CRL.A. NO. 1444 OF 2004

       IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1444 OF 2004

 DEEP SINGH & ORS. ..... APPELLANTS

VERSUS

STATE OF U.P. ..... RESPONDENT

WITH CRIMINAL APPEAL NO. 186 OF 2005

O R D E R

 This  judgment  will  dispose  of  Criminal  Appeal  

No. 1444 of 2004 and 186 of 2005 as they arise out of  

the judgment of the High Court of Uttaranchal dated  

12.08.2004.

The prosecution story is as under:-

At about 9:00p.m. on 21st May, 1989, the deceased  

Nazakat Ali along with P.W. 1 Fakhruddin & P.W. -3  

Aatiq was moving along the Tanakpur Tiraha Road when  

they came across the four appellants,  Deep Singh and  

Ganesh having knives in their hands while the other two  

appellants viz., Raju and Ram Singh were having an iron  

rod  and  a  stick  respectively  in  their  hands.   The  

appellants remarked that as the deceased had insulted  

Ganesh some time earlier, the insult would be avenged  

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at that very moment and saying so they assaulted the  

deceased  with  their  respective  weapons.  Nazakat  Ali  

fell to the ground after sustaining the injuries.  The  

entire incident was witnessed by Fakhruddin – P.W. 1,  

Aatiq – P.W. 3 who were accompanying the deceased and  

Abdul Razak – P.W. 5 who reached the place of incident  

at the time of attack.  The three witnesses attempted  

to apprehend the appellants but they made good their  

escape  moving  towards  the  Jam  Factory  premises.  

Nazakat Ali, in a precarious condition, was removed to  

the  hospital  by  Fakhruddin  and  the  others  but  he  

succumbed  to  his  injuries  within  a  short  time.  

Fakhruddin   thereupon  made  out  a  report  which  was  

transcribed by Aatiq and thereafter took the same to  

the police station and lodged the First Information  

Report  at  9:50p.m.  for  an  offence  punishable  under  

Section 302 of the Indian Penal Code.  Sub Inspector  

Balbir Singh was deputed to the hospital to prepare the  

inquest report.  The dead body was also subjected to a  

post-mortem at 11:00a.m. on the 22nd May, 1989, and Dr.  

B.D. Nariyal found six injuries on the dead body four  

being stabbed injuries and two being abrasions of small  

dimensions.  The doctor opined that the cause of death  

was shock and haemorrhage  and that the ante-mortem  

injuries were all on vital parts of the body.  On the  

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completion of investigation, the accused were charged  

and tried under Section 302/34 of the IPC.  As they  

denied the charge, they were brought on trial.

The prosecution in support of its case examined  

three eye witnesses Fakhruddin – P.W. 1, Atiq – P.W. 3  

and P.W. 5 – Abdul Razak, Dr. B.D. Nariyal - P.W. 4 ,  

the  doctor  who  had  performed  the  post  mortem  

examination and Sub Inspector - Devender Singh, P.W. 7,  

the Investigating Officer. In their statements under  

Section  313  of  the  Code  of  Criminal  Procedure,  the  

appellants  denied  the  prosecution  allegations  and  

pleaded false implication.

The  Trial  Judge  on  a  consideration  of  the  

evidence on record convicted the accused for having  

committed an offence punishable under Section 302/34 of  

the IPC and sentenced them to undergo imprisonment for  

life and fine of Rs.1,000/- and in default of payment  

thereof to undergo further rigorous imprisonment  of  

three months. This judgment had been confirmed by the  

High Court in appeal.

The  matter  is  before  us  after  the  grant  of  

special leave.

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Three basic arguments have been raised by the  

learned counsel for the appellants during the course of  

the hearing.  It has first been pointed out that the  

three  eye  witnesses  P.Ws.  1,  3  and  5   were  chance  

witnesses and their presence at that place had to be  

ruled out the more so as each of the witnesses had  

given  different  versions  as  to  what  had  transpired  

during the incident.  It has also been pleaded that  

there was no apparent motive for the assault as the  

vague allegations with regard to some insult which had  

been meted out to Ganesh had not been proved on record.  

It has finally been pleaded that the medical evidence  

did not support the ocular account  inasmuch as that  

the incident could not have happened at 9:00p.m. and  

was more likely to have happened at about 12 mid night,  

which made the presence of the eye witnesses doubtful.  

In this connection, it has also been pointed out that  

out of the six injuries, four were as per doctor's  

evidence  stab wounds which could have been caused with  

knives but there was some ambivalence with regard to  

the causing of the injuries by the iron road and the  

stick and for this reason as well, the appellants were  

entitled to succeed.

