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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1275 OF 2009

Jeewan & Ors. …  Appellant

Versus

State of Uttarakhand … 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 Uttarakhand at Nainital dated 14th October, 2008  

vide which the High Court confirmed the judgment of the trial  

court  and  dismissed  the  appeal  preferred  by  the  accused  

against their conviction and order of sentence.

2. The conviction of the accused is based upon the version of  

the  prosecution  that  on  12th March,  1991 at  about  10  p.m.,  

complainant Bhupal Chandra, who later came to be examined  

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as PW1, along with his brother Devendra Lal after attending the  

marriage ceremony of one Pooran Chandra in Village Dhapla  

within the limits of  Police Station Kaladhungi, District Nainital,  

were returning home.  On their way, they found the accused  

Jeewan  Ram,  Dalip  and  Kamal,  all  residents  of  their  village,  

standing there.  Jeewan was carrying a knife while Kamal and  

Dalip  were  armed  with  sticks  (danda).   Accused  Kamal  and  

Dalip  caught  hold  of  Devendra  while  Jeewan  struck  several  

blows with knife on his chest and abdomen.   PW1 was carrying  

torch and saw the occurrence in that light.   Two more persons,  

Rajendra Singh, PW2 and Prem Ram, PW3, who after attending  

the marriage were taking rest in the nearby house of Shyam  

Lal, upon hearing the alarm raised by Devendra Lal, reached  

the place of occurrence.  In the light of the torches they were  

carrying,  they  witnessed  the  accused  committing  the  crime.  

Upon hearing the alarm raised by Devendra, these witnesses  

saw the accused persons running away, however, they did not  

chase them out of fear.

3. Devendra  Lal,  was  immediately  taken  to  a  hospital  in  

Haldwani where he succumbed to his injuries.   At about 8.45  

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a.m.,  on 13th March,  1991 Bhupal  Chandra,  PW1,  lodged the  

First Information Report (for short, the ‘FIR’) against the three  

accused persons at Police Station Kaladhungi and a crime case  

No. 68 of 1991 was accordingly registered under Section 302 of  

the Indian Penal Code (for short, the ‘IPC’) against all the three  

accused persons.   In the First Information Report, Ext. A1, the  

complainant stated that the motive for commission of crime by  

the  accused  was  previous  enmity  between  the  parties.  

According  to  him,  during  Deepawali  festival,  the  accused  

persons  along  with  Devendra  Lal  were  playing  cards  and  

gambling,  when  they  picked  up  a  quarrel  and  there  was  a  

scuffle between the parties.    The scuffle did not aggravate  

into any serious situation because of intervention by Sabhapati,  

the  head-man  of  the  village.    Though,  he  got  the  matter  

compromised, the three accused continued to harbour enmity  

and even threatened Devendra Lal to see him later.

4. After  Devendra  Lal  succumbed  to  his  injuries  in  the  

hospital, a report was sent to the police.   Sub Inspector Daya  

Ram Singh, PW8 came to the civil hospital, Haldwani, took up  

the charge of the dead body and prepared the inquest report,  

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Ext. A6, whereafter the body was handed over to Dr. T.C. Pant,  

PW7 with a request to perform post-mortem upon the body of  

the deceased.    The doctor  performed the post-mortem and  

prepared  a  report,  Ext.  A7,  in  which  he  noticed  the  injuries  

upon the body of the deceased as well as the cause of death,  

which reads as under:-

“i) P.W. 1.2 cm X ½ cm on front of sterum, 7  cm medial left nipple.  On opening the wound  it is cavity deep piercing the sterum.

ii) P.W. 8 cm X 3 cm X cavity deep, on right  side of chest, 3 cms towards right nipple.   On  opening the wond right lobe of liver is cut.

iii) P.W. 15 cm X 5 cm X cavity deep.   Medial  end  of  wound  touching  6th thoracic  spine  extending  to  right  side  of  back  of  chest.  Right lung beneath the injury is cut.

iv)  Punctured wound 4 cm x 2 cm x cavity  deep, 3 cm above from the left ant sup iliac  spine on left lat side of abdomen.  Loops of  intestine coming out.

v) P.W. 3 cm X 1 ½ cm X cavity deep about 3  cm  from  left  nipple  underneath  the  injury.  Left lung is cut.

vi) I.W. 4 cm X 2 cm X muscle deep on medial  side of right knee about 2 ½ cm from upper  border of patella.

vii) I.W. 3 cm X 1½ cm X muscle deep, about  2 cm lateral to left ant sup iliac spine.”

