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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.106     OF     2010   

Bable @ Gurdeep Singh … Appellant

Versus

State of Chattisgarh Tr.P.S.O.P. Kursipur   … Respondent

J     U     D     G     M     E     N     T   

Swatanter     Kumar,     J  .

1. The present appeal is directed against the judgment of the  

High Court of Judicature at Chattisgarh at Bilaspur dated 15th  

November, 2006 wherein the High Court maintained the  

judgment of conviction and order of sentence passed by the  

learned Fourth Additional Sessions Judge, Durg, Chattisgarh,  

convicting the appellants for an offence under Section 302 read  

with Section 34 of the Indian Penal Code, 1860 (for short ‘IPC’)  

and awarding life sentence to them.  Though there were three  

accused before the trial court, the present appeal has been  

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preferred only by appellant/accused No.1, Bable @ Gurdeep  

Singh.  While impugning the judgment under appeal, the learned  

counsel appearing for the appellant has, inter alia, but primarily  

raised the following arguments:

1.  The injuries found on the person of the accused have not been  

explained by the prosecution.  The deceased having suffered  

serious injuries that are stated to have been inflicted by the  

accused, could not have been in a condition to inflict any  

injuries upon the person of the accused.  This leads to the  

conclusion that the accused had been assaulted by the  

deceased before the deceased himself suffered the injury.  The  

injuries were admittedly found on the person of the accused.  

The prosecution has failed to explain such injuries.  This  

failure on the part of the prosecution renders the story of the  

prosecution not only improbable but unbelievable as well.

2. Assuming, though not admitting, that the incident has been  

proved, the accused was entitled to the right to private defence  

as he was attacked and he caused the injuries in the process of  

protecting himself.  Thus, the contention is that the  

accused/appellant cannot be convicted under Section 302 IPC  

and his conviction under Section 302/34 IPC cannot stand the  

scrutiny of law.   

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3. Further the appellant states that the informant Tariq Shakil,  

PW1, had turned hostile.  The FIR not being a substantive  

piece of evidence, would discredit the entire case of the  

prosecution.  The Courts, in the judgments under appeal, have  

failed to appreciate the evidence in its proper perspective and  

hence the judgments are liable to be set aside.   

4. Lastly, the dying declaration is not corroborated by other  

prosecution witnesses and no details have been furnished  

therein.  As such the Courts could not have relied upon the  

said dying declaration.   

2. Before we proceed to deliberate upon the legal and factual  

aspects of the case with reference to the arguments advanced, it  

would be necessary to refer to the case of the prosecution in brief.  

3. On 14th May, 1999 at about 10.15 p.m., when Tariq Shakil,  

PW1, was sitting in his S.T.D.-P.C.O. shop situated at New  

Kursipur, Gurunanak Chowk, one Guddu @ Jiten Soni, PW12,  

came there and informed PW1 that the accused Sardar Bable is  

quarrelling with Ishwari Verma in front of his shop.  Upon  

hearing this, PW1 closed his shop and went along with PW12 to  

the place of occurrence.  The accused Bable was carrying a sword  

in his hand and was running towards them.  Being frightened,  

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both of them went towards a street.  After sometime, there was a  

noise that the accused Bable had caused injuries to Ishwari  

Verma and the said victim was lying in injured condition.  He was  

removed to BSP Hospital, Sector 9, by his uncle Balwant Verma,  

PW14, where he was admitted.  Dr. A.D. Banerjee, PW2, had  

examined him and declared him brought dead.  A written report  

in this regard was prepared being Ex.P5. The matter was reported  

to Bhilai City Police Station.  Even a telephonic message was sent.  

Sub-Inspector, Suresh Bhagat, PW10, posted at that Police  

Station registered the case under Section 174 Cr.P.C., Ex.P-22.  

On the same day at about 12.15 a.m. in the night, PW1 got the  

First Information Report (FIR), Ext.P-1, of the incident registered  

at Police Station Kursipur and a case under Section 302 IPC was  

registered.  The Investigating Officer, Sub-Inspector P.N. Singh,  

PW13 took up the investigation and went to the site.  He prepared  

the site plan, Ex.P14, seized blood-stained earth, plain earth and  

a piece of chain of the watch and for that he prepared a seizure  

memo Ex.P-20.  He also prepared the inquest report vide Ex.P4,  

in presence of the Panchas.  The post mortem examination of the  

body of the deceased was performed by Dr. S.R. Surendra, PW5  

at 11.30 a.m. on 15th May, 1999.  The post mortem report was  

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submitted vide Ext.P-8 which noticed the following injuries on the  

body of the deceased: -

“1.  Incised wound 5 c.m. x ½ c.m. upto bone  deep red colour longitudinal on anterior its  and middle of scalp.

