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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: HARI RAM AND OTHERS

DATE OF JUDGMENT07/09/1983

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA THAKKAR, M.P. (J)

CITATION:  1983 AIR 1081            1983 SCR  (3) 885  1983 SCC  (4) 453        1983 SCALE  (2)268

ACT:      Criminal  Proceedings  -  F.I.R.  is  not  supposed  to contain minute details.      Evidence  of  interested  witness-Manner  in  which  it should be dealt with.

HEADNOTE:      The respondents  were convicted  and sentenced under 8. 302 read  with s.  34 I.P.C.  for having caused the death of one Rajinder Kumar by assaulting him with knives and ballams (spears). The  F.I.R. was  lodged  within  an  hour  of  the occurrence and  the Investigating  officer reached  the spot within  three  hours  of  the  lodging  of  the  F.I.R.  and immediately thereafter  examined, among  others, PWs 1 and 2 who were  eye witnesses  to the occurrence. According to the post-mortem report  the  deceased  had  sustained  one  stab wound, one  incised wound,  two  lacerated  wounds  and  two abrasions. The  central  evidence  against  the  respondents consisted of  the statements  of PWs  1, 2  and 3  which was accepted by the trial court.      The respondents  preferred an  appeal to tho High Court which acquitted them inter alia on the ground that there was inconsistency between  medical and  ocular evidence inasmuch as the  respondents who were alleged to have been armed with sharp cutting weapons like knives and ballams could not have caused  the   lacerated  wounds   and  abrasions;  that  the explanation given  by PWs 1,2 and 3 in their statements that the lacerated  wounds and  abrasions had  been caused by the deceased having  been struck  by the  lathi portion  of  the ballams was  an after  thought since there was no mention in the F.I.R.  of the  fact that  ballams had  been  used  like lathis; that the evidence of witnesses PWs 1 and 3 could not be relied  upon as  they were interested witnesses; and that the circular,  stance that PW 2 was called from the house of his uncle three hours after the occurrence indicated that he was not  present at the scene of the crime and therefore his evidence also could not be relied upon.      Allowing the appeal, ^      HELD: 1.  An F.I.R.  is not  supposed to contain minute details of  an incident;  it is  merely meant  to narrate in brief the  facts which  led to the incident, viz., the place

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of occurrence, the names of assailants, etc. [891 C-D]      In the instant case the High Court was not justified in coming  to   the  conclusion  that  the  statements  of  eye witnesses regarding the deceased having 886 been assaulted with the lathi portions of the ballams was an afterthought just because there was no mention in the F.I.R. Of the  fact that  ballams had  been used like lathis. There was no  occasion for  the complainant to have mentioned such detailed facts  as to  how the various arms were wielded and in what manner and to what extent. The witnesses had clearly explained in their statements that the accused had plied and struck the  deceased with  the lathi portions of the ballams on the  front side  and this  was fully  corroborated by the medical evidence  which showed that the two lacerated wounds were on  the right  side of  the front  portion of the head. Thus far  from being  inconsistent the ocular evidence fully corroborated the medical evidence. It can safely be presumed that the  copies of statements recorded by the Investigating officer had been supplied to the respondents long before the trial started. If there was any omission in their statements regarding the  fact that  ballams were used as lathis, it is inconceivable that  the defence  would not  have  drawn  the attention of the witnesses to this omission which would have disclosed a  manifest defect  in the  prosecution  evidence. Further, the  Investigating officer had categorically denied the suggestion  that the  statements of  witnesses had  been recorded after  the receipt  of the post-mortem report. [891 H, 892 A, 890 F-H, 891 A-B]      2. The  mere fact  that witnesses are interested is. no ground for  throwing out  their evidence overboard. All that is necessary  is that  in such  cases, the  evidence of  the witnesses should  be examined  with caution and, having done that, if  the court  feels that the evidence does not suffer from any  other legal  or factual  infirmity,  there  is  no reason to  distrust the  evidence of  such  a  witness.  The evidence of  an interested  witness is not like the evidence of an  approver which  would need corroboration and the rule of caution cannot be confirmed in a straitjacket. [894 F-G]      In  the  instant  case  the  High  Court  rejected  the evidence of  PWs 1  and 3  on the sole ground that they were interested and  did not  enter into  the intrinsic merits of their evidence. [889 E]      The High  Court was also not justified in rejecting the evidence of  PW 2  who was an independent witness. lt is not disputed that  PW 2  used to  remain at  his fodder shop and sleep there  and he was therefore the most competent witness to see the occurrence. There is no inherent improbability in the statement of PW 2 that, being terrified by the incident, he had  gone to  the house  of his  uncle from  where he was called by  the Investigating officer. The circumstances that he was  called from the house of his uncle three hours after the occurrence  and was  not found to be present at his shop cannot lead  to the  conclusion that he could not be present there at the time of the occurrence. [893 H, 894 A-E]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 450 of 1977.      From the  judgment and  order dated the 23rd September, 1976 of  the Allahabad High Court in Criminal Appeal No. 166 of 1972. 887