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5. PW9,  Sub  Inspector  Ram  Baran  Ram,  interrogated  the  

witnesses,  inspected  the  torches  of  the  complainant  and  

witnesses, prepared memorandums, Ext. A2 to A4, the site plan  

of  the  place  of  occurrence,  Ext.  A10,  arrested  the  accused  

persons on 15th March, 1991 and recovered the knife used in  

the  crime upon the  statement  of  Jeewan vide  memorandum  

Ext.  A-12.    The Report  was filed in  the court  of  competent  

jurisdiction.   The accused persons were committed to the court  

of III Additional Sessions Judge, Nainital and were tried under  

Section  302  IPC  read  with  Section  34  IPC,  the  offence  with  

which  they  were  charged.  The  learned  trial  court  vide  its  

judgment dated 25th February, 1994 formed the view that the  

prosecution had been able to prove its case beyond reasonable  

doubt  and  therefore  convicted  the  accused  persons  of  

committing an offence under Section 302 read with Section 34  

IPC and awarded them the following sentence :-                     

“On the basis of the above evidence and  circumstances,  I  arrive  at  the  conclusion  that  the  prosecution  has  succeeded  in  proving  the  charges  levelled  by  them.  Thus,  I  find the  accused persons Jeevan,  Kamal and Dalip guilty for the offence of  murder of Devender on dated 12.03.1991  

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at  10.00  p.m.  in  village  Dhapla,  Police  Station Kaladungi.

Sd/- (Bijender Singh)

Third Addl. Sessions Judge, Nainital, Camp at Haldwani

Dated: 25.02.1994

O R D E R  

The  accused  persons  Jeevan,  Kamal  and Dalip are found guilty for the offence  under  section  302  read  with  section  34  I.P.C.   They  are  on  bail.   Their  Personal  Bonds  and Bail  Bonds  are  cancelled  and  the sureties are discharged.

They  be  taken  in  custody  for  undergoing  sentence  to  awarded  after  hearing them on the quantum of sentence.

Sd/- (Bijender Singh)

Third Addl. Sessions Judge, Nainital, Camp at Haldwani

Dated: 25.02.1994

I  have  heard  the  accused  persons  Jeevan, Kamal and Dalip and their learned  counsel  Shri  Shyam  Singh  Mehra,  Advocate  on  the  quantum  of  sentence,  who has stated that the accused persons  are  innocent,  but  I  have  convicted  them  after analyzing the evidence.”

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6. Aggrieved from the judgment of conviction and order of  

sentence,  the  accused  persons  preferred  a  common  appeal  

before  the  High  Court  which  came  to  be  dismissed  vide  

judgment of the High Court dated 14th October, 2008 giving rise  

to the present appeal.

7. It is contended on behalf of the appellants/accused that :  

(a) the presence of PW2 and PW3 at the place of occurrence  

is very doubtful on the one hand, while on the other, as  

per the case of prosecution, the incident occurred near  

the place of marriage where, obviously, a large number of  

persons must be present and non-production of any such  

person from the marriage party raises doubt towards the  

case of prosecution.

(b) there  is  inordinate  delay  in  lodging  the  FIR.   The  

occurrence took place at about 10.00 p.m. on 12th March,  

1991 while the First Information Report Ext.A1 was lodged  

at  about  8.45  a.m.  on  13th March,  1991.    Thus,  the  

accused are entitled to the benefit of doubt.

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(c) The Inquest Report is  in contradiction with the medical  

evidence and the ocular evidence of the prosecution and  

there  being  material  contradictions,  the  appellant  is  

entitled to the benefit of acquittal.

(d) The accused persons had not been given proper hearing  

before the High Court and their  right  to  a fair  defence  

stood denied.

8. Amongst the above contentions, we may deal with the last  

argument raised on behalf of the appellant at the threshold.  

There  is  no  merit  in  this  submission  that  the  appellant  was  

denied proper and fair  hearing before the High Court.    The  

accused  had  filed  an  appeal  before  the  High  Court  through  

private counsel Mr. V.S. Pal and Mr. M.S. Pal, advocates.   These  

advocates appeared and took several adjournments before the  

High  Court.    Thereafter  they  did  not  appear  in  that  court.  

