REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 342 OF 2007

Sri Sambhu Das @ Bijoy Das & Anr.                         ………….. Appellants

Versus

State of Assam                                                           …………..Respondent

J U D G M E N T

H.L. Dattu, J.

1) This appeal is directed against the judgment and order passed  

by the Gauhati High Court in Criminal Appeal No. 63 of 2005, dated  

26.04.2006, whereby and where under, the High Court has affirmed  

the order passed by the Sessions Judge, Hailakandi, in Sessions Case  

No.2 of 2002.  The appellants are convicted under Section 302/34 IPC  

and  sentenced  to  imprisonment  for  life  and  to  pay  a  fine  of  Rs.  

10,000/- each, and in default, to undergo further imprisonment for six  

months each.

2)   The case of the prosecution is that, on 07.06.1997 at about  

5.00  P.M.  the  deceased  Fanilal  Das  was  returning  home  on  a  

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rickshaw driven by Manilal Das (PW2).  The deceased stopped the  

rickshaw near Shiva temple and after offering his prayer, he came  

back to the rickshaw and at that point of time, the appellants and  

others assaulted the deceased and, thereafter, forcibly took him to  

the  house  of  Kunja  Mohan  where  he  was  assaulted  by  all  the  

accused persons.  It is their further case, that,  one Upendra Das  

informed the wife of the deceased about the assault on her husband  

by the appellants and on hearing the same, she came to the place of  

occurrence and saw the accused persons assaulting the deceased,  

and  on  being  informed  by  PW-3,  police  came  to  the  place  of  

incident and took the injured to the hospital where he was declared  

dead.   After  completing  the  investigation,  the  accused  persons  

were charge-sheeted.  Initially, four accused persons were tried by  

the Sessions Judge, Hailkandi for commission of the offence under  

Section 302/34 IPC.  During the trial, four other persons were also  

arrayed as accused and tried along with the appellants.   All  the  

accused persons pleaded not guilty.  During the course of the trial,  

the prosecution examined eight witnesses.  After completion of the  

trial,  the  appellants  were  examined  under  Section  313  Cr.P.C.,  

wherein the appellants completely denied their involvement in the  

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alleged offence.  The learned trial Judge convicted the appellants  

and  two  others  for  the  offence  under  Section  302/34  IPC  and  

sentenced as stated earlier.   This order  of the Sessions Court  is  

confirmed by the  Gauhati  High Court  by  rejecting  the  criminal  

appeals filed by the accused persons.  

3)       This  appeal  is  filed  only  by  Sambhu  Das  @ Bijoy  Das  

(Accused No. 4) and Bibhu Das @ Sekhar Das (Accused No. 5).

4)      While assailing the judgment and order of the High Court, it is  

contended  by  Shri  M.N.  Rao,  learned  senior  counsel,  that  

admittedly, the Inquest Report was recorded by the Investigating  

Officer  at  9.30 PM and the FIR was lodged by the wife of the  

deceased at 11.30 PM on 07.06.1997.  Therefore, it is contended  

that the First  Information Report loses all authenticity if written  

after Inquest Report.   In aid of his submission, reliance is placed  

on the observation made by this court in the case of Balaka Singh  

& Ors. Vs. The State of Punjab, [1975(4) SCC 511] and Ramesh  

Baburao Devaskar and Ors. Vs. State of Maharashtra, [2007(13)  

SCC 501].  It is further contended that the High Court has failed to  

address itself to certain crucial aspects of evidence and proceeded  

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to dispose of the appeal on general observations and more so, in a  

very casual and cavalier  manner  which is  impermissible  in law.  

Reliance is  placed on the observation made by this court  in the  

case of Badri  vs. State of Rajasthan, [1995 Supp. (3) SCC 521],  

Ishvarbhai Fuljibhai Patni vs. State of Gujarat, [1995 (1) SCC 178]  

and Lal Singh vs. State of Madhya Pradesh, [2003 (9) SCC 464].  

