REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 610 of 2007

Shivlal & Anr.                                  …Appellants

Versus

State of Chhattisgarh               …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order  

dated  25.8.2006  of  the  High  Court  of  Chhattisgarh  at  Bilaspur  in  

Criminal  Appeal  No.973  of  2000,  wherein  the  High  Court  has  

confirmed the conviction and sentence, so far as the present appellants  

are concerned, awarded by the Additional Sessions Judge, Bemetara,  

Durg dated 31.3.2000 in Sessions Trial No.147 of 1999 by which the  

appellants stood convicted under Section 148 of the Indian Penal Code,  

1860 (hereinafter called “IPC”) and sentenced to undergo R.I. for two  

years  and pay a fine of  Rs.200/-,   in  default  of  payment  of  fine  to

further undergo R.I.  for one month.  Sukhsagar,  appellant  no.2 stood  

convicted  under  Section  302  IPC and  Shivlal,  appellant  no.1  stood  

convicted under Section 302 read with Section 149 IPC and both were  

sentenced to undergo imprisonment for life and pay a fine of Rs.500/-  

each,  in  default  of  payment  of  fine  to  further  undergo  R.I.  for  two  

months.  All the sentences had been directed to run concurrently.

2. Facts and circumstances giving rise to this appeal are:

A. According to the prosecution, the appellants along with 13 other  

accused persons armed with deadly weapons, with a common object of  

murdering  Shankar  Satnami  attacked  him  on  12.10.1997  at  about  

afternoon  near  the  house  of  Tijwa  Sahu  when  Shankar  Satnami,  

deceased, was proceeding towards a tank for taking bath along with his  

wife Sukhbai (PW.9) and his grandson Anil, as a result of which he  

sustained numerous injuries and died on the spot.

B. The incident had occurred in the outskirts of the village. Sukhbai  

(PW.9) came back to the village and when she informed Beer Singh  

(PW.1) about the incident, he told her that he himself witnessed the  

incident  and  came  back  to  the  village  after  the  incident  was  over.  

Ramkhilawan (PW.7) went to the Police Station at a very far distance  

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and gave oral information about the incident to the police. Instead of  

lodging a formal FIR on the basis of oral information by Ramkhilawan  

(PW.7), the police only registered a complaint (Dehati Nalish).  Mr.  

J.S.  Dhurve,  I.O.  (PW.12)  proceeded  for  the  village  Dara.  After  

reaching  the  place  of  occurrence,  he  met  Beer  Singh  (PW.1)  who  

narrated the incident to him. It  was on the basis of this information  

Case  Crime  No.  236/97  was  mentioned  in  the  aforesaid  complaint  

(Dehati Nalish) mentioning offences under Sections 147, 148, 149 and  

302 IPC.  

C. After reaching the place of occurrence, the I.O., Mr. J.S. Dhurve  

(PW.12)  performed the  inquest  over  the  body of  the  deceased  vide  

Ex.P-6 in the presence of the witnesses and sent the body for autopsy to  

Govt. Hospital, Bemetara, where Dr. K.L. Dhruv (PW.14), conducted  

the post mortem and submitted the report Ex.P-15.  Mr. J.S. Dhurve,  

S.I.  (PW.12),   prepared  the  Site  plan  Ex.P-6  and  another  Site  plan  

Ex.P.13-A was prepared by the Halka Patwari, Tuganram Sahu.  The  

accused  were  apprehended and at  their  disclosure  statements,  blood  

stained weapons were recovered.  Plain soil and blood stained soil was  

taken  into  possession  from  the  place  of  incident.   Blood  stained  

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underwear, Lungi and pair of slippers and a knife were seized from the  

spot vide Ex.P-29.

D. The weapons used for commission of the offence seized from the  

accused persons  were sent  for  examination,  first  to the  Doctor  who  

opined  that  the  injuries  to  the  deceased  could  be  caused  by  the  

recovered  weapons.   The  said  weapons  were  subsequently  sent  for  

chemical examination along with plain and blood stained soils.  The  

Forensic  Science  Laboratory  vide  its  report  Ex.P-9  confirmed  the  

presence of blood over all those articles.

E. After  completing  investigation,  chargesheet  was  filed  against  

fifteen accused persons in the Court of Judicial Magistrate, First Class,  

Bemetara,  who in turn committed the case to the Court  of Sessions  

Judge, Durg. The Trial Court framed the charges under Sections 147,  

148 and 302/149 IPC against all the accused persons who abjured their  

guilt.