Then,  Advocate  Shri  D.N.  Sharma  appearing  for  appellants  

stated that he had no instructions in the matter.   The High  

Court having been left with no alternative but to proceed with  

the matter and keeping in view the judgment of this Court in  

the case of  Dharam Pal  v.  State of  U.P. [AIR 2008 SC 920],  

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heard  the  appeal  with  the  assistance  of  amicus  curiae  

appointed by the court.   Having heard both the amicus and the  

State counsel, the Court then decided the appeal.   The appeal  

was decided by the court in accordance with law.   These facts  

have also  been  recorded  by  the  High  Court  in  its  judgment  

under  appeal.    In  the  grounds  of  appeal  raised  by  the  

appellant, there is no challenge to these facts.   Thus, in view of  

the  undisputed  facts,  there  is  no  occasion  for  this  Court  to  

return a finding that the appellant had no proper opportunity of  

hearing  before  the  High  Court.     The  contention  that  the  

amicus curiae did not raise all the relevant contentions before  

the High Court is without any substance.    It is not for the Court  

to  require  a  counsel,  including  Amicus  Curiae, to  raise  a  

submission, the submission may vary from counsel to counsel.  

The duty of the court was only to ensure that the accused was  

not held guilty without affording him an opportunity of hearing  

in  accordance  with  law.    If  the  counsel  appearing  for  the  

appellants  pleaded no  instructions,  no  fault  of  procedural  or  

substantial  violation  could  be  attributed  to  the  court.    The  

blame  for  such  attitude  would  lie  on  none  else  but  the  

appellants or the persons pursuing appeal on their behalf.   The  

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High Court took every precaution and ensured proper hearing  

to  the  appellants  before  it  passed  the  impugned  judgment.  

Thus, we have no hesitation in rejecting this contention.

9. The remaining three contentions raised on behalf of the  

appellant can be discussed together in order to avoid repetitive  

discussion,  as  they  are  inter-linked  with  appreciation  of  

evidence.     

10. According to the prosecution, the deceased Devendra was  

murdered  by  three  accused  to  which  his  brother  Bhupal  

Chandra, PW1, Rajendra Singh, PW2 and Prem Ram, PW3 were  

eye-witnesses.  They were coming from the marriage and in  

torch light they saw the accused persons committing the crime.  

PW1 has fully supported the case of the prosecution and has  

stated that Jeewan was carrying a knife and Kamal and Dalip  

were carrying Dandas.   There was a heated exchange of words  

between them and thereafter Kamal caught hold of Devendra  

while  Jeewan stabbed three to four  times in  the stomach of  

Devendra.   On  seeing  this,  PW1  raised  an  alarm  and  then  

witnesses Rajendra Singh and Prem Ram came to the place of  

occurrence.  Upon their coming, the accused persons ran away.

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11. The  deceased  was  taken  to  the  hospital  where  he  

collapsed.    In  his  cross-examination,  PW1  also  stated  that  

crime scene was about 100 steps away from the venue of the  

marriage  of  Pooran  Chandra  and  there  was  no  light  in  the  

passage.

12. According to PW2, Rajendra Singh, they were sitting in the  

house  of  Shyam Lal  and talking  when they  heard  the  noise  

coming from the hut of Nathu Ram.  PW2 and PW3 thereafter  

reached the  place  of  occurrence.     In  the  torch  light,  they  

claimed  to  have  seen  the  accused  persons  committing  the  

crime including the fact that Jeewan was carrying knife and that  

Jeewan stabbed the deceased.   According to him, when they  

challenged  the  accused  persons,  the  accused  persons  ran  

away.  On similar lines is the statement of PW3.    

13. The first question that arises for consideration is whether  

the presence of these three witnesses in and around the place  

of occurrence is so very doubtful that their statement should be  

disbelieved.   The  answer  to  this  question  has  to  be  in  the  

negative.    It is an undisputed case before us that there was a  

marriage  in  the  house  of  Pooran  Chandra  and  all  the  three  

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witnesses  had  gone  to  attend  the  marriage.   PW1  was  

accompanying the deceased.   When they were returning from  

the marriage,  the incident occurred near  the place of  Nathu  

Ram.   It is not unbelievable that village persons would attend a  

marriage and sit down at somebody’s place to chat.  Thus, the  

presence of PW2 and PW3 at the place of Shyam Lal can hardly  

be doubtful.   PW1 would be accompanying the deceased, as he  

was  his  brother.    We  are  unable  to  see  any  merit  in  the  

contention and the reasons for which the court can come to the  

conclusion that the presence of these witnesses at the place of  

occurrence was doubtful.