It  is  further  contended  that  the  High  Court  has  erred  in  not  

appreciating the fact that the accused has put forward a reasonable  

defence  throughout  the  trial  and  as  well  as  in  their  statement  

recorded under Section 313 of Criminal Procedure Code.  While  

elaborating this contention,  it is stated that prior to the occurrence,  

the  complainant’s  husband  and  her  husband’s  younger  brother  

Chunnulal Das had got involved in the case regarding the murder  

of  their  brother  Arun  Das  and  for  that  reason  they  have  been  

implicated  in  the  present  case  out  of  that  grudge.   It  is  further  

submitted  that  in  the  instant  case,  the  High  Court  has  made  

departure from the rule, that when an accused person puts forward  

a reasonable defence which is likely to be true and in addition,  

when the same is supported by some prosecution witnesses,  the  

burden  of  proof  on  the  other  side  becomes  onerous,  because  a  

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reasonable and probable story likely to be true when pitted against  

a  weak and vacillating  prosecution  case  and by that  reasonable  

doubt, the accused must get the benefit.  It is further submitted that  

this  court,  in  the  case  of  Hate  Singh Bhagat  Singh vs.  State  of  

Madhya Bharat, [AIR 1953 SC 468] has held that when an accused  

person puts forward a reasonable defence which is likely to be true  

and in addition is supported by two prosecution witnesses, then the  

burden  on  the  other  side  becomes  all  the  heavier  because   a  

reasonable and probable story likely to be true when pitted against  

a weak and vacillating case is bound to raise reasonable doubts of  

which the accused must get the benefit.   It is also contended that  

one important material witness, namely, Upen Das, who is said to  

have informed PW1 that the accused person killed her husband has  

not been examined by the prosecution, nor has any explanation for  

not examining him as a witness been given by the prosecution and,  

therefore, non-examination of Upen Das is fatal to the prosecution  

story.  

5)          The learned counsel  for  the  State  while  justifying the  

impugned judgment and order, would submit that the concurrent  

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findings on facts by the Sessions Court and the High Court need  

not be interfered by this Court.  

6)            The question that requires to be noticed and answered is,  

whether this Court in exercise of the powers under Article 136 of  

the Constitution of India, can upset the concurrent findings of fact  

recorded by the Trial Court and the Appellate Court.  Shri M.N.  

Rao,  learned senior counsel  for the appellants,  submits  that  this  

court  can  take  a  different  view  and  also  come  to  different  

conclusion than the one arrived at by the Trial and the Appellate  

Court, if this Court prima facie comes to the conclusion that the  

findings of fact reached by the Trial Court and confirmed by the  

High Court suffers from any patent error of law or has resulted in  

miscarriage of justice. In our view, the law on this issue is now  

well settled by several pronouncements made by this court.  

7)        In Dhananjay Shanker Shetty vs. State of Maharashtra, [(2002)  

6 SCC 596], it is stated that :  

“Ordinarily, after appraisal of evidence by the two  courts  below  and  recording  concurrent  verdict  of  conviction, this Court does not interfere with the same,  but where it is found that compelling grounds exist and  there  would  be  failure  of  justice,  a  duty  is  enjoined  upon  it  to  reappraise  the  evidence  itself  for  doing  complete justice in the case.”  

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8)        In Ravinder Parkash & Anr. vs. State of Haryana, [(2002) 8  

SCC 426], it is observed :  

“…..It is true normally this Court would not substitute  its  subjective  opinion  of  the  evidence  with  that  of  concurrent  findings of the two courts below. However,  having considered the findings of the courts below, we  have  noticed  that  the  trial  court,  though  by  a  lengthy  judgment has found the appellants guilty, we have found  that finding is not supported by the material on record.  Therefore, we have considered the prosecution evidence  independently  and  have  disagreed  with  the  same  for  reasons mentioned in this judgment. We have not done  this by merely substituting our subjective satisfaction but  we have done the same for reasons based on material on  record…….”  (Para 14)

9)       In Bharat vs. State of Madhya Pradesh, [(2003) 3 SCC 106], it  

is observed that :  

“….The prosecution has to prove its case against the  appellant  beyond  reasonable  doubt.  The  chain  of  circumstances, in our opinion, is not complete so as to  sustain the conviction of the appellant. There is thus no  substance in the contention urged on behalf of the State  that  this  Court  may  not  interfere  in  the  concurrent  findings of fact of the courts below.”

