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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1034 OF 2013

State of M.P.       .. Appellant Versus

Ratan Singh & Ors.      .. Respondents

J U D G M E N T

Mohan M. Shantanagoudar, J.

1. This  appeal  is  directed  against  the  judgment  dated

03.02.2010 passed by the High Court of Madhya Pradesh, Bench

at Gwalior in Criminal Appeal No. 599 of 2001.  The High Court

while  allowing  the  appeal  had  acquitted  the  accused  and  set

aside the judgment dated 07.11.2001 passed by the Additional

Sessions  Judge,  Sironj,  District  Vidisha  in  Sessions  Trial  No.

73/92  convicting  the  four  respondents  for  the  offences

punishable under Sections 302, 324 and 323 read with Section

34 of the Indian Penal Code (for short ‘the IPC’).  

2.  The case of  the prosecution in brief  is  that there was a

dispute  in  respect  of  a  pathway  between  the  deceased  (Devi

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Singh)  and  Salag  Ram.   In  order  to  resolve  the  dispute,  the

jurisdictional Tehsildar with the help of others got measured the

place  and  found  that  the  deceased  had  closed  the  way  and

consequently  the  way  was  got  opened.   However,  the

misunderstanding in respect of the earlier dispute continued.  At

about  9.00  am  on  30.08.1991,  18  persons  including  the

respondents, formed themselves into an unlawful assembly and

broke  into  the  residential  house  of  the  complainant  -  Khilan

Singh in order to cause injury to Devi Singh.  The accused were

carrying  farsi (sharp  edged  object),  lathis  and  other  weapons.

They dealt  blows on the  head of  Khilan Singh,  as  a result  of

which he fell down.  At that juncture, the deceased, Devi Singh,

intervened and he was also assaulted by the accused persons

with farsi and lathis, as a result of which the deceased fell down

on the ground.  The First Information Report (for short ‘the FIR’)

came  to  be  lodged  at  about  8.30  pm  on  30.08.1991.   The

charge-sheet was filed for various offences including the offence

under  Section  302  read  with  Section  149  of  the  IPC.   As

mentioned supra, the Trial Court convicted the respondents/four

accused, namely, Ratan Singh S/o Gulab Singh, Chandan Singh

S/o Gulab Singh, Salag Ram S/o Mohan Singh and Ramesh S/o

Aman  Singh  for  charges  levelled  against  them  and  sentenced

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them to undergo imprisonment for life. The appeal filed by the

convicted accused before the High Court was allowed and they

were acquitted vide the impugned judgment.  Hence, this appeal

by the State.   

3.     Learned Advocates on both sides argued in support of their

respective contentions.  Both of them have taken us through the

evidence on record.  In order to satisfy our conscience and as

there  were  divergent  findings,  the  evidence  on  record  is

considered at length.   

4. To begin with, though the incident has taken place at about

9.00  am on  30.08.1991  and  though  the  names  of  all  the  18

persons  were  known  to  the  complainant  -  Khilan  Singh,

absolutely no valid reason was forthcoming on record as to why

there was a delay in lodging the FIR.  The Courts generally will

not disbelieve the version of the eye witnesses even if  there is

some delay in lodging the FIR, if the versions of the eye witnesses

are  reliable  and  trustworthy.  However,  the  delay  needs  to  be

explained. This Court, in Apren Joseph v. State of Kerala, (1973)

3 SCC 114, emphasised that since a promptly filed FIR reflects

reduced chances  of  embellishment,  fabrication or  distortion in

memory,  in  cases  of  delay  in  filing  the  FIR it  is  important  to

assess  the  explanation  therefore,  to  look  for  possible  ulterior

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motives,  and  to  assess  its  effect  on  the  credibility  of  the

prosecution version. The following observations of the Court are

pertinent in this regard:  