14. Heavy reliance was placed upon a discrepancy appearing  

in  the  statement  of  PW1  and  PW2.     PW1  had  stated  as  

follows:-

“....Devendra  was  caught  by  Kamal  and  Devendra  and  Jeevan  stabbed  three  to  four  times in  the stomach of  Devendra.    I  raised  alarm  and  then  witnesses  Prem  Ram  and  Rajendra Singh came there.   Accused persons  ran away when they were challenged.”  

While PW2 stated as follows:-

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“...Right then we heard the noise coming from  the  hut  of  Nathu  Ram  and  then  I  and  Prem  Singh reached at the crime scene.   We were  carrying  torch  and  we  saw  in  its  light  that  Jeevan was carrying knife and Kamal and Dalip  were carrying Danda and they were attacking  with them on Devendra.   Jeevan stabbed him  and Kamal and Dilip caught his hold.   When we  challenged  them,  accused  persons  ran  away.  Devendra fell down on the surface.”

15. The  contention  is  that  PW2  and  PW3  never  saw  the  

occurrence  as  according  to  PW1,  it  was  after  Jeewan  had  

stabbed the deceased three-four times in the stomach that he  

raised alarm.   While according to PW2, in the torch light they  

had seen Jeewan stabbing the deceased.  This cannot be called  

a discrepancy of any material consequence.  Firstly, PW1 had  

categorically stated that he had raised the alarm upon which  

Prem Ram and Rajendra Singh reached at the spot.   Secondly,  

PW2 and PW3 were in the house of Shyam Lal which was very  

close by.   Listening to the hue and cry, they had come to the  

house of Nathu Ram and in the torch light had seen Jeewan  

stabbing and Kamal and Dalip holding the deceased.

16. The court cannot lose sight of the fact that the statement  

of  these witnesses  had been recorded more than two years  

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subsequent  to  the  date  of  occurrence.    To  expect  the  

witnesses to depose with arithmetical exactitude would not be  

proper application of rule of evidence, keeping in view the facts  

and circumstances of the case.

17. It  is  but  natural  that  it  would  take a  little  time for  the  

offender to stab a person three to four times.  Natural conduct  

of PW1 would be to raise alarm, which he did.   Immediately  

then,  PW2  and  PW3  came  and  saw  the  deceased  being  

stabbed.   They might not have seen all the stabbings, but even  

last stabbing by Jeewan could be viewed by them as they were  

carrying torches and had seen the accused persons.   They not  

only saw the occurrence, but PW2 and PW3 also challenged the  

accused persons upon which they ran away.   Thus, PW2 and  

PW3 had sufficient time to see, if not the entire occurrence, at  

least a part thereof as well as the participation of the accused  

persons in committing the murder of the deceased.

18. Another discrepancy that is sought to be highlighted on  

behalf of the appellant is that in the inquest report, Ext. A6, the  

name of Kamal has been recorded, stating that he committed  

the murder of the deceased by stabbing him.   While according  

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to the witnesses giving the ocular version, it was Jeewan who  

had given stab injuries to the deceased.    It is to be noticed  

that Ext.  A6 is an inquest report prepared by S.I.  Daya Ram  

Singh in which various factors were recorded and then it was an  

impression that was formed by the person preparing it.   The  

expression used in Ext. A6 is Malum.  This could be a plausible  

error  that  crept  in  Ext.  A6.    It  records  the  name  of  the  

witnesses, name of the Panchas and it appears that names of  

the other accused have not been stated.   The object of the  

inquest report was more towards recording the status of the  

body, the articles on the body of the deceased and the situation  

existing at the spot.    This error cannot frustrate the case of  

the  prosecution  which  stands  fully  established  by  the  

statements of PW1, PW2 and PW3.

19. At this stage, it can be very usefully noticed that PW1 is  

even a Panch witness to Ext.A6 which clearly establishes his  

presence at the place of occurrence.   The medical report and  

the injuries afore-recorded and the statement of PW7, Dr. T.C.  