                                                                      (Para 12 )

10)       In Mousam Singha Roy & Ors. vs. State of West Bengal,  

[(2003) 12 SCC 377], it is stated :

“We are also aware that this Court does not disturb  the concurrent findings of the courts below if the same  are based on legal evidence merely because another view  is possible. Thus, keeping in mind the caution expressed  by Baron Alderson (supra) as also the need to respect the  concurrent  findings  of  the  two  courts  below,  we  have  assessed the evidence in this case very carefully, but in  

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spite  of  the  same  we  are  unable  to  concur  with  the  findings  of  the  courts  below.  In  our  opinion,  both  the  courts  below have departed  from the  rule  of  prudence  while appreciating the evidence led by the prosecution.”

                                                                                               (Para 29 )

11)  In Ganga Kumar Srivastava vs. State of Bihar, [(2005) 6 SCC  

211], it is observed :  

“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  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.

(v) Where 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.

                                                                                                 (Para 10)

12) This  Court,  in exercise  of  its  powers  under  Article  136 of  the  

Constitution, will not re-open the findings of the High Court when  

there are concurrent findings of facts and there is no question of  

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law involved and the conclusion is not perverse.  Article 136 of the  

Constitution, does not confer a right of appeal on a party.  It only  

confers  a  discretionary  power  on  the  Supreme  Court  to  be  

exercised  sparingly  to  interfere  in  suitable  cases  where  grave  

miscarriage  of  justice  has  resulted  from  illegality  or  

misapprehension or mistake in reading evidence or from ignoring,  

excluding or illegally admitting material evidence.  [See Basudev  

Hazra v. Matiar Rahaman Mandal – AIR 1971 SC 722].     

13)Keeping  in  view the  aforesaid  settled  legal  principles,  we  now  

proceed  to  examine  the  main  contention  canvassed  by  learned  

senior counsel Shri M.N. Rao, appearing for the appellant.  It is  

submitted that in the instant case, the investigating officer (PW8),  

has recorded/prepared the inquest report on 7.6.1997 at 9.30 PM  

and  at  the  instance  of  PW1,  the  first  information  report  was  

recorded by PW8 on 7.6.1997 at 11.30 PM under Sections 147,  

148, 149, 341, 342, 325, 326 and 302 of IPC against four persons  

and, therefore, it is contended that since FIR is lodged after inquest  

was held, the FIR is not reliable.  Alternatively, it is contended that  

in  a  case  under  Section  302  read  with  Section  32  IPC,  First  

Information Report  cannot  be lodged after  the  inquest  has been  

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held.  Reliance, as we have already stated, is on the decision of this  

Court  in  Balkasingh’s  case  (supra)  and  in  Ramesh  Babu  Rao  

Devaskar’s case (supra).  

14)   In Balaka Singh’s case, it was observed by this Court, that the  

names of four accused out of nine were missing in the body of the  

Inquest Report and this omission was not explained and, therefore,  

it lead to the probability that FIR must have been prepared after the  

preparation of Inquest Report.  That was a case where there were  

nine  accused  persons  and  the  names  of  five  accused  were  

mentioned  in  the  Inquest  Report.   The  A.S.I.  had  no  valid  

explanation for the same.  It was also found by the Court that FIR  

was  registered  subsequently.   Therefore,  the  observation  of  this  

Court is to be understood in that background.  We do not think that  

this  decision  lays  down  that  under  all  circumstances,  the  First  

Information Report loses its authenticity, if it is filed after Inquest  

Report.    