2. Incised wound 8 c.m. x 1 c.m. up to bone  deep red colour.  Margin everted oblique  anterior and right side of scalp.

3. Incised wound 3 c.m. x ¼ c.m. ¼ c.m.  above left ear.

4. An abrasion 9 c.m. x ½ c.m. long below left  ear.

5. An abrasion 6 c.m. x ½ c.m. neck colored  below the first wound.

6. Incised wound 5 c.m. x ½ c.m. x ½ c.m. on  left shoulder laterally.

7. Incised wound 1 c.m. x ½ c.m. x ½ c.m. on  left shoulder anteriority.

8. Amputation middle finger from terminal  phalages.

9. Ring finger also cut from terminal phalages  from palmer aspect only.

10. Incised wound 8 c.m. x ½ c.m. x ½ c.m.  red coloured on upper part and lateral  surface of right arm.

11. Abrasion 2 c.m. x 2 c.m. red coloured on  lower part and lateral surface of right  upper arm.

12. Incised wound 7 c.m. x ½ c.m. x ½ c.m.  lateral surface of elbow.

13. Incised wound 15 c.m. x 4 c.m. x 3 c.m.  deed exposed tendon and blood vessel  

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visible through wound.  On lower part and  medial surface of right fore arm.

14. Incised wound of 4 c.m. x 4 c.m. between  right hand thumb and index finger.  Bone  of index finger visible through the wounds.

15. Perforated wound directed from behind,  anteno laterally, 4 c.m. above the left knee  joint.  Wound entry cut of post medially  size 4 c.m. x 3 c.m. oblique.  On dissection  popliteal artery is found cut.”

4. The cause of death has been recorded as unconsciousness,  

which occurred prior to death and had arisen due to the injuries  

caused by some pointed sharp edged weapon.   

5. The accused were arrested on the basis of their disclosure  

statements Exts.P-15, P-16 and P-26.  Weapons used in the crime  

were seized and seizure memo was prepared vide Exts.P-17, P-18  

and P-27. Blood stained clothes were recovered from the accused  

Bable and seizure memo Ext.P-19 was prepared.  Sealed clothes  

of the deceased received from the Hospital were seized and  

seizure memo was prepared vide Ext.P.29.  The seized articles  

were sent for chemical examination.   

6. It is further the case of the prosecution that the people  

around the place of the incident had seen the occurrence.  

Immediately thereafter, sister-in-law of the deceased, Janki,  

PW11 and uncle Balwant PW14 had reached the place of the  

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incident.  Balwant, PW14, had enquired from the deceased as to  

who were the assailants.  After he gave the names, the accused  

persons were arrested and they made disclosure statements, as  

stated above.   

7. It is noteworthy that the appellant Bable @ Gurdeep Singh  

had stated that on the date of incident, he was returning after  

collecting money for the milk supplied to the Thelawala at about  

1-1.30 a.m. in the night.  He saw Ishwari, Dalip, Dimple and Bage  

quarrelling at Gurunanak Chowk.  He enquired from Ishwari (the  

deceased), who was his friend, as to what had happened.  

Ishwari, without any provocation, abused him and inflicted injury  

on his head with the sword that he was carrying.  Thereupon, the  

accused ran away.  Dalip and Prakash saw him running away.  

After some time of leaving the place, he lodged a police report of  

this incident giving details of the injuries that he had suffered  

and, in fact, he was medically treated and five stitches were put  

on his head.  According to him, he had been falsely implicated in  

the present case.   

8. The accused persons faced the trial and the learned Trial  

Court, vide its detailed judgment dated 27th February, 2001 held  

all the accused persons guilty of an offence under Section 302  

read with Section 34 IPC for causing death of the deceased in  

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furtherance of their common intention and sentenced them to  

undergo life imprisonment.  Upon appeal by the accused persons,  

the High Court came to the conclusion that the oral dying  

declaration was not corroborated by the FIR as the names of two  

accused, namely, Pappi alias Arjun Singh and Vikky alias Vikram  

were not mentioned in the latter and held that there was no legal  

and clinching evidence to implicate these two accused persons  

and hence the Court acquitted both of them.  In relation to Bable  

alias Gurdeep Singh, the High Court sustained the findings,  

judgment of conviction and order of sentence passed by the Trial  

Court.  Legality and correctness of this judgment of the High  

Court dated 15th November, 2006 has been assailed in the  

present appeal.   

