us to  agree with  the  contention  of  the  learned  senior counsel for  the appellants  that the FIR was ante-timed, We entirely agree  with the findings reached by the Trial Court as well  as by  the High  Court that  the FIR  was  promptly recorded at  the Police  Station almost  hot on the heels of the incident  in the  afternoon of 4th September 1982 and it reflects prompt  and timely  account of what had taken place on  spot   on  that  fateful  afternoon  and  who  were  the assailants of  deceased Gudda  Tiwari.  In  this  connection learned senior  counsel for  the appellants  also  submitted that if  the  investigation  on  spot  was  done  after  the recording of  the  FIR  there  was  no  reason  why  in  the requisition for  post mortem  Ex.P-12 names of seven accused were not  mentioned and it was recited that on 4th September 1982 Gudda  alias Marayan Tiwari died due to some old enmity and his  enemies inflicted  injuries  on  his  body.  It  is difficult to  appreciate how  in the requisition application for post mortem as addressed by witness S.R. Kinkar, Station Officer to  the Medical  Officer there  was any occasion for him to  mention the  names of  the accused.  The information which was  to be  sent  to  the  doctor  was  regarding  the homicidal death  of the person concerned whose body was sent for post  mortem. Non-mentioning of the names of the accused in that  request would  not by  itself be  a circumstance to rule out  the prompt  filing of the First Information Report which has  stood well  established on  record of the case as seen earlier.  Consequently even  this aspect cannot advance the case  of the  appellants for  showing that the FIR would not have  been recorded  prior to  the  preparation  of  the inquest Panchnama  and the application for post mortem Ex.P- 12.      It was next contended by learned senior counsel for the appellants relying  on Section  174 Cr.P.C.,  that it is the duty of the police to immediately give information regarding the  commission   of  offence   to  the   nearest  Executive Magistrate empowered to hold inquest and that in the present case such  evidence is  lacking. It is not possible to agree with  this   contention  for  the  simple  reason  that  the ’kaimisanha’ entry  Ex.p-27A  which  was  a  contemporaneous record of  the lodging  of the  FIR itself mentions that the copy of  the FIR was being sent by the Police Station to the concerned Magistrate.  It is  true that  the Dak Book or the Outward Register  which would  have shown the sending of the FIR  to   the  Magistrate  could  not  be  Produced  by  the prosecution as  it was  destroyed after lapse of three years as mentioned  by the Head Constable Bhawan, Prasad, P.W.4 in his evidence, but that would of detract from the veracity of the entry  made in  the ’kaimisanha’ which was maintained at the Police  Station in  the usual  course of  business.  The witness had  stated that  at 1710  hrs of 4th September 1982 the case  under Section  302 was registered on the report of Indu Tiwari. It is also pertinent to note that investigation viz. drawing  inquest report  Panchnamas of  recoveries etc, started  soon after the lodging of the FIR, as seen earlier. Hence the’  absence of  positive proof regarding the receipt of a  copy of  FIR by  the Magistrate  at the earliest would pale into  insignificance on  the facts of the case. In this connection we  may also  refer to  the evidence of D.W.4 V.V Srivastava. This  witness who  was examined on behalf of the

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defence to  show that  the copy  of the  FIR must  not  have reached the  Magistrate promptly could not help the defence. The witness  stated that he had assumed the charge as Reader in the court of Chief Judicial magistrate since October 1982 and he  did not  know that Police Station Gopalpur was under the jurisdiction  of which  Judicial Magistrate  and he  was also not  aware if  any report’s  copy lodged  in  September 1982. at  Police Station  Gopalpur under Crime No.420/82 was received in  CJM Court or not. He could not bring the record of 1982  in court  as it  was  not  traceable.  Under  these circumstances, therefore,  it could  not be assumed that the report would  not have been sent to the concerned Magistrate promptly especially  when the  investigation appears to have been triggered off promptly after the lodgment of the FIR at the Police Station and when inquest Panchnama and drawing up of site map was done on the scene of offence at the earliest after the  lodgment of the FIR in the Police Station as seen earlier. Learned  senior counsel  for the  appellant in this connection invited  our attention  to two  judgments of this Court. In the case of Bir Singh & Ors. v. The State of Uttar Pradesh AIR  1978 SC  59, It was observed in paragraph 11 of the Report  by s.  