15)  In Ramesh Babu Rao Devaskar’s case, First Information Report  

was lodged after inquest was held and the same was based on the  

version of alleged eye witness.  This court was of the view that  

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there was no explanation why FIR was not lodged by eye witness  

and also noticed that the name of only one accused was mentioned  

in the FIR. However, in the Inquest Report statements of Panch  

witnesses  recorded  to  the  effect  that  some  unknown  assailants  

killed the deceased.  Apart from the above omission, copy of the  

FIR was sent to the concerned Magistrate after four days, sharing  

of common object by other accused persons with the accused who  

was named in the FIR was not made out and one of the PWs turned  

hostile and testimony of other two PWs was not reliable.  In view  

of  these  discrepancies,  this  Court,  on  facts,  held  it  would  be  

hazardous to record conviction of the accused.  

16)    In the present case, there is the documentary evidence in the  

form of G.D. entry No.164 recorded by PW-8 in the General Diary  

on 07.06.1997 at about 6.30 P.M.   That entry was made on the  

telephonic  message/information  supplied  by  Asabuddin  

Mazumdar, PW-3.  It is clearly stated therein by PW-3 that a man  

named Fanilal Das was lying in a serious condition on the side of  

verandah of Chandan Das.  It was on receipt of this information  

that PW-8 went to the place of occurrence of the incident, drew up  

the  inquest  report,  made  seizure  of  the  material  objects  and  

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recorded  the  statement  of  those  present,  including  PW-1.  

Admittedly, the inquest report is prepared by PW-8 at 9.30 P.M.  

and the formal FIR is lodged by PW-1 at 11.30 P.M.  The learned  

senior  counsel  Shri  M.N.  Rao,  by  placing  his  fingers  on  the  

admission made by PW-8 in his evidence would contend, that, FIR  

loses  its  authenticity  if  it  is  lodged  after  the  inquest  report  is  

recorded.   This  submission  of  the  learned  counsel  is  a  general  

proposition and may not be true in all cases and all circumstances.  

This general proposition cannot be universally applied, by holding  

that if the FIR is lodged for whatever reason after recording the  

inquest  report  the  same  would  be  fatal  to  all  the  proceedings  

arising out of the Indian Penal Code.

17)The  Inquest  Report  is  prepared  under  Section  174 Cr.P.C.  The  

object of the inquest proceedings is to ascertain whether a person  

has died under unnatural circumstances or an unnatural death and  

if  so,  what  the  cause  of  death  is?   The  question  regarding  the  

details as to how the deceased was assaulted or who assaulted him  

or under what circumstances he was assaulted,  is  foreign to the  

ambit and scope of the proceedings under Section 174 Cr.P.C.  The  

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names of the assailants and the manner of assault are not required  

to be mentioned in the inquest report.  The purpose of preparing  

the inquest report is for making a note in regard to identification  

marks  of  the  accused.   The  inquest  report  is  not  a  substantive  

evidence.  Mention of the name of the accused and eye witness in  

the inquest report is not necessary.  Due to non-mentioning of the  

name of the accused in the inquest report, it cannot be inferred that  

FIR  was  not  in  existence  at  the  time  of  inquest  proceedings.  

Inquest  report  and  post  mortem  report  cannot  be  termed  to  be  

substantive  evidence  and any  discrepancy  occurring  therein  can  

neither be termed to be fatal nor even a suspicious circumstance  

which would warrant  a  benefit  to  the  accused and the resultant  

dismissal  of  the  prosecution  case.   The  contents  of  the  inquest  

report cannot be termed as evidence, but they can be looked into to  

test  the veracity of the witnesses.   When an officer  incharge of  

Police Station receives information that a person had committed  

suicide or has been killed or died under suspicious circumstances,  

he shall inform the matter to the nearest Magistrate to hold Inquest.  