Pant fully support the case of the prosecution.   In the post-

mortem report, he noticed as many as five punctured wounds  

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i.e. on the left nipple, towards right nipple on the right side of  

the  chest  cutting  right  lobe  of  the  liver,  punctured  wound  

touching 6th thoracic spine extending to right side of back of  

chest,  punctured  wound  cavity  deep  anterior  superior  illiac  

spine on the left lateral side of abdomen and punctured wound  

cavity deep underneath the first injury.   Besides this, two more  

incised wounds were noticed at the right knee and the spine  

region.

20. This  medical  evidence  clearly  supports  the  case  of  the  

prosecution that the deceased was stabbed three to four times  

by  the  accused  persons.    They  had  participated  with  the  

common intention in committing the murder of the deceased.  

While Kamal caught hold of the deceased Jeewan had stabbed  

him and Dalip also participated in the commission of the crime.  

The cumulative effect of the oral and documentary evidence  

was that all the three accused had been found guilty of offence  

under Section 302 read with Section 34 IPC and punished with  

imprisonment for life.

21. Now, let us examine the law in relation to discrepancies.  

Discrepancy has to be material and seriously affecting the case  

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of the prosecution.  Every minor and immaterial  discrepancy  

would not prove fatal to the case of the prosecution.   The Court  

has  to  keep  in  mind  that  evidence  is  recorded  after  years  

together  and  to  expect  the  witnesses  to  give  a  minute  to  

minute  account  of  the  occurrence  with  perfection  and  

exactitude would not be a just and fair rule of evidence.   The  

law  in  this  regard  is  well  settled.    Even  an  omission  or  

discrepancy in the inquest report may not be fatal to the case  

of  the  prosecution.    The Court  would  have to  examine the  

entire case and discuss the prosecution evidence in its entirety  

to examine the real impact of a material contradiction upon the  

case  of  the  prosecution.   Trustworthy  evidence  cannot  be  

rejected on fanciful  ground or treated to be in the nature of  

conjectures.  In this regard, reference can be made to the case  

of Brahm Swaroop and Anr. v. State of Uttar Pradesh  [(2011) 6  

SCC 288], where the Court held as under:-

“10. Omissions in the inquest report are not   sufficient to put the prosecution out of court.  The basic purpose of holding an inquest is to  report regarding the apparent cause of death,  namely,  whether  it  is  suicidal,  homicidal,  accidental  or  by  some  machinery,  etc.  It  is,  therefore, not necessary to enter all the details  of  the  overt  acts  in  the  inquest  report.  

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Evidence of eyewitnesses cannot be discarded  if  their  names  do  not  figure  in  the  inquest  report prepared at the earliest point of time.  The  inquest  report  cannot  be  treated  as  substantive evidence but may be utilised for  contradicting  the  witnesses  of  inquest.  (See  Pedda Narayana v. State of A.P., Khujji v. State  of M.P.,  George v. State of Kerala,  Sk. Ayub v.  State of Maharashtra4,  Suresh Rai v.  State of  Bihar, Amar Singh v. Balwinder Singh6, Radha  Mohan  Singh v.  State  of  U.P.7 and  Aqeel  Ahmad v. State of U.P.8)

11. In  Radha  Mohan  Singh,  a  three-Judge  Bench of this Court held: (SCC p. 460, para 11)

“11.  …  No  argument  on  the  basis  of  an  alleged  discrepancy,  overwriting,  omission or  contradiction  in  the  inquest  report can  be  entertained unless the attention of the author  thereof  is  drawn  to  the  said  fact  and  he  is  given  an  opportunity  to  explain  when  he  is  examined as a witness in court.”

(emphasis added)

12. Even where the attention of the author of  the  inquest  is  drawn  to  the  alleged  discrepancy,  overwriting,  omission  or  contradiction  in  the  inquest  report  and  the  author in his deposition has also admitted that  through a mistake he omitted to mention the  crime number in the inquest report, this Court  has held that just because the author of the  report had not been diligent did not mean that  reliable and clinching evidence adduced by the  eyewitnesses  should  be  discarded  by  the  Court. [Vide Krishna Pal (Dr.) v. State of U.P.]