F. The  prosecution  in  order  to  establish  the  charges  against  the  

accused persons, examined 13 witnesses and after completion of their  

depositions, the court examined all the accused persons under Section  

313  of  the  Code  of  Criminal  Procedure,  1973  (hereinafter  called  

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“Cr.P.C.”), wherein they denied their involvement and submitted that  

they  had  falsely  been  implicated  because  of  the  village  factional  

rivalry.   The  Trial  Court  vide  judgment  and  order  dated  31.3.2000  

acquitted nine persons of all the charges giving them benefit of doubt,  

however, convicted and sentenced the remaining six accused persons  

including the appellants.

G. The said six convicts preferred Criminal Appeal No.973 of 2000  

in the High Court of Chhattisgarh at Bilaspur wherein the High Court  

vide impugned judgment and order acquitted four persons, however,  

upheld the conviction and sentence of the two appellants as awarded by  

the trial Court.

Hence, this appeal.

3. Ms.  Tanuj  Bagga,  learned  Amicus  Curiae  appearing  for  the  

appellants, has submitted that the dispute arose because of a factional  

rivalry  in  the  village  and unending dispute  over  the  land meant  for  

community  use  on  which  Shankar  Satnami,  deceased,  had  illegally  

encroached  upon.   In  the  oral  complaint  made  by  Ramkhilawan  

(PW.7), not even a single accused had been named.  There had been no  

eye-witness except Sukhbai (PW.9) whose evidence itself is not worth  

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reliance. The courts below erred in convicting the appellants  on the  

basis of the evidence on which a large numbers of accused had been  

acquitted.  There had been material irregularities in the trial itself as no  

report as required under Section 157(1) Cr.P.C., has been sent to the  

Ilaqa Magistrate which was mandatory.  The High Court brushed aside  

all legal submissions advanced on behalf of the appellants.  Once the  

High Court came to the conclusion that recovery of weapons itself was  

doubtful,  the  appellants  were  equally  entitled  for  benefit  of  doubt.  

Both the appellants have served for more than 11 years and are still in  

jail. The appeal deserves to be allowed.

4. Mr.  Atul  Jha,  learned  counsel  appearing  for  the  State,  has  

opposed the appeal contending that there are concurrent findings of fact  

by the two courts which do not require any interference by this Court.  

In  case,  the  provisions  of  Section  157(1)  Cr.P.C.  had  not  been  

complied  with,  it  may  be  treated  as  a  lapse  on  the  part  of  the  

Investigating Officer and should not adversely affect the prosecution  

case.   The  recovery  of  weapons  had  been  made  on  the  basis  of  

disclosure  statements  made  by  the  appellants  and sent  for  chemical  

analysis.  The courts below have considered the issue elaborately and  

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does not require further consideration by this Court.  The appeal lacks  

merit and is liable to be dismissed.

5. We  have  considered  the  rival  submissions  made  by  learned  

counsel for both the parties and perused the record.   

This  is  a  unique case  wherein,  admittedly,  proceedings/  

investigation had been conducted without observing the provisions of  

the  Cr.P.C.  Sukhbai  (PW.9) is  the sole eye-witness,  however,  she  

being  illiterate  and  rustic  village  woman,  does  not  have  any  

idea/impression of time and distance.  In this case, two other persons,  

namely, Beer Singh (PW.1) and Ramkhilawan (PW.7) also claimed to  

be the eye-witnesses of the incident.  However, Beer Singh (PW.1) has  

been treated to be the author of the FIR, though no formal FIR has been  

lodged in respect of the incident.  Ramkhilawan (PW.7) turned hostile  

and it is he, who reached the police station and informed the police  

about the incident.  It is on this information, the police recorded the  

“Dehati Nalish” and without lodging a formal FIR, proceeded to the  

place of incident.  Admittedly, no copy of the FIR has been sent to the  

Ilaqa Magistrate, which is mandatory under Section 157 Cr.P.C.   Mr.  

J.S.  Dhurve,  the  Investigating  Officer  (PW.12),  has  explained  that  

information about the incident was given by Ramkhilawan (PW.7) in  

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the  police  station,  however,  no  FIR  was  lodged  formally.  He  

immediately  rushed  to  the  place  of  incident  apprehending  further  

incidents because of factional rivalry in the village.  The I.O. (PW.12)  

has  further  deposed  that  on  reaching  the  place  of  occurrence,  Beer  

Singh (PW.1) met him and it was on his statement, FIR was lodged.  

However, he admitted that the said document did not contain signature  

of Beer Singh (PW.1).

6. Harpal  Singh,  Head  Constable  (PW.13),  had  deposed  just  

contrary to what had been stated by Mr. J.S. Dhurve (PW.12) as he  

stated that FIR was lodged in the police station itself and he went along  

with the Investigating Officer in the police jeep. He did not know who  

was the driver of the jeep as it was being driven by a private person.  