A  criminal  case  is  registered  on  the  basis  of  information  and  

investigation is commenced under Section 157 of Cr.P.C. and the  

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information  is  recorded  under  Section  154  of  Cr.P.C.  and,  

thereafter,  the inquest  is  held under  Section 174 Cr.P.C.    This  

Court, in the case of Podda Narayana Vs. State of Andhra Pradesh  

[AIR 1975  SC 1252],  has  indicated  that  the  proceedings  under  

Section  174  Cr.  P.C.  have  limited  scope.   The  object  of  the  

proceedings is merely to ascertain whether a person has died in  

suspicious circumstances or an unnatural death and if so, what is  

the apparent cause of the death.  The question regarding details as  

to how the deceased was assaulted or who assaulted him or under  

what circumstances, he was assaulted is foreign to the ambit and  

scope proceeding under Section 174.  Neither in practice nor in law  

was  it  necessary  for  the  Police  to  mention  these  details  in  the  

Inquest Report.  In George Vs. State of Kerala AIR 1998 SC 1376,  

it  has  been  held  that  the  Investigating  Office  is  not  obliged  to  

investigate, at the stage of Inquest, or to ascertain as to who were  

the  assailants.   In  Suresh Rai  Vs.  State  of  Bihar  AIR 2000 SC  

2207, it  has been held that under Section 174 read with Section  

178 of Cr. P.C.,  Inquest Report is prepared by the Investigating  

Officer  to  find  out  prima  facie  the  nature  of  injuries  and  the  

possible  weapon used in  causing  those  injuries  as  also  possible  

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cause of death.     

18)This  Court  has  consistently  held  that  Inquest  Report  cannot  be  

treated  as  substantive  evidence  but  may  be  utilized  for  

contradicting the witnesses of the Inquest.  Section 175 Cr. P.C.  

provides that a Police Officer proceedings under Section 174 may,  

by  an  order  in  writing,  summon  two  or  more  persons  for  the  

purpose of the said investigation.  The provisions of Sections 174  

and  175  afford  a  complete  Code  in  itself  for  the  purpose  of  

inquiries in cases of accidental or suspicious deaths.       

19)       Section  2  (a)  of  the  Cr.P.C.  defines  “Investigation”  as  

including all the proceedings under this code for the collection of  

evidence conducted by the police officer.  

20)       Section 157 of the Code says that if, from the information  

received or otherwise an officer incharge of a police station has  

reason  to  suspect  the  commission  of  an  offence  which  he  is  

empowered to investigate, he shall forthwith send a report of the  

same to the Magistrate concerned and proceed in person to the spot  

to investigate the facts and circumstances of the case, if he does  

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not send a report  to the Magistrate,  that does not mean that his  

proceedings to the spot, is not for investigation.  In order to bring  

such  proceedings  within  the  ambit  of  investigation,  it  is  not  

necessary that a formal registration of the case should have been  

made before proceeding to the spot.  It is enough that he has some  

information to afford him reason even to suspect the commission  

of a cognizable offence.  Any step taken by him pursuant to such  

information, towards detention etc., of the said offence, would be  

part of investigation under the Code.  

21)In Maha Singh vs. State (Delhi Administration),                [(1976)  

SCC 644],  this  court  considered  a  case  in  which  police  officer  

arranged a raid after recording a complaint, but before sending it  

for  registration  of  the  case.   It  was  held  in  that  case  that  “the  

moment the Inspector had recorded a complaint with a view to take  

action to track the offender, whose name was not even known at  

that stage, and proceeded to achieve the object, visited the locality,  

questioned the accused, searched his person, seized the note and  

other documents, turns the entire process into investigation under  

the Code.  

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22)  In State of U.P.  vs. Bhagwant Kishore, [AIR 1964 SC 221], this  

court stated that “Though ordinarily investigation is undertaken on  

information received by a police officer, the receipt of information  

is not a condition precedent for investigation.”  