“11. Now  first  information  report  is  a  report relating to the commission of an offence given to the police and recorded by it  under Section 154, CrPC  As  observed  by  the  Privy  Council in K.E. v. Khwaja, [AIR 1945 PC 18 : ILR 1945 Lah 1  :  71  IA  203]  the  receipt  and  recording  of information report by the police is not a condition precedent  to  the  setting  in  motion  of  a  criminal investigation.  Nor  does  the  statute  provide  that such information report can only be made by an eye witness. First information report under Section 154 is not even considered a substantive piece of evidence.  It  can  only  be  used  to  corroborate  or contradict  the informant's  evidence in court. But this information when recorded is the basis of the  case  set  up  by  the  informant.  It  is  very useful  if  recorded  before  there  is  time  and opportunity  to  embellish  or  before  the informant's memory fades. Undue unreasonable delay in lodging the FIR,  therefore,  inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on  the  trustworthiness  or  otherwise  of  the prosecution version.  In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question  of  reasonable  time  being  a  matter  for determination  by  the  court  in  each  case.  Mere delay in lodging the  first  information report  with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light  of  the plausibility  of  the explanation forthcoming for such delay accordingly must  fall  for  consideration  on  all  the  facts  and circumstances of a given case.”  

     (emphasis supplied)

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From the observations quoted above, it is also evident that there

is no hard-and-fast rule which can be applied to determine the

effect of delay in filing the FIR, and the Court is duty-bound to

determine whether the explanation afforded is plausible enough

based  on  the  given  facts  and  circumstances  of  each  case.  A

similar view was taken by this Court in Ram Jag v. State of U.P.,

(1974) 4 SCC 201, wherein this Court observed as follows:

“16. … It is true that witnesses cannot be called upon  to  explain  every  hour's  delay  and  a common  sense  view  has  to  be  taken  in ascertaining  whether  the  first  information report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of  suspicion  on  the  seeds  of  the  prosecution case  must  depend  upon  a  variety  of  factors which would vary from case to case. Even a long delay  in  filing  report  of  an  occurrence  can  be condoned if  the witnesses on whose evidence the prosecution relies  have  no  motive  for  implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution.”  

                                           (emphasis supplied)

5. In the matter on hand, the distance of the Police Station

from  the  house  of  the  complainant  is  only  5  kms.   PW-9,

Gangola,  the  Chowkidar  of  the  village  was  present  in  the

village.  Patwari  was  also  present  in  the  village.  From  the

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evidence of the eye witnesses we found that the FIR was lodged

after due consultation and deliberations among the witnesses.

PW-9 admits in Paragraph-7 of his cross-examination that the

FIR came to be lodged by Khilan Singh after due consultation

with him and others in the village.  He admits in the evidence

that the deceased, Devi Singh, was very much alive at least till

8.30 pm on that day and his information was recorded by the

Police prior to the FIR on hand (Ext.D/3).  The FIR lodged by

Devi Singh, which was prior in time and which we feel, would

have been the most important document in this case, has been

suppressed by the prosecution.  The prosecution should have

come  before  the  Court  with  clean  hands.   Since,  Ext.  D/3

lodged at 8.30 pm on the date of the incident was later in point

of time as compared to the suppressed information lodged by

Devi Singh before his death, Ext.D/3 cannot be considered as

the FIR.  At the most, it can be considered as a statement of

Khilan  Singh  recorded  under  Section  161  of  the  Code  of

Criminal Procedure.  It is a clear case of suppression of earliest

information which was of vital importance.  As emphasised by

this Court in Amitbhai Anil Chandra Shah v. Central Bureau of

Investigation, (2013) 6 SCC 348, only the earliest or the first

information in regard to the commission of a cognizable offence

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satisfies  the  requirements  of  Section 154,  and consequently

there cannot be a second FIR. Rather it is absurd or ridiculous

to  call  such  information  as  second  FIR.  In  the  case  of

Subramaniam v. State of T.N., (2009) 14 SCC 415, this Court

observed that if an FIR is filed after recording the statement of

the witnesses, such second information would be inadmissible

in evidence. Moreover, in  Nallabothu Ramulu v. State of A.P.,

(2014)  12  SCC  261,  the  Court  was  of  the  view  that  the

non-treatment of statements of injured witnesses as the first

information cast doubt on the prosecution version.  