He further deposed that when they reached the place of occurrence,  

dead body of Shankar Satnami, deceased was lying there and no one  

else was present there. After reaching the place of occurrence, certain  

people were called from the village through Chowkidar.  Such a factual  

situation is improbable. Dead body is not left unattended.  

7. The  Trial  Court  itself  held  that  Sukhbai  (PW.9)  had  enroped  

certain persons in the crime falsely and disbelieving her statement to  

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that extent, some accused had been acquitted by the Trial Court.  Same  

remained  the  position  in  appeal  as  disbelieving  her  statement,  four  

persons  were  acquitted  by  the  High Court.   The  Trial  Court  found  

improvements in her statement in court  as she had not stated in her  

statement  under  Section  161  Cr.P.C.  that  Sukhsagar  and  Shivlal,  

appellants,  had  caused  injuries  to  her  husband  Shankar  Satnami,  

deceased with ‘tabbal’ and spear.  Beer Singh (PW.1) claimed himself  

to be the eye-witness who instead of informing any other person, went  

to the village and when Sukhbai (PW.9) met him and told about the  

incident, he told Sukhbai that he had also witnessed the incident.  The  

courts  below have not  given much relevance to his statement.   The  

Trial  Court  had  recorded  a  finding  that  there  had  been   material  

contradictions/ improvements in the statement of witnesses. The Trial  

Court  held  that  information  given  by  Ramkhilawan  (PW.7)  to  the  

police after reaching the police station was an FIR under Section 154  

Cr.P.C. though, the High Court had taken a contrary view.  There has  

been serious doubt about the recovery of weapons and the High Court  

has disbelieved the said recoveries.  More so, there was no report of  

chemical  analysis  that the weapons so recovered contained stains of  

human blood.

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8. While dealing with the issues, the High Court observed as under:

I. “In  the  instant  case,  admittedly  the  prosecution  has failed to prove that information as mandated  under Section 157(1) of the Cr.P.C. was sent to  the concerned Magistrate.  We have already noted  above that from the evidence available on record  four persons had immediately gone to the police  station to lodge report but no FIR was registered  on their report.”

II. “Sukhbai (PW.9) has also stated that the incident  was  witnessed  by  Mulchand,  Khilawan,  Dhan  Singh and  Baburam.   None  of  the  independent  witnesses  has  supported  the  case  of  the  prosecution.   However,  in  her  statement  before  the Court she had added the name of Ganga.  She  had  not  made  any  specific  allegations  against  appellants  Hemkumar,  Brijlal,  Aasan  and  Ashwani.”

III.“PW.1 Beer Singh,  PW.2 Dharambai  and PW.5  Ishwaribai are not the eyewitnesses according to  the case of the prosecution.  However, PW.1 and  PW.2  have  claimed  themselves  to  be  the  eyewitnesses and therefore, the Court below has  rightly disbelieved the account given by these two  witnesses.”

IV. “Thus  the  evidence  on  which  the  conviction is based is the memorandum of arrest  of  the  accused  persons  and  the  recovery  of  weapons of offence on their statements. We find  from the evidence on record that only one witness  namely  Sitaram,  PW.10,  the  witness  of  memorandum  and  recovery  has  been  examined  and he has stated in his cross examination that he  was summoned by the police near the tank and  from there the dead body was taken to the school  and  his  signature  was  obtained  on  various  

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papers for two days in the school at a time.  He  has also admitted that he had encroached upon the  Government  land  which  was  grazed  by  the  villagers and therefore, we are of the considered  opinion  that the evidence of  memorandum of  the  accused  persons  and  recovery  of  the  weapon  of  offence  in  pursuance  of  the  said  memorandum, does not inspire confidence.”

V. “Even otherwise,  there is no evidence available  on record to establish on record that  the seized  weapons contained human blood.”      

           (Emphasis  

added)

9. This  Court  in  Bhajan  Singh  @ Harbhajan  Singh & Ors.  v.  

State of Haryana, (2011) 7 SCC 421,  has elaborately dealt with the  

issue of sending the copy of the FIR to the Illaqa  Magistrate with delay  

and after placing reliance upon a large number of judgments including  

Shiv  Ram v.  State  of  U.P.,  AIR  1998  SC 49;  and  Arun  Kumar  

Sharma v. State of Bihar,  (2010) 1 SCC 108 came to the conclusion  

that  Cr.P.C.  provides  for  internal  and external  checks:  one  of  them  

being  the receipt of a copy of the FIR by the Magistrate concerned. It  

serves the purpose that the FIR be not ante-timed or ante-dated. The  

Magistrate must be immediately informed of every serious offence so  

that he may be in a position to act under Section 159 Cr.P.C.,  if so  

required. The object of the statutory provision is to keep the Magistrate  

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informed  of  the  investigation  so  as  to  enable  him  to  control  

investigation and, if necessary, to give appropriate direction.  However,  

it is not that as if every delay in sending the report to the Magistrate  

would  necessarily  lead  to  the  inference  that  the  FIR  has  not  been  

lodged  at  the  time  stated  or  has  been  ante-timed  or  ante-dated  or  

investigation is not fair and forthright. In a given case, there may be an  

explanation for delay. An unexplained inordinate delay in sending the  

copy of the FIR to Illaqa Magistrate may affect the prosecution case  

adversely.  However, such an adverse inference may be drawn on the  

basis of attending circumstances involved in a case.  