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    Gopal Subramaniam, Dalveer Bhandari and R. S. Yadav for the Appellant.      R. K. Garg and V. J. Francis for the Respondents.      The Judgment of the Court was delivered by      FAZAL ALI,  J. This appeal by special leave is directed against a judgment dated September 23, 1976 of the Allahabad High Court  acquitting the respondents of the charges framed against  them  after  setting  aside  the  judgment  of  the Sessions Judge who had convicted them under s. 302 read with s. 34  of the  Indian  Penal  Code  and  sentenced  them  to imprisonment for life.      The facts  of the  case have  been detailed  and  fully narrated by  the High Court and the Sessions Judge and it is not necessary  for us  to repeat  the same  all over  again. Suffice it  to say  that the  occurrence is  alleged to have taken place  on the 29th of May 1969 near the office of Cane society in Mohalla Chohanan of Jwalapur town situated within the District  of Saharanpur.  The deceased  (Rajinder Kumar) and the  respondents were  closely related and there appears to have  been some  sort of  a chronic  dispute between them which culminated  in the said occurrence on May 29, 1969. In the morning  of May  29, 1969  Rajinder  Kumar  scolded  the respondent Hari  Ram and  his brother  Atma Ram  for  having misbehaved  with   his  father   and  thereafter   a   short altercation took  place in  the course of which Hari Ram and Atma Ram  threatened to kill him (Rajinder Kumar). According to the  prosecution, on  the same  night at about 10.30 p.m. while the deceased was proceeding from his house to his Gher and was  negotiating the  road at  a point  very  close  the office of  the Cane  Society he  was confronted  by the four respondents, viz,  Hari Ram,  Satyapal, Naqli  and Surendra. Naqli and  Surendra were  armed with  knives with spears. On seeing the  deceased, Hari  Ram  exhorted  and  incited  his companions to kill the deceased as a result of which all the four  respondents   assaulted  the   deceased   with   their respective weapons. According to  the prosecution, Naqli and Surendra struck  the deceased  with their  knives while Hari Ram and Satyapal assaulted him with the Lathi portion of the spears. Thereafter,  the respondents  fled eastward  towards the tiraha.  PW 1  (Rattan Singh),  PW 2  (Suresh) and  PW 3 (Harish) were  attracted to  the  scene  of  the  crime  and witnessed the same. 888      It was  further alleged  by the prosecution that at the time of  the incident  apart from  the burning of the street light it  was a  moonlight night  also and there could be no difficulty in  identifying  the  assailants.  Even  so,  the assailants. and  the deceased were fully known to each other and even  if there  was no street light they could have been easily identified in the moonlight. Even the defence has not been able  to show  that the  date of  occurrence was a dark night nor was this fact questioned before any of the courts. As a result of the injuries received by the deceased he fell down on  the spot  and died soon after PW 1 arranged a rehri and brought  it to  the place of occurrence in order to take the deceased  to the  hospital. The female folk of the house of Sardar  Singh  and  other  neighbours  also  arrived  and surrounded the  dead body  and  everybody  was  weeping  and crying. Harish  Chand (PW  3) drew up a report (Ex. Ka-l) of the occurrence  at the  scene of  the crime with the help of electric light  on the  street and  proceeded to the police- station alongwith  Ratan Singh  (PW 1)  and others where the dead-body was  placed in  the custody  of the police and the written  report   was  lodged  at  about  11.15  p.m.  After completing the usual formalities, the investigating officer,