9. Reverting to the submissions made on behalf of the  

appellant, we may refer to the fact that the FIR had been lodged  

upon the statement of PW1.  PW1 did not completely support the  

case of the prosecution and with the permission of the Court he  

was declared hostile.  The contention is that the case of the  

present appellant would also stand equated to the case of the two  

acquitted accused persons and the High Court has fallen in error  

of law in not acquitting the accused-appellant as well.  It cannot  

be denied that the FIR Ext.P-1 was registered upon the statement  

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of PW1 and he himself has not supported the case of the  

prosecution, which creates a doubt in the case of the prosecution.  

10. Once registration of the FIR is proved by the Police and the  

same is accepted on record by the Court and the prosecution  

establishes its case beyond reasonable doubt by other admissible,  

cogent and relevant evidence, it will be impermissible for the  

Court to ignore the evidentiary value of the FIR.  The FIR, Ext. P1,  

has duly been proved by the statement of PW10, Sub-Inspector  

Suresh Bhagat.  According to him, he had registered the FIR upon  

the statement of PW1 and it was duly signed by him.  The FIR  

was registered and duly formed part of the records of the police  

station which were maintained in normal course of its business  

and investigation.  Thus, in any case, it is a settled proposition of  

law that the FIR by itself is not a substantive piece of evidence  

but it certainly is a relevant circumstance of the evidence  

produced by the Investigating Agency.  Merely because PW1 had  

turned hostile, it cannot be said that the FIR would lose all its  

relevancy and cannot be looked into for any purpose.    In the  

present case, PW11 and PW14 are the two persons who had  

reached the place of incident immediately after the occurrence.  

They were instantaneously told by the deceased as to who the  

assailants were.  They have substantially supported what had  

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been recorded in the FIR which further stands corroborated by  

the medical evidence and the statements of other witnesses.  In  

these circumstances, we cannot discredit the statements of PW11  

and PW14 merely because PW1 has turned hostile.  Besides this,  

in furtherance to the statements of the accused persons, recovery  

of the weapons used in the crime was effected.   

11. The dying declaration made by the deceased to PW14 cannot  

be lost sight of by the Court.  To the rule of inadmissibility of  

hearsay evidence, oral dying declaration is an exception.  The  

dying declaration in this case is reliable, cogent and explains the  

events that had happned in their normal course which was not  

only a mere possibility but leaves no doubt that such events  

actually happened as established by the prosecution.  Once there  

exists reliable, cogent and credible evidence against one of the  

accused, the mere acquittal of other accused will not frustrate the  

case of the prosecution.  Where the High Court, exercising its  

judicial discretion ultra-cautiously, acquitted the unnamed  

accused in the FIR, there the High Court for valid reasons held  

the present appellant guilty of the offence.  The High Court had  

recorded reasons in support of both these conclusions.  [Ref.  

Krishan Lal v. State of Haryana [(1980) 3 SCC 159].   

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12. Thus, we find that the present appellant cannot derive any  

benefit from the acquittal of the two other accused persons, with  

which this Court is not concerned as the State has not preferred  

any appeal against the decision of the High Court.  Moreover, the  

case of the prosecution is not merely based on the dying  

declaration made by the deceased to PW14 but there also exist  

other circumstances which support the view in favour of guilt of  

the appellant, i.e., the disclosure made by the appellant and the  

consequent recovery of the weapons used in the crime, the  

statement of Investigating Officer, PW13, the statement of the  

doctor, PW5, and, in fact, the own version of the accused in  

relation to the incident.   

13. In the present case, the accused had led defence before the  

Trial Court and examined as many as four witnesses in support  

thereof.  DW4, Head Constable Manharan Yadav stated that he  

was posted as a Constable at PS Kursipur outpost on 14th May,  

1999.  At about 22:45 hrs., the appellant Bable @ Gurdeep Singh  

appeared and reported orally that while he was going in a  

drunkard condition behind the Gurdwara, Ishwari met him on  

the way who posed to be a dada.  He along with Manpreet, who  

was armed with lathi, caused injuries to both of his hands, head  

and then he had come to lodge a report.  In furtherance to this  

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report, the accused was examined by DW1, Dr. Praveen Chandra  

Agarwal, who noticed six injuries on the person of the accused  

and found that injury Nos.1 to 3 had been caused by some hard  

and sharp-edged weapon and injury Nos.4 to 6 were caused by  

some hard and blunt weapon and all the injuries were caused  

within 24 hours.  The appellant is also stated to have been  

smelling of liquor at that time but was not intoxicated.  Further,  

injury Nos.2 to 6 were simple in nature and for injury No.1, X-ray  

of the skull, was advised but that also was not found to be  

grievous.  In view of the nature of injuries suffered, the story  

advanced by the accused can hardly be believed.  Where the  

deceased suffered fatal injuries, the accused despite having been  

assaulted by two people with lathi and weapon just suffered  

simple injuries. Thus, the possibility of the injuries being self-

inflicted or having been suffered in some other way cannot be  

ruled out.    