Murtaza Fazal  Ali,J. speaking  for  this Court that  in that  case the High Court indulged in another conjecture that  the FIR must have been sent to the P.P. and to the Elaqa Magistrate. But this was however a matter which had to  be proved  like any  other fact.  As  we  have  seen earlier there  is ample evidence on record of this case from which inference  can be drawn that copy of the FIR must have been sent  to the  concerned Magistrate  as a matter of fact and not  by way  of only  a presumption  to be  drawn  under Section 114, Indian Evidence Act. Learned senior counsel for the appellants  then invited  our attention to a decision of this Court  in the  case of  Arjun Marik  & Ors. v. State of Bihar JT 1994(2) SC 627 wherein one of us Dr. A.S. Anand.J., sitting with Faizan Uddin, J., had to consider the necessity of forwarding  the report  to the Magistrate as per Sections 157 and  159, Cr.P.C.  Faizan Uddin,  J., speaking  for this Court in  that case  observed that  though the  incident had occurred in  the intervening  night of 19/20th July 1985 the report was  despatched to  the Magistrate on 22nd July 1985. Thus on the facts of that case it was found that the FIR was not promptly  despatched to  the Magistrate and consequently it was  found that  the lodging of the FIR in the morning of 20th  July  1985  remained  doubtful.  As  we  have  already discussed earlier  on the  facts of the present case, in the light of the external checks well established on recorded it could not  be said  that the  recording of  FIR would remain doubtful or  that copy thereafter was not shown to have been promptly  sent  by  the  concerned  Police  Station  to  the Magistrate or  that there  was any  breach of  Section  174, Cr.P.C.      Once it is found that the FIR was promptly lodged after the incident  by witness  P.W.2 Indu Tiwari, and that set in motion the  police machinery  which started investigation on Spot  immediately  thereafter  it  must  be  held  that  the contents of  the FIR would reflect the first hand account of what had  actually happened on Spot and who were responsible for the  offence in  question. In  this  connection  learned counsel for  the respondent rightly invited our attention to a decision  of this  Court in the case of State of Punjab v. Surja Ram  AIR  1995  SC  2413  wherein  M.K.  Mukherjee,J., speaking for  this Court  observed that  the FlR  which  was promptly lodged  and which contained detailed outline of the prosecution case clearly corroborates eye-witness account.      It is  in the light of the prompt lodging of the FIR in

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the present case that the version of the eye witness account supporting the  prosecution case  as revealed in the FIR has to be  appreciated. As  noted earlier  both the  courts have placed implicit reliance on the testimonies of Badri, P.W.1, Indu  Tiwari,   P.W.2  and  Ganesh  Patel,  P.W.5.  We  have carefully gone through their evidence and we find that their evidence has  well stood the test of cross examination. They have  clearly   implicated  all   the  eight  appellants  in connection with  the  crime  of  murder  of  deceased  Gudda Tiwari. They could not be treated as chance witnesses. Their names were  already revealed  in the FIR Ex.P-1. In fact the version found  in the FIR fully corroborates the eye-witness account of  these witnesses.  It is  true that  the name  of accused no. 2 Vijay Patel is not mentioned but that omission also is  well explained by P.W.2 Indu Tiwari who stated that he left  the scene of offence after seeing the attack on his brother by these seven accused and it is also in evidence of other prosecution witnesses that accused no.2 came later and hurled a bomb on the deceased. Consequently no infirmity can be found in the findings reached by both the courts below on the basis  of this  eye-witness account  of these witnesses. Learned senior counsel for the appellants tried to urge that the injuries  deposed to  by these  witnesses as,  allegedly inflicted by  the appellants  on the  deceased do not fit in with the medical evidence. It is difficult to agree. Once we turn to the medical evidence we find that Dr. A.K. Yadav who had performed post mortem on deceased Gudda Tiwari has found 12 incised  wounds on  different parts of his body and there were burning  injury on  the back of the deceased. The whole back had  turned black,  black soot  came out  on rubbing by cotton. The  eye-witness account  clearly  showed  that  the accused who  had armed themselves with sharp cutting weapons like ’banka’  and ’pharsa’ had caused these injuries and the bomb injury  which were  caused by  accused no.2 is found to have left  the burning injuries on the back of the deceased. It is,  therefore, not possible to agree with the contention of learned  senior  counsel  for  the  appellants  that  the medical evidence  does not  support the  prosecution version regarding inflicting of injuries by the accused on deceased.      