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13. In view of the law referred to hereinabove  it  cannot  be  held  that  any  omission  or  discrepancy  in  the  inquest  is  fatal  to  the  prosecution’s case and such omissions would  necessarily  lead  to  the  inference  that  FIR  is  ante-timed.  Shri  N.K.  Sharma,  Sub-Inspector  (PW 7),  had denied the suggestion made by  the defence that till the time of preparing the  report the names of the accused persons were  not  available.  He  further  stated  that  the  column  for  filling  up  the  nature  of  weapons  used in the crime was left open as it could be  ascertained only by the doctor what weapons  had  been  used  in  the  crime.  Thus,  the  submissions  made  in  this  regard  are  preposterous.”

22. Similarly,  reference  can  also  be  made  to  the  case  of  

Shyamal Ghosh v. State of West Bengal [(2012) 7 SCC 646],  

where the Court dealing with discrepancies in the investigation  

and non-obtaining of FSL and their effect on the case of the  

prosecution held as under:-

“58.  Of  course,  there  are  certain  discrepancies in the investigation inasmuch  as the investigating officer failed to send the  bloodstained  gunny  bags  and  other  recovered  weapons  to  the  FSL,  to  take  photographs  of  the  shops  in  question,  prepare  the  site  plan  thereof,  etc.  Every  discrepancy in investigation does not weigh  with the court to an extent that it necessarily  results in acquittal of the accused. These are  the  discrepancies/lapses  of  immaterial  consequence.  In  fact,  there  is  no  serious  

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dispute in the present case to the fact that  the deceased had constructed shops on his  own land. These shops were not the site of  occurrence,  but  merely  constituted  a  relatable  fact.  Non-preparation  of  the  site  plan or not sending the gunny bags to the  FSL cannot be said to be fatal to the case of  the prosecution in the circumstances of the  present  case.  Of  course,  it  would  certainly  have been better for the prosecution case if  such steps were taken by the investigating  officer.

***** ***** ****** 68.  From  the  above  discussion,  it  precipitates  that  the  discrepancies  or  the  omissions have to be material ones and then  alone, they may amount to contradiction of  some serious consequence.  Every omission  cannot take the place of a contradiction in  law  and  therefore,  be  the  foundation  for  doubting the case of the prosecution. Minor  contradictions,  inconsistencies  or  embellishments of trivial nature which do not  affect  the  core  of  the  prosecution  case  should not be taken to be a ground to reject  the prosecution evidence in its entirety. It is  only  when  such  omissions  amount  to  a  contradiction creating a serious doubt about  the  truthfulness  or  creditworthiness  of  the  witness  and  other  witnesses  also  make  material  improvements  or  contradictions  before  the  court  in  order  to  render  the  evidence unacceptable, that the courts may  not be in a position to safely rely upon such  evidence.  Serious  contradictions  and  omissions which materially affect the case of  the  prosecution  have  to  be  understood  in  clear  contradistinction  to  mere  marginal  variations in the statement of the witnesses.  

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The prior may have effect in law upon the  evidentiary  value  of  the  prosecution  case;  however,  the  latter  would  not  adversely  affect the case of the prosecution.”

23. This Court has also expressed the view that it is a fair and  

settled position of law that even if there are some omissions,  

contradictions or discrepancies, the entire evidence cannot be  

discarded.   After  exercising care and caution and sifting the  

evidence  to  separate  the  truth  from  untruth,  exaggeration,  

embellishments and improvements, the Court can come to the  

conclusion as to whether the residual evidence is sufficient to  

convict the accused.    

24. Still, in some cases, the Court took the view that unless  

finding recorded by the High Court is so outweighed or such  

finding so outrageously defies logic so as to suffer from the vice  

of  irrationality,  this  Court  would  not  interfere  with  the  

judgment.   A mere discrepancy simplicitor does not affect the  

case of the prosecution materially or make it improbable and  

the  Court  will  not  be  inclined  to  interfere  with  the  finding  

recorded by the high courts.   (Ref. State of U.P. v. Naresh and  

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Ors. [(2011) 4 SCC 324] and Bhola @ Paras Ram v. State of H.P.  

[(2009) 11 SCC 460].