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M. P.  Wats (PW  13), drew  up the  farde  beyan  which  was treated as  the F.I.R.  An endorsement on the FIR shows that it was  despatched  to  the  Magistrate  some  time  in  the midnight after  12 O’clock.  This fact  is important because much has  been made  by the  respondents regarding the ante- timing of  the FIR  by the police. The investigating officer after taking  down the  FIR proceeded  to the  spot where he reached at  about 2.30  a. m  and immediately  examined  the witnesses Surat  Singh (not  examined in court), Ratan Singh (PW 1) and Suresh (PW 2). He also summoned some persons from the locality and interrogated some people of the mohalla. It was also  alleged by PW 13 that on making enquiries from the accused-respondents, Naqli made a statement which led to the recovery of  knife from  inside his  house which  was  found concealed in the folds of certain clothes kept in a tin box. As none  of the  courts below have relied on the evidence of recovery we would leave the matter here.      The case  of the  defence was  that  the  deceased  was murdered by  some unknown  persons and  the respondents were falsely implicated because of the previous enmity. The trial court after  a very  careful  consideration  and  meticulous discussion  of   the  evidence  on  record  found  that  the prosecution case  was proved  beyond  reasonable  doubt  and accordingly convicted the respondents under s. 302 read with s, 34,  I.P.C. and  sentenced them to imprisonment for life, as stated 889 above. The  respondents then preferred an appeal to the High Court which  acquitted them  and hence  this appeal  by  the State of  U. P.  in this  Court. As the matter lies within a very narrow  compass and  small spectrum it is not necessary for us to delve into further details of the case.      The central  evidence against  the respondents consists of the  statements  of  PWs  1,  2  and  3  who  proved  the occurrence and  their evidence  was accepted  by  the  trial court but  the High Court refused to rely on them. It may be mentioned that  out of  the eye-witnesses, PW 1 was not only an independent witness but as would appear from his evidence he was  also a  class fellow  of  one  of  the  respondents, Surendra. In this connection he stated thus           "Accused Surendra and myself have read in one      and the same school. We both were neighbours also.      We had good relationships". The other  two witnesses were no doubt interested to a large extent and  the High  Court seems  to  have  rejected  their evidence on  this ground  alone without  entering  into  the intrinsic merits of their evidence. A careful perusal of the judgment of  the High  Court shows  that so  far as  PW 2 is concerned, no good reason has been given as to why he should be disbelieved  nor has  the High Court displaced any of the reasons or  circumstances relied  upon by the trial court in placing implicit  reliance on  the evidence  of PW 2. It may also be  mentioned that  PW 2 was one of the persons who was examined by the Investigating officer (PW 13) at the spot at about 2.30  a.m. and  therefore in our opinion, there should have been  very strong reasons to disbelieve the evidence of such a witness by the High Court.      This being  an appeal against order of acquittal passed by the  High Court,  we have very carefully gone through the judgments of  the High  Court, that  of the  trial court and also the  evidence of  the three eye-witnesses, including PW 2. It  seems to  us that  the High Court realizing that PW 2 was an  independent witness,  brushed aside  his evidence on grounds which  are wholly  untenable in law. The cornerstone and sheet-anchor  of the  High Court’s  judgment seems to be