Thus,  not  only  was  there  a  delay  in  filing  of  the  FIR

(which remained unexplained) which was taken as the basis of

the  investigation  in  this  case,  but  also  there  was  a  wilful

suppression  of  the  actual  first  information  received  by  the

police.  These  factors  together  cast  grave  doubts  on  the

credibility  of  the  prosecution  version,  and  lead  us  to  the

conclusion  that  there  has  been  an  attempt  to  build  up  a

different  case  for  the  prosecution  and  bring  in  as  many

persons as accused as possible.  

6. Additionally, the so-called eye witnesses to the incident have

described different places as the scene of offence.  None of the eye

witnesses  are  consistent  so  far  as  the  scene  of  offence  is

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concerned.  This means that each of the eye witness must have

allegedly seen the incident at different places and happening in a

different  manner.   The suppression of  the actual  FIR,  coupled

with  the  conflicting  versions  of  the  so-called  eye  witnesses

relating  to  different  scenes  of  offence  and  different  stories

collectively would reveal that the prosecution wanted to suppress

and  has  suppressed  the  real  incident  and  culpability  of  real

culprits.   The origin  and genesis  of  the  prosecution is  clearly

suppressed in the case.   

7. All  the eye witnesses have deposed that 18 accused have

assaulted  the  deceased  mercilessly  by  using  farsi and  lathis.

Curiously,  the  deceased  had  sustained  only  the  following

injuries:  

“(i)  Incised  wound  on  the  left  parietal  region  of skull size 2 ½ x ½ x ½ inches. (ii) incised wound on the right leg size 1 1/3 x 1/3 inches; (iii)  an  abrasion  on  left  forearm  size  1  ½  x  1 inches; and  (iv)  haematoma size 9 x 7 inches”.  

The same is clear from the evidence of the Doctor, PW-25,

who conducted the autopsy.   If  really  18 persons had caused

injuries on the deceased by deadly weapons like farsi, lathis etc.,

certainly  umpteen  injuries  should  have  been  received  by  the

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deceased.  But, except the aforementioned four injuries, no other

injury  has  been found on his  body.   Out  of  the  four  injuries

sustained by the deceased, only one is on a vital portion of the

body, i.e. on the head, i.e. an incised wound on the left parietal

region measuring 2 ½ x ½ x ½ inches.  The other three injuries

are simple in nature.  The Trial Court has disbelieved the version

of the eye witnesses and has acquitted 14 persons out of the 18

accused.  Surprisingly, the Trial Court has equated the number

of accused persons to the number of injuries, inasmuch as it has

found that the existence of four injuries implies the involvement

of four assailants,  which view cannot be sustained.  The Trial

Court  has  also  not  assigned  any  reason  as  to  why  it  has

concluded only against  the four  respondents herein and as to

why  it  has  acquitted  the  remaining  14  accused.  No  specific

acceptable reasons are assigned by the Trial Court, for convicting

four  respondents  herein.   The  evidence  of  the  eye  witnesses

appears  to  be  uniformly  ambiguous  and  highly  vague  with

respect to all the accused.  As mentioned supra, each of the eye

witnesses have deposed about a different scenes of offence and

different stories, though the incident has taken place at only one

place.  

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8. The High Court in its judgment has detailed a number of

contradictions in  the evidence of  the eye witnesses and major

omissions which were overlooked by the Trial Court.  