23)    The  principles  now  well  settled  is  that  when  information  

regarding  a  cognizable  offence  is  furnished  to  the  police  that  

information will be regarded as the FIR and all enquiries held by  

the  police  subsequent  thereto  would be  treated  as  investigation,  

even though the formal registration of the FIR takes place only  

later.   

24)Assuming that some report was made on telephone and that was  

the real First Information Report, this by itself would not affect the  

appreciation of evidence made by the learned Sessions Judge and  

the conclusions of fact drawn by him.  The FIR under Section 154  

Cr. P.C. is not a substantive piece of evidence.  Its only use is to  

contradict or corroborate the maker thereof.  Therefore, we see no  

merit in the submission made by learned counsel for the appellants.  

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25)Now we  focus  our  attention  to  the  merits  of  the  appeal.   The  

Postmortem was conducted by Dr. Ashit Som (PW6).  From the  

Postmortem Report  of  the  deceased Fanilal  Das,  it  appears  that  

injuries  on  their  examination  were  found to  be  ante  mortem in  

nature.   In his  opinion,  death is  due to shock and haemorrhage  

resulting from the injuries sustained which were caused by blunt  

weapons.    Unfortunately, the doctor has not stated in his report  

whether the injuries sustained by the deceased were of homicidal  

in nature.   Therefore,  we have seen the report  furnished by the  

doctor, who, as per his post mortem report found lacerated wound  

over  the  middle  of  frontal  region  of  the  scalp  with  fracture  of  

frontal  bone  corresponding  to  the  injury,  lacerated  wound  over  

right parietal of the scalp 6cmx2cmx2cm fracture of parietal bone,  

two incisior  and two canine teeth of both jaws were dislocated.  

Dislocation of both elbow and ankle joint was also there.  He has  

further opined that the injuries were fresh and caused by a blunt  

object.  It has come in the evidence of PW-8 that immediately after  

the inquest report was prepared, the body of the deceased was sent  

for post mortem.  This would coincide with this evidence on this  

aspect.  Secondly, the seizure report which is marked as one of the  

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exhibit in the evidence, he has clearly stated the material objects  

seized by him, such as nylon rope, bamboo stick, iron chain, dao,  

rod and lathi etc.  A little comparison of these seized objects and  

the wounds found on the body of the deceased, a safe inference can  

be drawn that this part of evidence of this witness can be believed,  

since  it  corroborates  with  the  opinion  of  the  Doctor,  PW-6.  

Therefore, it can be safely inferred that the deceased died because  

of the injuries sustained by the assault made by other persons and  

not by self inflicted wounds.  

26)The prosecution case solely rests on the evidence of PW1.  She is  

the wife of the deceased.  PW2, though turned hostile, has spoken  

to a part of the incident.  PW3 is the U.D.P. Secretary of Paikan  

Bazar.   He is  alleged to have gone to  Paikan Tempur Bazar  to  

purchase sweets and having heard from the people gathered on the  

side of the verandah of Chandu Das’s house at the Paikan Bazar,  

that  Fanilal  Das  lying  in  a  serious  condition,  he  informed  the  

Police from Ballu Das’s telephone.  This version of PW3 appears  

to be correct.  This information, in fact, triggered the Investigating  

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Agency  to  reach  the  place  of  incident  after  making  necessary  

entries in the Registers at the Police Station.   

27)The evidence of PW1 requires a thorough scrutiny.  PW1 is the  

wife of the deceased. According to her, one Upendra Das informed  

her that the accused persons including the appellants are assaulting  

her  husband  in  Kunja  Mohan’s  house  and  on  receiving  the  

information, it is further stated by her, that she immediately rushed  

to that place and found that the accused persons had tied the hands  

of her husband and were assaulting him.  It has also come in her  

evidence  that  she  saw  all  the  accused  persons  dragging  her  

husband  inside  their  house.   She  has  further  stated  around that  

time, the Police Party reached the spot and took her husband in a  

vehicle and she also accompanied her husband in the same vehicle  

and  on  arriving  at  the  hospital,  the  doctors  declared  that  her  

husband was dead and after inquest of the dead body, she returned  

home with the help of police and immediately she lodged the First  

Information Report (Ext.1).  In her cross-examination, suffice it to  

say, that nothing very striking except minor contradiction has been  

elicited, which would not shake her credibility.  In fact,  she has  

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stated that immediately after the Postmortem of the dead body, she  