It was  next contended  that  the  eye-witness  account shows that  after inflicting  injuries on  the deceased  the accused ran  away with  their weapons  while the evidence of P.W.13 T.C.  Usrey shows  that he  found at a distance of 36 ft. from  the place where dead body was lying a ’banka’ with a broken  wooden handle  and that it was not the prosecution case that  one of  the ’bankas’  was thrown  by any  of  the accused. In  our view  this circumstance  in no way detracts from the  reliability of  the eye-witness  account of  these witnesses. PW.1  Badri had  clearly deposed  that while  the witness was  going in Bandhiya Mohalla he saw deceased Gudda Tiwari  running   from  the  main  road  and  seven  persons Bhagwandas, Jaggu,  Girish, Rikhi  Lal, Rajjan,  Chandu  and Ganesh were  chasing  Gudda  Tiwari.  Jaggu  was  holding  a ’pharsa’ in  his hand  and Girish  had a ’bakka’. Ganesh had also a ’bakka’. Rikhi Lal was holding an iron rod and Rajjan was also  holding an iron rod. These people surrounded Gudda Tiwari and Jaggu hit him with ’pharsa’ on his head from back side. The  other persons also attacked him with weapons they were holding.  Gudda Tiwari  having been beaten fell down on the ground on his stomach.      When  Gudda   was  being   assaulted,  Balkrishan   was following the  witness 3-4  steps behind. Indu Tiwari who is the younger brother of Gudda came from main road side. Binda Chaudhry and  Gunnu were  seen. Indu  Tiwari cried for help. When Gudda  Tiwari fell  down Indu  Tiwari left  the  scene.

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After Gudda  fell down  on the  ground Vijay  came there. He shouted, you  go back I am throwing a bomb. Hearing this all the accused  went back and Vijay threw a bomb on Gudda which exploded and  hit Gudda’s  back. This version of the witness was fully  corroborated  by  P.W.2  Indu  Tiwari  and  P.W.5 Ganesh.      Merely because  one ’banka’ was found with loose handle 36 ft.  away from  the place  of occurrence  it could not be said that  the eye-witness  account of  the assault  by  the accused on  the deceased  was in  any way  rendered suspect. Both the  courts, therefore,  were right  in not placing any implicit reliance  on this  circumstance. It  would also  be possible to  infer that  once the  accused ran away with the weapons one  of the ’bankas’ might have been thrown aside by the fleeing  accused. It  is not as if any ’banka’ was found lying on spot near the dead body.      It was next contended by learned senior counsel for the appellants that  it is  not possible to believe that all the three eye-witnesses  would have  an occasion to come on spot simultaneously when  the accused were to mount the attack on the deceased.  The evidences  of these  witnesses show  that each one  of them  had come  of his  own on  the  spot.  The witnesses were  residing in  the same  locality  and  merely because they  were known to complainant P.W.2 Indu Tiwari it could not  be said  that they  would depose  falsely only on that ground.  Nothing was alleged in their cross examination to suggest  that they  were  in  any  way  inimical  to  the accused. They  had no  axe to  grind against  the accused so that they would falsely implicate them in the incident.      It was next contended that the spot map Ex.P-13 recited that accused  Chander, Ganesh  and Vijay had assaulted Gudda Tiwari at the site indicated in the map and this showed that the names  of other  accused are subsequently planted by the prosecution in connection with the incident. It is difficult to appreciate this contention. The recitals in the map would remain purely  heresay and  could not be read as evidence in the case.  In this  connection we  may profitably refer to a decision of this Court wherein one of us Dr. A.S. Anand, J., sitting with  M.K. Mukherjee,  J., while  deciding  Criminal Appeal No.489  of 1985 on 12th March 1996 held that recitals in the  map would  remain heresay evidence in the absence of examination of  the person  who is  alleged  to  have  given information recorded in the map. Same is the position in the present  case.   The  person  who  is  said  to  have  given information recorded  in the  map  Ex.P-13,  namely,  Mukesh Kumar is  not examined in the case. Consequently whatever he might have  dictated on  the spot  when the map was prepared would remain  a mere heresay and that would not detract from the eye-witness  account or  even from  the recitals  in the FIR,  Ex.P-1  which  had  clearly  involved  all  the  seven accused.      