14. The legislative scheme contained under the provisions of  

Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) is  

to put to the accused all the incriminating material against him  

and it is equally important to provide an opportunity to the  

accused to state his case.  It is the option of the accused whether  

to remain silent or to provide answer to the questions asked by  

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the Court.  Once the accused opts to give answers and, in fact,  

puts forward his own defence or the events as they occurred, then  

the accused is bound by such statement and the Court is at  

liberty to examine it in light of the evidence produced on record.  

15. In the present case, the accused had opted to give an  

explanation, as aforenoticed.  It was for the accused to satisfy the  

Court that his explanation was true and correct.  Both the Courts  

below have concurrently rejected the explanation offered by the  

accused.  On the contrary, they have found the said explanation  

to be factually incorrect.  It was for the prosecution to explain the  

injuries on the person of the appellant as to when, how and by  

whom they were inflicted as also the fact whether they were  

inflicted during the occurrence in question or elsewhere?  Of  

course, the prosecution has not rendered any explanation as to  

how the appellant had suffered these injuries but that by itself is  

not sufficient to believe that the appellant is innocent and the  

explanation rendered by him is established ipso facto.   The onus  

is still on the appellant-accused to prove that his explanation is  

correct and in accordance with law.  In the present case, the  

accused has stated that the deceased was carrying a sword and  

when he enquired from him as to why the other persons were  

quarrelling with and beating him, the deceased had assaulted  

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him with the sword.  Firstly, if a person is assaulted with a  

sword, there is hardly any likelihood of him to suffer injuries of  

the kind that the appellant had suffered; secondly, in the FIR,  

Ext.D-2, which he had got registered, it is specifically stated that  

the injuries were caused by lathi by the deceased.  Thus, there is  

apparent contradiction of serious nature (as to the weapon used  

in committing the said assault against the appellant).  Thirdly,  

the doctor (DW1) who had examined him, in his report had  

nowhere noticed as to how the accused had suffered those  

injuries.  Even in his explanation under Section 313 Cr.P.C., the  

appellant has not stated that he had consumed liquor whereas,  

according to the doctor, the appellant was smelling of liquor  

though he was not intoxicated.  Lastly, the explanation offered by  

the appellant seems to be very unnatural and opposed to normal  

behavior of a human being.  The appellant claims to be a friend of  

the deceased and that he had asked the deceased as to why  

others were quarrelling with him and had intended to help the  

deceased.  If that be so, no person, in his senses, is likely to  

cause injuries to a well wisher, that too, with a sword.  All these  

circumstances show that the explanation offered by the accused  

is neither plausible nor true.

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16. But, because of lodging of FIR, Ext D2, and his statement  

under Section 313 of the Cr.P.C., one fact that completely stands  

established and is undisputable is that the appellant was present  

at the place of occurrence and also that he had a fight with the  

deceased.  Once these two circumstances are admitted, they fully  

provide corroboration to the dying declaration, the statements of  

PW11 and PW14 as also the other material evidence led by the  

prosecution.  If the appellant was carrying a sword and others  

were carrying lathis, it is not understable as to how could the  

deceased suffer as many as 15 injuries including the incised  

wound, abrasions, amputation of middle finger from terminal  

phalages and other serious injuries and the appellant merely  

suffered six simple injuries.  This itself belies the stand taken by  

the appellant.  In any case, the deceased could not have caused  

injuries to any other person as in consequence of the assault  

upon himself, he would have had no strength left to cause any  

injury to others.  Strangely, the accused denied all other  

questions as ‘maloom nahin’  (don’t know) or ‘incorrect’  and gave  

explanation which is not worthy of any credence.

17. For the reasons aforestated, we find no merit in the present  

appeal and the same is dismissed.

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.…................................J.  [Swatanter Kumar]

  .…................................J.                 [Ranjan Gogoi]

New Delhi; July 10, 2012.

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