25. In  the case of  Munshi  Prasad & Ors.  v.  State of  Bihar  

[(2002) 1 SCC 351], this Court has also taken the view, after  

discussing various judgments, that some documents are not  

substantive evidence by themselves and it is the statement of  

expert or the author of the document that has the credibility  

of a substantive evidence.   In the similar  vein,  the inquest  

report  also  cannot  be  termed  to  be  basic  or  substantive  

evidence being prepared by the police personnel being a non-

medical man and at the earliest stage of the proceeding.  In  

the wake of the aforesaid,  a  mere omission of  a particular  

injury  or  indication  therein  of  an  additional  one  cannot,  

however,  invalidate  the  prosecution  case. The  evidential  

value of inquest report cannot be placed at a level  as has  

been so placed by the appellants.  The Inquest Report or the  

post mortem report cannot be termed to be basic evidence or  

substantive  evidence  and  discrepancies  occurring  therein  

cannot  be  termed  to  be  fatal  nor  even  a  suspicious  

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circumstance which would warrant a benefit to the accused  

and result in dismissal of the case of the prosecution.

26. In view of the above discussion on the evidence of the  

case and other attending circumstances seen in light of the  

above stated principles, we have no hesitation in coming to  

the  conclusion  that  the  discrepancies  pointed  out  by  the  

appellants are neither material nor do they affect the case of  

the prosecution adversely.    The Court has to examine the  

entire  evidence  as  a  whole  and  not  in  parts  so  as  not  to  

frustrate  the  entire  eye  witness  version  and  the  medical  

evidence.   There is sufficient evidence in the present case to  

show  the  involvement  of  the  accused  persons  in  the  

commission of the crime.

27. Lastly,  we  should  deal  with  the  contention  of  the  

appellant  dealing  with  the  delay  in  institution  of  the  FIR.  

Admittedly,  the occurrence took place at about 10 p.m. on  

12th March, 1991 and the FIR was lodged on 13th March, 1991  

at about 8.45 a.m.    There is some delay in lodging of the FIR,  

but this delay stands fully explained by the statement of the  

witnesses and the conduct of such witnesses.   PW1 is the  

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author of the FIR.   According to his statement, he had first  

taken the deceased to the hospital and he remained in the  

hospital and went to the police station in the morning hours of  

13th March, 1991.   This conduct of PW1 is natural.  He is the  

brother of the deceased and was grieving the death of his  

brother.   His priority would be to ensure that his brother gets  

the best of the medical aid at the earliest and then to look  

after him.    There is some distance between the hospital and  

the place of occurrence and he remained in the hospital to  

look  after  his  brother.    Unfortunately,  his  brother  was  

declared  dead.    This  entire  controversy  has  been  well  

discussed by the trial  court in its judgment.   The relevant  

part of the judgment reads as under:-

“According to the prosecution, the incident  occurred  on  12.03.1991  at  10.00  p.m.  whereas the first information report of the  incident  was  lodged  with  Police  Station  Kaladungi on dated 13.02.1991 at 8.45 a.m.  The  place  of  incident  is  situated  at  a  distance of 10 kms from the Police Station.  The learned defence counsel  has  pleaded  that  no  satisfactory  explanation  has  been  given for delay in lodging first information  report, due to which the prosecution story  appears  to  be  doubtful.    PW-1  Bhopal  Chander  has  stated  that  after  receiving  injury Devender was taken to the hospital in  

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Haldwani  in  a  tractor  where  he  died  and  subsequently  he  went  to  Police  Station  Kaladungi  in  the  morning  to  lodge  the  complaint  leaving  the  dead  body  in  the  Hospital in Haldwani itself.   It is the natural  process that the every family member first  of all tries to save the life of injured instead  of lodging first information report and the  same has happened in the present case as  well that  the  complainant  first  of  all  brought  his  brother  to  the  hospital  in  Haldwani in order to save his life where he  died and subsequently he went to the Police  Station and lodged the complaint.   Keeping  in  view  the  circumstances  of  the  case,  satisfactory explanation is available on the  file to the delay in lodging first information  report.”