10. In  the  instant  case,  copy  of  the  FIR  was  not  sent  to  the  

Magistrate at all as required under Section 157 (1) Cr.P.C. In such a  

case, in absence of any explanation furnished by the prosecution to that  

effect,  would definitely  cast  shadow on the case of the prosecution.  

This Court dealt with the issue in Criminal Appeal No. 1062 of 2003 in  

State of Madhya Pradesh v. Kalyan Singh, decided on 26.6.2008,  

wherein  this  Court  was  informed  by  the  Standing  counsel  that  in  

Madhya Pradesh, police is not required to send the copy of the FIR to  

the  Illaqa  Magistrate,  but  it  is  required  to  be  sent  to  the  District  

Magistrate.  It  was  so  required  by  the  provisions  contained  in  

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Regulation 710 of the Madhya Pradesh Police Regulations.  This Court  

held  that  Regulation  710 cannot  override  the  statutory  requirements  

under Section 157(1) Cr.P.C. which provide for sending the copy of the  

FIR to the Illaqa Magistrate.  

The instant appeal has come from Chhattisgarh which has  

been carved out from the State of Madhya Pradesh. Learned Standing  

counsel for the State, is not in a position to throw any light on this issue  

at all.  Thus, in such a fact-situation, we can simply hold that in spite of  

the fact that any lapses on the part of the I.O., would not confer any  

benefit on the accused, the case of the prosecution may be seen with  

certain  suspicion  when  examined  with  other  contemporaneous  

circumstances involved in the case.  

11. In  State  by  Inspector  of  Police,  Tamil  Nadu v.  N.  

Rajamanickam & Ors., (2008) 13 SCC 303,  this Court dealt with a  

similar case wherein a lot of lapses had been noted on the part of the  

prosecution.  In the said case, originally 16 persons were named in the  

chargesheet out of which one had died, one had absconded and the rest  

14 persons faced trial. The Trial Court convicted only six out of them.  

Those six persons preferred the criminal  appeal  and the High Court  

found  that  there  were  certain  vital  factors  which  rendered  the  

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prosecution version improbable. One of the factors noted was delay in  

dispatch and receipt of  the FIR and connected documents in the court  

of Magistrate. The factional village rivalry was shown to be the cause  

of concern therein also.  The High Court found that evidence of  some  

of the prosecution witnesses  lacked credibility and credence and, thus,  

all the persons were acquitted.  This Court dismissed the appeal of the  

State observing as under:

“Delay  in  receipt  of  the  FIR  and  the  connected   documents in all cases cannot be a factor corroding the   credibility of the prosecution version. But that is not the  only factor which weighed with the High Court. Added  to that, the High Court has noted the artificiality of the  evidence of PW 1 and the non-explanation of injuries on  the accused persons which were very serious in nature.   The combined effect of these factors certainly deserved   consideration and, according to us, the High Court has   rightly emphasised on them to hold that the prosecution   has  not  been  able  to  establish  the  accusations.   Singularly, the factors may not have an adverse effect   on the prosecution version. But when a combined effect   of the factors noted by the High Court are taken into   consideration, the inevitable conclusion is that these are  cases where no interference is called for.”

                                                                       (Emphasis added)

12. The case at hand is, by no means different from the case above  

referred to and in the facts and circumstances of the case, we are of the  

considered  opinion  that  the  appellants  are  entitled  to  the  benefit  of  

doubt.   Appeal  stands  allowed.   The  judgments  and   orders  of  the  

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courts  below dated  31.3.2000  and  25.8.2006  are  set  aside  and the  

appellants are acquitted. In case the appellants are not wanted in some  

other case, they be released forthwith.  

Before parting with the case, we would like to record our  

appreciation  for  Ms.  Tanuj  Bagga,  learned  Amicus  Curiae,  for  

rendering valuable assistance to the Court in spite of not having the full  

documents/papers.  

………………………… …J.

(P. SATHASIVAM)

………………………… …J.

(Dr. B.S. CHAUHAN) New Delhi, September  19, 2011

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