It was next submitted by learned senior counsel for the appellants  that   once  the   police  had   not   submitted chargesheet against  accused nos. 5 to 8 the court ought not to have roped them in. It is not possible to agree with this contention also.  There is  enough power with the court in a proper case  to exercise  its jurisdiction under Section 319 Cr.P.C. In  the present  case as  we have  seen earlier, the High Court  had remanded  the matter  for reconsideration in the light  of the evidence that may be recorded by the court and that  is  how  after  recording  the  evidence  of  eye- witnesses process was re-issued against these appellants. As the evidence  recorded by  the court  showed that  there was enough involvement of these accused in the commission of the offence and,  therefore, they  stood on the same pedestal as

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accused 1  to 4  they could not be said to have been wrongly proceeded against as accused under Section 319 Cr.P.C.      It was  next contended  that the courts below had erred in placing  implicit reliance  on the eye witness account of the  witness  Badri  P.W.1  as  he  himself  has  signed  an affidavit Ex.D-1  showing that  he was  not present  on  the scene of  offence at  the relevant  time. This submission is stated to  be rejected  for the  simple reason  that witness P.W.1 when  confronted with  this alleged  affidavit  Ex.D-1 candidly stated  that it  was  got  signed  from  him  under influence of  liquor. It  has to  be kept  in view  that the incident  occurred  as  early  as  on  4th  September  1982. Statement of  the witness  was recorded by the police during investigation while  the so-called  affidavit Ex.D-1 is said to  have  been  sworn  by  the  witness  on  3.12.1983.  It, therefore, appears  that after  the lapse  of about one year and three  months the  accused seem  to have tried to temper with this witness. The witness was honest enough to admit in the court at the stage of trial that the so-called affidavit was got  signed from  him under  influence of  liquor. It is also interesting  to note  that  the  stamp  paper  of  this affidavit was  purchased on  3.12.1983 and  it was allegedly sworn by  the witness  before Notary  on 4.12.1983  but  the notarial seal  and endorsement  bear  the  date  10.11.1983. Thus, the affidavit was sworn about 26 days before the stamp paper was  even purchased!  To say the least such a document cannot be  touched by  a  pair  of  tongs  and  was  rightly discarded by the Trial Court and the High Court.      It was  then contended that accused no. 5 Rikhi Lal and accused no.8  Rajjan are  alleged to  have armed  themselves with iron  rods and  had bet  the deceased  but  no  contuse lacerations were  found on  the dead  body of  the deceased, that P.W.2  had deposed  that these  accused had given blows with iron  rods on  the hands of the deceased but the doctor did not  find any  such injury by hard blunt substance. Even this contention  cannot advance  the case  of the appellants for the  simple reason that P.W.1 and P.W.5 had deposed that these accused  had given  blows on  the deceased but had not indicated that  those blows were given only on the hand. The medical evidence  in this  connection showed  that Dr  Yadav P.W.6 who  performed the post mortem noted that whole of the back of  the deceased  had turned black, black soot came out on rubbing  by cotton.  There were eight superficial incised wounds situated between two shoulder blades in upper part of back measuring  from 1/2  to 1 c.m. in length, 1/2 c.m. wide and 1/2  c.m, deep.  Few pieces  of glass  were removed from these wounds. These wounds were having clean cut margins and were black  in colour.  Thus when  the  whole  back  of  the deceased had  turned black because of the bomb injury it was possible that  the contusion  because of the iron rod injury might not  have been detected. So far as the injuries on the hand are concerned, there were incised wounds on the palm of the deceased  being injury  no.10  and  there  were  incised wounds on  the right  forearm  and  right  upper  arm  being injuries nos.11  and 12  as noted by Dr. Yadav, P.W.6 at the time of  post mortem. In view of these incised wounds it was just possible  that the  contusions on the arm or palm might not have been noticed by the doctor. But that would not mean that the  eye-witness account  only on  that score should be discarded. The  High Court  had, therefore,  rightly brushed aside this objection on the part of the appellants.      It was next contended that the eye-witness account does not deserve  to be  accepted as  these witnesses  had a soft corner for  P.W.2 Indu Tiwari, P.W.1 and P.W.5 were known to the first informant, P.W.2. We fail to appreciate how merely