28. We are in full agreement with the reasoning given by the  

trial court for accepting that delay in lodging of the FIR had  

been duly explained.   It is not the law that mere delay in  

lodging the FIR would always or unexceptionally prove fatal to  

the case of the prosecution.   Wherever the delay is properly  

explained  by  the  prosecution  or  the  witnesses,  the  court  

would be reluctant to grant benefit of acquittal to the accused  

only  on that  ground.     In  the case of  Nagesh v.  State of  

Karnataka [(2012) 6 SCC 477],  the Court discussed various  

judgments of this Court and while noticing the principle that  

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“letting  the  guilty  escape is  not  doing  justice according  to  

law” held as under:-

“26. The Court has to examine the evidence  in  its  entirety,  particularly,  in  the  case  of  circumstantial  evidence,  the  Court  cannot  just take one aspect of the entire evidence  led in the case like delay in lodging the FIR in  isolation  of  the  other  evidence  placed  on  record  and  give  undue  advantage  to  the  theory of benefit  of  doubt in  favour of  the  accused.  

27. This  Court  in  Sucha  Singh v.  State  of  Punjab has stated: (SCC pp. 653-54,  para  20)

“20.  Exaggerated devotion to the rule of  benefit  of  doubt  must  not  nurture  fanciful  doubts  or  lingering  suspicion  and  thereby  destroy  social  defence.  Justice  cannot  be  made sterile on the plea that it is better to  let a hundred guilty escape than punish an  innocent.  Letting  the  guilty  escape  is  not  doing  justice  according  to  law.  (See  Gurbachan  Singh v.  Satpal  Singh)  The  prosecution is not required to meet any and  every  hypothesis  put  forward  by  the  accused. (See  State of U.P. v.  Ashok Kumar  Srivastava.)  A  reasonable  doubt  is  not  an  imaginary,  trivial  or  merely possible doubt,  but  a  fair  doubt  based  upon  reason  and  common  sense.  It  must  grow  out  of  the  evidence  in  the  case.  If  a  case  is  proved  perfectly, it is argued that it is artificial; if a  case  has  some  inevitable  flaws  because  human beings are prone to err, it is argued  that  it  is  too  imperfect.  One  wonders  whether in the meticulous hypersensitivity to  

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eliminate  a  rare  innocent  from  being  punished,  many  guilty  persons  must  be  allowed to escape. Proof beyond reasonable  doubt is a guideline, not a fetish. [See Inder  Singh v. State (Delhi Admn.). Vague hunches  cannot take place of judicial evaluation.  

‘A Judge does not preside over a criminal  trial, merely to see that no innocent man is  punished. A Judge also presides to see that a  guilty man does not escape. Both are public  duties.’  [Per  Viscount  Simon  in  Stirland v.  Director  of  Public  Prosecutions quoted  in  State of U.P. v.  Anil Singh (SCC p. 692, para  17).]  

Doubts  would  be  called  reasonable  if  they  are free from a zest for abstract speculation.  Law cannot afford any favourite other than  truth.”

29. In other cases, the Court has taken the view that mere  

delay in lodging the FIR may not prove fatal in all cases, but in  

given circumstances of a case, delay in lodging the FIR can be  

one  of  the  factors  which  corrode  the  credibility  of  the  

prosecution version.  Delay in lodging of the FIR cannot be a  

ground for throwing the entire prosecution case.   In cases,  

where there is some delay in filing the FIR, the complainant  

must give explanation for  the same.  Undoubtedly,  delay in  

lodging  the  FIR  does  not  make  the  complainant's  case  

improbable  when  such  delay  is  properly  explained. (Ref.  

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Bhajan Singh @ Harbhajan Singh & Ors. v.  State of Haryana  

[(2011) 7 SCC 421] and  Jitender Kumar v.  State of Haryana  

[(2012) 6 SCC 204].

30. The  delay  having  been  properly  explained  by  the  

investigating agency, PW2 and PW1, we see no reason to take  

the view that delay in lodging of the FIR in the facts of the  

present case would prove fatal to the case of the prosecution.  

The motive is not an absolute essential feature of commission  

of  a  crime.   According  to  PW1,  there  had  been  scuffle  

between the parties few days prior to the date of occurrence,  

when the accused persons were playing cards along with the  

deceased and gambling which could be settled only by the  

intervention of the Sabhapati and that they had threatened  

the deceased and stated that they would see him later.  This  

may or may not be a motive enough to kill somebody, but the  

fact remains that prior to the date of occurrence, there was a  

scuffle between the parties where the accused persons had  

threatened the deceased.

31. In view of  the above discussion,  we see no reason to  

interfere with the concurrent finding of conviction and order  

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of sentence passed by the courts.   Consequently the appeal  

is dismissed.

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

  .…................................J.      [Madan B. Lokur]

New Delhi December 13, 2012  

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