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The learned counsel for the State has, however,  

emphasized  that  the  incident  had  happened  at  about  

9:00p.m. and the FIR had been lodged at the police  

station within about 45 minutes and it appeared from  

the record that the special report had been delivered  

to  the  Magistrate  at  Tanakpur  itself  within  a  very  

short time and as such the allegations of a belated FIR  

which had been ante-time did not arise.  It has also  

been pointed out that the two courts, the trial court  

as well as the High Court, had on a concurrent finding  

of fact arrived at a conclusion that the appellants  

were guilty of murder.

We  have  heard  the  learned  counsel  for  the  

parties  and  gone  through  the  records  on  the  issues  

raised by them.  We find absolutely no reason to differ  

with the findings of the courts below with regard to  

the evidence of the three eye witnesses.  It is true,  

as contended by the learned counsel, that the names of  

the accused do not find mention in the inquest report  

but we find that no adverse inference can be drawn from  

this omission as there is no requirement of law that  

the  names  of  the  accused  must  be  mentioned  in  the  

inquest report, although, this observation should not  

be held to mean that the non-mentioning of the names in  

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the inquest report can always be ignored as the mention  

of  the  names  strengthens  the  prosecution  story  and  

gives the Investigating Agency little opportunity in  

tampering with the evidence.  In the present matter,  

however, we find that the fact that the FIR had been  

lodged within a very short time and special report also  

having  been  delivered   within  a  few  hours,   the  

possibility that the FIR had been written later and  

then ante-time cannot be accepted.

In this view of the matter, the FIR having been  

lodged  within  45  minutes  of  the  incident  giving  a  

detailed account of the incident including the names of  

the accused and the weapons that they were carrying, we  

are  clearly  of  the  opinion  that  it  rules  out  any  

suspicion about the absence of the witnesses.  It must  

also be borne in mind that the evidence of several  

witnesses is bound to differ on several aspects and  

that  a parrot like deposition would, as a matter of  

fact, smack of tutoring.   We find from the record that  

the three witnesses have been clearly in accordance  

with each other in respect of the major issues raised  

in the evidence.   In this view of the matter and the  

fact that there was no motive or the motive was vague,  

loses all significance.

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We  have  also  considered  the  argument  of  the  

learned  counsel  with  respect  to  the  discrepancies  

between  the  medical  and  the  ocular  evidence.   The  

learned counsel has relied on a stray sentence in the  

cross examination of P.W. 4, the doctor, who stated  

that on account of the state of the dead body  the  

possibility that the incident could  have happened at  

12 midnight also could not be ruled out.  It is also  

significant  that  no  question  was  put  to  the  doctor  

whether the death having taken place at about 9:00p.m.  

was also to be ruled out.  In the background of the  

fact that the FIR had been lodged within a very short  

time,  it must also be taken that the incident had  

happened at 9:00p.m.

It  has  finally  been  submitted  by  the  learned  

counsel that Raju was armed with an iron rod and Ram  

Singh  with a stick and as only two abrasions had been  

attributed  to  them,  there  was  some  suspicion  about  

their involvement.  The injuries found on the dead body  

are reproduced below:-

“1.  An oval stab wound 1 ½ cm X ½ cm  chest deep.  Left side chest 8cm below  and medial to left nipple over 5th & 6th  

inter costal oozing of blood present.

2.  Stabbed wound 1cm X 1 ½ cm front of  the abdomen 21cm below the right nipple  5cm to cavity, upwardly direction oval in  

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shape.

3.  Stabbed wound 2cm X 1 ½ cm front of  the abdomen 21 cm below the right nipple  5cm to cavity, upwardly direction oval in  shape.

4.  Stabbed wound 2 ½ cm X 2 cm cavity  deep, 5 cm below to injury no. 3.

5.  Abrasion 1 ½ cm X ½ cm in the middle  of back.

6.   Abrasion  ½  cm  X  1  cm  over  right  buttock.”

Injuries 5 and 6 have been attributed to Raju  

and Ram Singh.  We notice that the dimensions of the  

injuries are so miniscule that the possibility that  

they could have been caused by fall during the fracas  

is a possibility. We have also examined the statement  

of the eye witnesses.  We observe that Fakhruddin -  

P.W. 1 and Aatiq - P.W. 3 did not attribute any injury  

to these two appellants and Abdul Rahman - P.W. 5  too  

does not specifically single them out for having caused  

injuries  nos.  5  and  6.   We  are,  therefore,  of  the  

opinion  that  they  would  be  entitled  to  benefit  of  

doubt.

Criminal Appeal No. 186 of 2005 is dismissed in  

toto  whereas  Criminal  Appeal  No.  1444  of  2004  is  

allowed qua Raju and Ram Singh appellant Nos. 2 and 3  

and dismissed qua appellant No. 1 Deep Singh.   

In  view  of  the  above,  Raju   and  Ram  Singh,  

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appellant Nos. 2 and 3 shall be released forthwith if  

not required in connection with any other case.  

    ..................J      [HARJIT SINGH BEDI]

    ..................J      [J.M. PANCHAL]

NEW DELHI SEPTEMBER 16, 2009.

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