lodged  the  FIR with  the  Police  and  she  has  further  denied  the  

suggestion that she did not tell the police that the accused persons  

had assaulted her husband and killed him while he was returning  

home  from  Hailkandi  Town  on  a  Rickshaw.   Therefore,  two  

important aspects emerge from her evidence before the Trial Court.  

Firstly, she has seen that her husband was tied by means of a rope  

in the house of Kunj Mohan Das and secondly, the accused persons  

including the appellants were assaulting her husband.  The case of  

the prosecution and the fate of the accused entirely depend on her  

version and, therefore, as we said earlier, it is on her testimony that  

the  fate  of  these  accused persons/appellants  really  hinges.   The  

reasons for not examining Upendra Das, who is supposed to have  

informed  PW1  about  the  incident,  is  not  explained  by  the  

prosecution.  Therefore, we might have to eschew this part of the  

evidence of PW1, since no effort  is made by the prosecution to  

explain  the  reason for  non-examination  of  one  of  the  important  

persons, who is said to have informed PW1 about the assault and  

dragging of the deceased into the house of first accused, who is not  

before us.   Then,  the  next  question that  would arise  is,  can we  

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believe, as has been done by both the Courts below, the other part  

of the testimony of this witness.  At this juncture, we intend to add  

that  if  the  prosecution  fails  to  explain  the  reason  for  non-

examination  of  an  important  witness,  who  is  supposed  to  have  

informed the alleged incident, should the accused persons go scot  

free.   It  is  a  difficult  question,  sometimes  difficult  to  answer.  

Since, it is noticed by this Court time and again that in number of  

criminal  cases,  because  of  sloppy  attitude  shown  by  the  

prosecution, the real culprit goes scot free.  It is no doubt true that  

when her statement was recorded under Section 161 Cr.P.C., she  

had  not  implicated  four  other  accused  persons  but  certainly  

implicated the appellants and two other accused persons.  Merely  

because she has made some improvement in the FIR lodged by her,  

we cannot totally discard her testimony.   

28)PW8 is the Investigating Officer.  He was attached to Hailakandi  

Police Station.  He was the one who visited the place of occurrence  

on being directed to do so by the office-in-charge of the Police  

Station.  In his evidence, he has stated that Iti Mohan Das-PW3  

took  him  to  the  place  of  occurrence  and  he  found  the  injured  

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Fanilal Das tied at the veranda of the accused persons.  It has also  

come in his evidence that on reaching the place of occurrence, he  

drew  up  sketch  map  of  the  place  of  occurrence,  and  seized  

incriminating materials.   He has also stated that he removed the  

injured  to  Hailakandi  Civil  Hospital  where  the  Medical  Officer  

declared him dead.  It has also come in his evidence that he was  

the one who prepared the Inquest Report.  He further narrates that  

PW2 informed him that the deceased was travelling in his rickshaw  

and  at  that  time,  Chandra  Das@Smritikanta  and  two  unknown  

persons  dragged him out  of  the  rickshaw and assaulted him by  

means of rod, hunter etc.  Though PW2 turned hostile, their part of  

evidence  supports  the  case  of  the  prosecution.   In  his  cross  

examination,  defence  has  elicited  from him that  Inquest  Report  

was prepared by him at 9.30 PM and FIR was registered at 11.30  

PM.  Much was made at out of this admission by learned senior  

counsel arguing for the appellants, we have already answered this  

issue  while  considering  the  issue  that  whether  FIR  loses  all  

authenticity if written after Inquest Report.  The other important  

admission  that  was  made  by  him  that  when  he  recorded  the  

statement of PW1, she did not mention the names of Subhash, Bela  

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Krishna and Rajan, but had mentioned the names of all the other  

accused  persons.   Her  version  that  she  went  to  the  place  of  

occurrence on being informed to her about the assaulting of her  

husband by the accused persons is corroborated in his testimony.  