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two circumstances  on which  the entire prosecution case has been rejected- 890      (1)   that the ocular evidence adduced in court by           the prosecution  was wholly inconsistent with           the medical evidence, and      (2)   that the  FIR seems to have been lodged some           time in  the early  hours of  the morning  of           30th May  1969  and  not  at  11.15  p.m.  On           29.5.69, as  alleged by the prosecution, and,           therefore, there  was sufficient time for the           prosecution to  bolster up a case against the           the  respondents  in  view  of  the  previous           enmity. There are  some other  reasons given  by the  High Court  to which we shall refer hereafter.      Coming to  the first  circumstance relied  upon by  the High Court  about the  inconsistency between  the ocular and the medical evidence, we are clearly of the opinion that the High Court has committed a serious and grave error of law by misreading  the   evidence  of  the  eye-witnesses  on  this question.  According  to  Dr  S.  S.  Anand,  (PW  14),  who conducted post-mortem  examination on  the dead  body of the deceased, the  deceased had sustained one stab wound and one incised  wound   besides  two   lacerated  wounds   and  two abrasions. The  fundamental reasons  given by the High Court was  that   as  all   the  respondents,   according  to  the prosecution, were  armed with  sharp  cutting  weapons  like spears, the lacerated wounds or the abrasions could not have been caused  by the  said weapons  and therefore there was a serious inconsistency  between the  medical and  the  ocular evidence which  by itself  amounted to  a manifest defect in the prosecution case, resulting in its rejection. It is true that according  to the  evidence of  the  eye-witnesses  the respondents Naqli  and Surendra were armed with knives while Hari Ram  and Satyapal were armed with ballams (spears). The witnesses had clearly explained in their statements that the accused, who  were armed  with ballams,  plied or struck the deceased by  the lathi  portion of  the spears  on the front side. This  is fully  corroborated by  the medical  evidence which shows  that the two lacerated wounds were on the right side of  the front portion of the head. Thus, far from being inconsistent, the  ocular evidence  fully  corroborates  the medical evidence.  The High  Court, however,  seems to  have made a  mountain of  a mole hill by concluding that as there was no mention in the FIR of the fact that ballams were used like lathis,  the explanation  given by the witnesses in the court that  ballams  were  used  like  lathis  or  that  the deceased was struck by the 891 lathi portion of the ballams appears to be an after thought. The High  Court seems  to suggest  that the story of ballams having been  plied like  lathis was introduced for the first time after  the medical report was given in order to give an explanation  for  the  apparent  inconsistency  between  the ocular and  the medical evidence. We are, however, unable to agree with  this somewhat  broad and  speculative process of reasoning, particularly  when PW 13 categorically denied the suggestion made  to him  by the  defence  counsel  that  the statements of  the witnesses  were recorded  in the  morning after receipt  of the  postmortem report  (vide p. 40 of the paper book).  It is  common ground  that the  FIR  does  not contain full  or meticulous  details of  the incident but is merely meant  to narrate  the brief  facts which  led to the incident, viz.,  names of  the assailants  and the  place of

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occurrence, etc.  Therefore, there  was no  occasion for the complaint to  have mentioned  such detailed  facts as to how the various  arms were  wielded, in  what manner and to what extent. A  FlR  is  not  supposed  to  contain  such  minute details. Moreover,  we find that the FIR in the instant case was filed  at about  11.55 p.  m. and  according to the sole testimony of  PW 13,  the Investigating  officer, he reached the spot r 2 30 a.m., i. e, within 3 hours of the lodging of the FIR, and recorded the statement of the eye-witnesses. It can  be  safely  presumed  that  copies  of  the  statements recorded by  PW 13  had been supplied to the respondents, as required  by   the  provisions   of  the  Code  of  Criminal Procedure, long  before the  trial started. If there was any omission in their statements regarding the fact that ballams were used  as lathis,  it is  inconceivable that the defence would not  have drawn  attention  of  the  witness  to  this omission which would have disclosed a manifest defect in the prosecution evidence.  PWs 1 and 3 have categorically stated in their  evidence that ballams were used as lathis and they were not  sought to  be contradicted of the omission of this fact  in   their  statements  before  the  police.  Had  the witnesses omitted  to  state  this  fact  in  their  earlier statements before the police, their attention must have been drawn to  the said  material omission  when they appeared as witnesses in  court and to the Investigating officer (PW 13) when he  was examined  in court.  In  the  absence  of  this important circumstance the High Court was wholly unjustified in making  a capital  out of the alleged ommission which was not there at all. This non-existent omission seems to be the very fabric  and foundation  for the  reasoning of  the High Court in rejecting the prosecution case.      In view  of these circumstances, the High Court was not at all  justified in  jumping to  the  conclusion  that  the statements of the eye- 892 witnesses regarding  the deceased  having been  assaulted by the lathi  portion of  the spears  was an  afterthought. The following observations  of the High Court, with due respect, amount to an imputation against the witnesses and inflicting an ’unkind cut indeed’ on the testimony of Satyapal and Hari Ram:           "His evidence is in conflict with the medical      evidence, as  it is  clear  from  the  post-mortem      report that two lacerated wounds were found on the      body of  the deceased, which goes to show that the      deceased was also assaulted by a blunt weapon like      a lathi."      Thus if  this circumstance  disappears  then  the  very edifice on which the reasoning of the High Court is based so far as  the point  relating  to  inconsistency  between  the ocular and  medical evidence  is concerned stands completely demolished.      Another important  reason given  by the  High Court  is that the  FIR seems  to have  been ante-timed and very great stress was  laid on  the fact  that the recitals in the FIR; clearly show that the morning incident had taken place a day before the  Report was  lodged at  the police  station which means that  if the  occurrence had taken place a day earlier the report  was lodged  the next day. On a specific question put to  PW 1  he clearly  explained that  he used  the  word ’yesterday’ because  at that  time he was in great shock and distress  following  the  heinous  crime  committed  on  the deceased who  was his  close relation.  Furthermore,  it  is common knowledge  that villagers  don’t have  a mathematical idea of the actual time when midnight begins or ends. As the

