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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     2026     OF     2009   

Surajit Sarkar …..Appellant

Versus

State of West Bengal        …..Respondent

J     U     D     G     M     E     N     T      

Madan     B.     Lokur,     J.   

1. The principal issues before us are whether a cryptic  

telephonic intimation given to the police can be described  

as a First Information Report for the purposes of Section  

154 of the Criminal Procedure; whether the testimony of  

PW-7 Sanatan Sarkar and PW-8 Achintya Sarkar can be  

accepted for upholding the conviction of Surajit Sarkar  

(the appellant); whether Surajit Sarkar can be convicted  

of murder even though his co-accused have been  

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acquitted and finally whether Surajit Sarkar did commit  

the murder of Gour Chandra Sarkar.

2. In our view, the first issue must be answered in the  

negative. We also hold that the testimony of PW-7  

Sanatan Sarkar cannot be accepted, but we do accept the  

testimony of PW-8 Achintya Sarkar. We find no reason to  

hold that merely because those accused with Surajit  

Sarkar have been acquitted, he too must be acquitted of  

the charge against him. However, we find, on the  

testimony of PW-8 Achintya Sarkar, that Surajit Sarkar is  

liable to be punished not for the murder of Gour Chandra  

Sarkar but for culpable homicide not amounting to  

murder punishable under Section 304 of the Indian Penal  

Code.  

The facts:

3. On 21st March 1995, Susanta Sarkar’s father Gour  

Chandra Sarkar had gone on his cycle to the Gobindapur  

bazaar in the evening. At about 9.00 pm while he  

(Susanta Sarkar) was in his house, he heard a cry from  

his mother. On inquiring from her, he learnt that Bishnu  

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Sarkar informed her that Gour Chandra Sarkar had been  

murdered at about 8/8.30 pm apparently in front of  

Bimal Poddar’s house.  

4. Susanta Sarkar immediately rushed to the spot and  

found his father lying senseless on the ground with  

bloody injuries. On raising a noise, some villagers  

gathered there and advised him to lodge a complaint.  

Thereafter, he went to his uncle’s house (Bishnu Sarkar’s  

father) and wrote out a complaint.  

5. Later, he came to know at about 10/10.30 pm that the  

police had reached the place of occurrence. Thereupon,  

he too went to the place of occurrence and met the police.  

In his presence, the police seized some items, including  

his father’s wrist watch and cycle. After the seizure  

proceedings were over at about 11.55 pm he handed over  

to the police his complaint addressed to the officer-in-

charge Police Station Santipur, District Nadia.  

6. In his complaint, Susanta Sarkar stated the broad  

facts mentioned above, namely, that his father had gone  

to the Gobindapur bazaar in the evening; that he came to  

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know his father had been murdered at about 8.30/9.00  

pm in front of Bimal Poddar’s house; that he went to the  

place of occurrence and found his father lying on the road  

with a bleeding injury.  

7. He also stated in his complaint that there was a  

dispute between the members of his family and that of  

Gour Sarkar and some people engaged by him. On 8th  

March 1995 there was a scuffle between the two parties  

and a case was pending in that regard. His brother Nimai  

Sarkar was in jail as a result of that incident. Gour  

Sarkar’s party had also been in jail but had been released  

a day or two earlier. Susanta Sarkar stated in his  

complaint that he firmly believed that six members of  

Gour Sarkar’s party murdered his father Gour Chandra  

Sarkar due to the grudge that they bore.

8. Based on the complaint given by Susanta Sarkar, a  

First Information Report (FIR) was registered in Police  

Station Santipur, District Nadia on 22nd March 1995 at  

about 00.45 am and formal investigations commenced  

into offences punishable under Section 302 read with  

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Section 34 and Section 120-B of the Indian Penal Code  

(for short the IPC) against the six accused persons. On  

conclusion of the investigations, a charge sheet was filed  

against them. Charges were framed against the accused  

persons but they pleaded not guilty and claimed trial.  

9. Although the prosecution produced fourteen  

witnesses, we are concerned with the evidence of only  

some of them.

10. PW-1 Susanta Sarkar confirmed what he had  

stated in his complaint. He added that his younger  

brother Achintya Sarkar (aged about 12/13 years when  

the incident took place) returned home that night at  

about 2/2.30 am and informed the witness that Surajit  

Sarkar, Adhir Sarkar and Sukumar Sarkar had killed  

Gour Chandra Sarkar. When Achintya Sarkar opposed  

them, Bara Gopal Sarkar, Jamai Gopal Sarkar and  

Bhebesh Sarkar chased him and so he fled away. (These  

were the same persons named by Susanta Sarkar in his  

complaint). In his cross-examination, Susanta Sarkar  

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stated that he did not ask Achintya Sarkar where he was  

till 2.30 am.  

11. PW-2 Bishnu Sarkar stated that he had gone to  

the Gobindapur market that evening. When he was  

returning home, he saw 5/6 persons near the primary  

school. He could identify Surajit Sarkar in the torchlight.  

When he proceeded further, he saw Gour Chandra Sarkar  

lying senseless on the road with injuries on his chest,  

head and hand etc. He immediately went and narrated  

what he saw to Gour Chandra Sarkar’s wife. Although  

this witness turned hostile, he stated that he was present  

when the inquest and seizure of articles took place later  

that night.  