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because they  were known to P.W.2 they would go out of their way to depose falsely against the accused in connection with what they  saw on  spot. It  was then  submitted that  these witnesses could not have seen the incident of assault on the deceased when  the narrow lane was having a winding gradient and the  Lal Chabutara  from where they have alleged to have seen the  incident was  not near  the place of the incident. Even this  contention cannot  help the  appellants  for  the simple reason  that the  case of  the eye-witnesses  is that they saw  the incident  in the lane when they were very near the deceased  and Lal  Chabutara by  itself was  not located near the place of incident itself and, therefore, it was not found mentioned in the site map.      It was  next contended  that the accused did not reside in the  same area.  They resided  in different  areas of the town and how they could have collected at a time on the spot to behaviour the deceased. It is easy to visualize that when it is  the prosecution case that these accused had collected together having  formed an  unlawful assembly,  it  was  not difficult for  them to assemble at a spot where the deceased was found  moving and  to behaviour  him in  furtherance  of their common  object and  for that  purpose they may as well come from  different parts  of  the  city  where  they  were staying. It  was next  contended that  the residents  of the locality who might have gathered on spot as the evidences of police witnesses  show were not examined. This contention is not well sustained. Even if other witnesses are not examined if the  eye-witness account  of the three witnesses referred to earlier was found acceptable by both the courts below and when that  eye-witness account  has well  stood the  test of cross examination,  non-examination of other witnesses would pale into  insignificance. It is also easy to visualize that witnesses who  are not  concerned with the deceased may like to safely  keep away  from police proceedings or proceedings before the  court and  only those  who feel aggrieved by the assault of the accused on the deceased may be bold enough to come  forward   to  offer   themselves  as  witnesses.  Non- examination of  neighbors as witnesses, therefore, cannot be fatal to  the prosecution  case as it stands fully supported by acceptable eyewitness account as seen earlier.      It  was   next  contended  that  even  though  the  FIR mentioned the name of witness D.W.1 Balkrishna Chaube he had not supported  the  prosecution.  On  the  contrary  he  had supported the defence. A look at the evidence of D.W.1 shows that he  was aged  23 and  was a student at the time when he gave his  deposition. He  himself made it clear in the first line of  his deposition that earlier he was serving with the J.K. Roadways  and that J.K. Roadways belonged to P.W.2 Indu Tiwari. It  is not  in dispute that P.W.2 was brother of the deceased Gudda  Tiwari. Evidence  of this witness shows that by the  time he  deposed on  behalf of the defence he was no longer  in   the  service   of  Indu   Tiwari.  Under  these circumstances even  if he  had not supported the prosecution case and  appeared to  have joined  hands with  the  defence after he  left service  of Indu Tiwari, it could not be said that what  he deposed  as a  defence witness was necessarily false. But  even accepting  his version at the trial for not supporting the prosecution rules out his alleged eye-witness account during  investigation, that  does not mean that what the other eye-witnesses had seen and deposed to would in any way get  whittled down  by the absence of further support to be derived  by the  prosecution from  the version  of  D.W.1 Balkrishna Chaube.      These  were  the  only  contentions  canvassed  by  the learned senior  counsel for the appellants in support of the

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appeals and  as in  our view  these contentions do not shake the core  of the prosecution case against the accused and as the prosecution  case against  the accused  has  stood  well established on  the evidence  on record  as accepted by both the courts  below and which in our view was rightly accepted and has  remained fully  reliable, no  case is  made out  in these appeals for our interference.      In the result these appeals fail and are dismissed. The accused were on bail pending these appeals. Their bail bonds are ordered  to  be  cancelled  and  they  are  directed  to surrender to  custody for  serving out the remaining part of their sentence.