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occurrence resulting  in exchange  of hot  words  had  taken place on the morning of 29th May 1969 and the FIR was lodged near about the midnight, the informant could have reasonably thought that  in view  of the  nightfall the  next  day  had arrived though  from the  mathematical or astronomical point of view  this may be quite correct. What difference would it make if the FIR was lodged at 11.15 p.m. Or 12.00 O’clock or past 12  a. m.  If the  FIR was  lodged immediately after 12 o’clock in  the midnight  then the  description of  the word ’yesterday’ would be quite correct.      In these  circumstances, we are satisfied that not much can be  made even  of this so called infirmity and from this we cannot  jump to  the conclusion  that the occurrence took place on  the morning  of 30th  May and  not on the night of 29th May. Moreover, the evidence 893 of the Investigating officer and other eye-witnesses clearly discloses that  PW 13  (I.O.) arrived at the spot near about 2.30 a.  m. and  took the  statements of  eye-witnesses  and interrogated  lot   of  other   persons.  This,   therefore, completely excludes the possibility that the occurrence took place some  time in  the  morning  of  30th  May.  In  these circumstances, therefore,  assuming that  there may  be some infirmity, it appears to be of a very trivial nature and not sufficient to  lead to  conclusion that  the FIR  was  ante- timed.      Another important error into which the High Court seems to have  fallen is  to  reject  the  evidence  of  the  only important  independent   witness,  Suresh  (PW  2),  without examining his  evidence on  intrinsic merits and giving good reasons for  doing so.  All that  the High  Court had to say regarding PW 2 may be extracted thus:-           "He also corroborated the statement of Harish      Chand (PW  3) regarding the incident. His evidence      is also  in conflict with the medical evidence. He      stated that  after the  incident, he became afraid      and went  to the house of his uncle and was called      from there  by the Investigating officer at 2 a m.      The explanation  furnished by him for going to the      house of  his uncle  after the  incident cannot be      accepted as  it appears to be highly unnatural. If      he was  present at  his fodder shop at the time of      the incident  he should  have been  there when the      Investigating officer  to the place of occurrence.      The fact  that he was called from the house of his      uncle by  the Investigating  officer at 2 a. m. On      30.5.69 indicates  that he  was not present at his      fodder shop  at the  time of  the incident. It was      admitted by  him that  Chhajja of  Phul Singh, the      uncle of  Surender, appellant,  was broken  by the      collusion of his truck and the driver of his truck      paid the  compensation for  the damages  caused to      the Chhajja  to Phul  Singh. He also admitted that      the deceased was his class-fellow."      If we  examine the  reasons given  by the High Court we find that the reasons given are wholly unsustainable in law. As already  indicated, the  first  reason  that  the  ocular evidence was in conflict with the medical evidence no longer survives. Secondly,  the fact  that being  terrified by  the incident PW  2 went  to the house of his uncle from where he was called by the Investigating officer does not show 894 that his  evidence was  false and we do not see any inherent improbability in  the statement  of PW 2. It is not disputed that the Witness used to remain at his fodder shop and sleep