9. For example, PW-21, the wife of the informant, has deposed

that all the accused persons caused injuries to the deceased Devi

Singh and the complainant Khilan Singh.  However, in the next

paragraph itself, she has deposed that she was inside her house

when the incident took place.  Later she came out of the house

and saw the incident thereafter.  She has denied the suggestion

that the incident occurred inside her house and specified that

she  never  gave  such  a  statement  before  the  Police.   Said

contradiction is marked as Ext.D/11.  Marshalling her evidence,

the High Court, in our considered opinion, rightly disbelieved the

version of PW-21 by describing her as untrustworthy.   

10. PW-18, Prem Singh, has deposed that the informant and the

deceased were lying in an injured condition on the floor at the

door of the house of the informant.  He came to know about the

incident only after he arrived at the house of Khilan Singh and

saw the dead body lying just outside the door.  This is at odds

with the deposition of PW 22, according to whom the incident has

occurred  inside  her  house.   Lastly,  in  Paragraph  8  of  his

evidence, PW -18 has deposed that he did not see the incident

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which  occurred  inside  the  house  of  Khilan  Singh.   Said

contradiction  is  marked  as  Ext.D/10.   The  High  Court  has

meticulously evaluated the evidence of the other eye witnesses,

namely, PW-11, 12, 8 and 22 also.  The contradictory versions of

all the eye witnesses have been highlighted by the High Court,

while coming to its conclusion.  

11. The  sum and  essence  of  the  case  of  the  prosecution  as

found in the charge-sheet was that the incident happened inside

the  house  of  the  complainant  Khilan  Singh.   However,  the

witnesses have tried to improve the case of the prosecution by

deposing  that  the  incident  has  occurred  outside  the  house  of

Khilan Singh and that they have seen the incident.  PW-12 has

gone to an extent of deposing that none of the accused including

the respondents entered the house of Khilan Singh.   

12. Thus, on a re-evaluation of the material on record by us, we

find  that  the  High  Court  being  the  First  Appellate  Court,  by

meticulously scanning all the evidence in great detail, has rightly

concluded that the prosecution has not proved its case beyond

reasonable doubt against the respondents. The evidence of  the

prosecution is full of embellishment, fabrication, distortion and

suppression of true story.

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13. We find that the view taken by the High Court is one of the

possible views in the facts and circumstances of the case.  There

is  no  reason  to  disagree  with  the  reasons  assigned  and  the

conclusions arrived at by the High Court, more particularly when

the evidence of all the eye witnesses is inconsistent, not cogent

and unreliable.  Hence, no interference is called for.   

14. Before parting with the matter, we would also like to observe

that though the Trial Court framed charges against the accused,

it has at the same time committed an error by framing issues for

determination, which is solely in the realm of civil matters. Under

S. 228 of the Code of Criminal Procedure, upon being satisfied of

the  existence  of  ground  for  presuming  that  the  accused  has

committed an offence exclusively triable by the Sessions Court,

the  Sessions  Judge  is  required  to  frame  in  writing  a  charge

against the accused. If the concerned offence is not exclusively

triable by the Sessions Court, the Judge may frame the charge

and transfer the case for trial by the appropriate Magistrate. On

the other hand, framing of issues is required to be done by the

Civil Court at the first hearing of a suit, as detailed in O. XIV, R. 1

of  the  Code  of  Civil  Procedure.  This  has  to  be  done  after

determining the material propositions of fact or law upon which

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the parties are at variance, having gone through the plaint and

written statement, if any.

Thus, there is no scope for framing of issues in a criminal

trial.  Ordinarily,  such  conduct  of  the  Trial  Court  would

necessitate remanding the matter for trial, but given that in the

instant matter, the Court also proceeded to frame charges against

the accused and to give findings on the same in order to record a

conviction, and given that we are inclined to affirm the decision of

the  High  Court  on  merits,  to  set  aside  the  conviction  of  the

respondents, we do not find it necessary to remand the case back

for trial.  

15. The appeal is accordingly dismissed.   

…………………………………….….J. [N.V. RAMANA]

………………………………………..J. [MOHAN M. SHANTANAGOUDAR]

New Delhi; September 05, 2018.