It is also of some importance that PW-1 for the first time, in her  

evidence before the Court, implicated them and that is how, they  

were  arrayed  as  co-accused  and  tried  along  with  others.   The  

learned Trial Judge, however, has acquitted those accused persons.  

In our view, rightly so.  In our opinion, it is not necessary for the  

prosecution to examine every other witness cited by them in the  

charge-sheet.   Mere  non-examination  of  some persons  does  not  

corrode  the  vitality  of  the  prosecution  version,  particularly,  the  

witnesses  examined  have  withstood  the  cross-examination  and  

pointed to the accused persons as perpetrators of the crime.  The  

Trial Court and the High Court have come to the conclusion that  

the evidence of PW1 is trustworthy and reliable.  We have also  

carefully  perused  the  evidence  of  PW1,  whose  evidence  is  

corroborated by PW-8 and the Postmortem report issued by PW6,  

we are convinced that the Trial  Court and the High Court were  

justified in believing the testimony the testimony of PW-1.   

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29)Manilal  Das  –  PW2   is  declared  hostile  by  the  prosecution.  

However, in his examination-in-chief, he says that he was carrying  

Fanilal Das in his Rickshaw and he stopped the Rickshaw at Tepur  

Bazar on the request made by the deceased and it is at that time,  

the deceased had a quarrel  with some people and some persons  

assaulted him with blunt objects.  In his cross-examination by the  

learned counsel for the prosecution, he denies the suggestions put  

to him with reference to his statement made under Section 161 Cr.  

P.C. before the Investigating Officer.   

30)Md. Asaf Ali Majumdar – PW3, Md. Masuraff Ali Barbhuiya –  

PW4, Harmendra Das-PW5 are brought in by the prosecution as  

eye-witnesses  to  the  occurrence.   But  all  of  them  have  turned  

hostile.  Unfortunately, the trend in this country appears to be, as  

the time passes, dead are forgotten and the living with a criminal  

record are worshipped and adored and no witness would like to  

speak against them.  The Trial Court and the High Court has not  

given any credence to their evidence.   

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31)The testimony of Itimohan Das –PW7 has some relevance.  He is a  

local  tea  shop  owner.   He  has  stated  that  he  accompanied  the  

Police to the house of the accused and found the deceased tied with  

a rope in the verandah of Kunja Mohan.  He also states that he saw  

some  injuries  on  the  body  of  the  deceased  person.   He  also  

confirms that the Investigating Officer seized a chain, a lathi, one  

dao and a rope.    

32)In our view, having carefully seen the evidence of PW1, which is  

corroborated  by  the  postmortem report  issued  by  PW6 and  the  

evidence of PW8, it is trustworthy and reliable.  The Trial Court  

and the High Court have accepted her evidence while holding that  

the  accused  persons  in  furtherance  of  the  common  intention,  

assaulted Fanilal Das and killed him.  We do not find any good  

reason to upset this finding of the Trial Court and the High Court.  

33)The learned senior counsel submitted that the High Court in a most  

casual manner has rejected the appeals filed by the accused.  This  

assertion,  in  our  opinion,  is  not  justified.   The  High Court  has  

arrived at its findings after examination and consideration of the  

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main features of evidence.  It is only thereafter, the High Court has  

affirmed the findings of the trial court while convicting the accused  

persons.

34)In view of the foregoing discussion, we do not see any merit in this  

appeal.  Accordingly, it is dismissed.   

                                                                              ….……………………………………J.                                                                                  [ DR. MUKUNDAKAM SHARMA ]

                                                                               ..…..…………………………………J.                                                                                    [ H.L. DATTU ]

New Delhi, September 15, 2010.

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