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there. He would, therefore, be the most competent witness to see the occurrence. The circumstance that he was called from the house  of his uncle three hours after the occurrence and was not  found to  be present at his shop cannot lead to the conclusion that  he could  not be present at the time of the occurrence. This  reasoning is  based purely  on conjectures and the  High Court  seems to have overlooked the psychology of the  witness who  terrified by  a murder  taking place in front of  his eyes thought it expedient to go to his uncle’s house.      The last  reason given  by the  High Court in rejecting the  evidence   of  PW  2  is  that  the  deceased  was  his classfellow and  there fore  he could  not be  said to  be a disinterested witness. We are unable to agree with this line of reasoning  because merely  being a class-fellow, he could not be  stamped as  an interested witness. Even so, the High Court seems  to have  overlooked the  fact that  the witness clearly stated  at page 16 of the Paperbook that he was also a class  fellow of one of the accused-respondents, Surendra. Thus, far  from being  interested, the witness seems to be a common friend  of the  accused and, therefore, is not likely to depose falsely against one or the other.      This Court  has laid down in a series of cases that the mere fact  that witnesses  are interested  is no  ground for throwing out their evidence aboard. All that is necessary is that in  such cases, the evidence of the witnesses should be examined with  caution and  having done  that if  the  court feels that the evidence does not suffer from any other legal or factual  infirmity, there  is no  reason to  distrust the evidence of  such a  witness. It  may be  mentioned that the evidence of  an interested  witness is not like the evidence of an  approver which  would need corroboration and the rule of caution cannot be confined in a straitjacket,      Summing up, therefore, these are the only reasons given by the  High Court  for reversing the well-reasoned judgment of the  trial court which convicted the respondents under s. 302 read with s. 34, I.P.C.      Mr. Garg,  appearing  for  the  respondents  vehemently contended that  in an  appeal against  acquittal this  Court would not interfere 895 unless there  are substantial  or compelling reasons for the same or where the view taken by the High Court appears to be absolutely  perverse.  This  was  not  a  case,  argued  the counsel, in which it could be said that a different view was reasonably  possible  and  hence  the  acquittal  should  be upheld. We  are, however, unable to agree with this argument because after  carefully scrutinising  the reasons  given by the High Court in reversing the judgment of the trial court, we are  clearly of the opinion that the judgment of the High Court perilously borders on perversity and this is certainly not a case where two views are possible.      Mr Garg drew our attention to certain decisions of this Court  regarding   the  principles  on  which  an  order  of acquittal could  be set aside and laid special stress on the ratio in  the cases  of Thulia  Kuli v.  The State  of Tamil Nadu(1) and  Dalbir Kaur & orS. v. State of Punjab(2) We are fully alive to the principles laid down by this Court and on the findings of fact arrived and the application of law made by us,  we are  of the  opinion that  this case is in no way inconsistent with the principles enunciated by this Court in the cases referred to above.      Lastly, Mr Garg appealed to this Court not to interfere in this case as the accused have been subjected to a waiting period of  about IS  years starting  from the institution of

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the case  till the judgment of this Court. We are afraid, it is not  possible to  concede to  the request  of the counsel because once  we find that the respondents are guilty of the offence of  murder, whatever  be the  nature of  the timelag between the prosecution and conviction the law must take its course.      The High  Court has committeed serious errors of law in appreciating and  marshalling the evidence and in basing its conclusions more  on speculation  that on  the evidence  led before the  trial court.  On  a  careful  consideration  and detailed review  of the  evidence and  circumstances of  the case we  are fully satisfied that there is no good reason to disbelieve the testimony of PWs 1, Z and 3 particularly when the evidence  of PWs  1 and 3 was fully corroborated by PW 2 who was  doubtless an independent witness and whose evidence did not  suffer from  any manifest  defect.  We,  therefore, fully believe the 896 tostimony of  the  eye-witnesses  and  hold  that  from  the evidence on  record the  prosecution case  has  been  proved beyond reasonable doubt and the order of acquittal passed by the High  Court was  wrong  on  a  point  of  law  which  is sufficient   to   warrant   our   interference.   In   these circumstances, it  is impossible to sustain, the judgment of the High Court.      We, therefore, allow the appeal, set aside the judgment of the  High Court  and convict the respondents under s. 302 read with  s. 34  of the Indian Penal Code and sentence them to imprisonment  for life  for  causing  the  death  of  the deceased, Rajinder  Kumar. The respondents who were on bail, will now  surrender to  their bail-bonds  and be  taken into custody to serve out the sentence imposed. H.L.C.                                        Appeal allowed 897