12. PW-3 Parash Biswas was a panchayat member of  

Gobindapur village. He was in a meeting when he learnt  

of the murder of Gour Chandra Sarkar. He went to the  

place of occurrence and saw the dead body. Thereafter,  

he telephonically informed the police station of the  

incident but did nothing further. From the deposition of  

PW-11 Krishnapada Mazumdar of Police Station  

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Santipur, it appears that the telephone call was made  

around 9.35 pm when a General Diary entry was made by  

him to the effect that an unknown person gave  

information about the murder of an unknown person at  

Arpara, Police Station Santipur, District Nadia.  

13. PW-7 Sanatan Sarkar was a neighbor of Gour  

Chandra Sarkar and an eyewitness to his murder. He  

testified that he was returning from Gobindapur to  

Arpara with Achintya Sarkar and Gour Chandra Sarkar  

at about 8.30 pm on 21st March 1995. On the way, near a  

primary school, 5/6 persons surrounded Gour Chandra  

Sarkar. He saw Surajit Sarkar from the light of his torch  

assaulting Gour Chandra Sarkar with a rod. He also  

identified Adhir Sarkar and Sukumar Sarkar at the place  

of occurrence and said that they chased him (Gour  

Chandra Sarkar). He did not say that Adhir Sarkar and  

Sukumar Sarkar assaulted Gour Chandra Sarkar and he  

did not identify anybody else at the place of occurrence.  

The witness said that he escaped from the place of  

occurrence and went home. He came to know the next  

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morning that Gour Chandra Sarkar had died. It  

transpires from the evidence of the investigating officer  

PW-14 Pradyut Banerjee that even though Sanatan  

Sarkar was an eyewitness, he was examined only on 10th  

May 1995 about a month and an half after the incident.  

14. PW-8 Achintya Sarkar, son of Gour Chandra  

Sarkar was also an eyewitness. He was about 12/13  

years old when the incident took place. In his testimony  

he stated that he, his father and Sanatan Sarkar were  

returning to their village from Gobindapur at about  

8/8.30 pm on 21st March 1995. When they were near a  

school, he saw from his torchlight that Surajit Sarkar was  

assaulting his father with a rod. Then Sukumar Sarkar  

followed by Adhir Sarkar assaulted his father with a rod.  

He tried to go to his father but was chased away by Gopal  

Sarkar, Jamai Gopal Sarkar and Bhebesh Sarkar. He was  

afraid that they might kill him. He stated that he returned  

home that night at about 2.00 pm. When the police came  

to his house thereafter, he narrated the incident to them.  

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15. PW-9 Dr. Partha Sarathi Saha confirmed the  

injuries on Gour Chandra Sarkar and stated that a hard,  

blunt weapon could have caused them. The injuries were:

(1)1½” cut mark over the right front parietal region.

(2) ½” cut mark over the back of right parietal region.

16. There were some abrasion marks over the right  

ear and right knee. He also found that the right parietal  

bone was fractured.  The membrane and brain matter  

were ruptured. There was a fracture of the right 6th & 7th  

ribs and a fracture of the lower end of right radius and  

dislocation of the right elbow joint. In his cross  

examination this witness stated that injury (1) and (2)  

above may be caused by contact with a hard and blunt  

weapon and even by a fall.  

17. PW-14 Pradyut Banerjee the investigating officer  

confirmed the events as investigated by him. He also  

confirmed the seizures made and generally supported the  

case of the prosecution. In his cross-examination, he  

stated that he examined Achintya Sarkar at his residence  

at about 2.10 am on 22nd March 1995. At that time,  

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Achintya Sarkar did not say that he was chased away by  

Gopal Sarkar, Jamai Gopal Sarkar and Bhebesh Sarkar.  

He had stated that Surajit Sarkar assaulted his father.  

Decision of the Trial Court:  

18. The principal contention of the defence before the  

Trial Court was that the telephonic intimation given by  

PW-3 Parash Biswas must be treated as the FIR for the  

purposes of Section 154 of the Criminal Procedure Code  

(for short the Cr.P.C.). Consequently, the complaint  

lodged by PW-1 Susanta Sarkar would not be the FIR and  

the contents thereof would be hit by Section 162 of the  

Cr.P.C.

19. The Trial Judge rejected this contention holding  

that the ingredients of Section 154 of the Cr.P.C. were not  

made out and that the telephonic message given by an  

unknown person with regard to the death of another  

unknown person could not be treated as an FIR.   In  

arriving at this conclusion the Trial Judge relied on  

Ramsinh Bavaji Jadeja v. State of Gujarat, (1994) 2  

SCC 685.

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20. On the merits of the prosecution case, the Trial  

Court was of the view that even though some of the  

witnesses were interested witnesses and had some  

enmity with the accused persons, their evidence could  

not be thrown out only for this reason.  It was held that  

there was no dispute about the time and place of the  

incident.  There was also no dispute that Gour Chandra  

Sarkar had met a homicidal death.  The only question  

that remained under these circumstances was who had  

killed Gour Chandra Sarkar.

21. The Trial Judge held that there was insufficient  

evidence to implicate Bara Gopal Sarkar, Jamai Gopal  

Sarkar and Bhebesh Sarkar with the incident.  They were  

not identified by PW-7 Sanatan Sarkar and even  

according to the testimony of PW-8 Achintya Sarkar they  

had not dealt any blows on Gour Chandra Sarkar and  

had only chased him away from the scene of the crime.  

Accordingly, the Trial Judge acquitted Bara Gopal Sarkar,  

Jamai Gopal Sarkar and Bhebesh Sarkar.

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22. With regard to two other accused persons,  

namely, Sukumar Sarkar and Adhir Sarkar, the Trial  

Court held that even though PW-8 Achintya Sarkar had  

stated in his evidence that they had dealt blows on Gour  

Chandra Sarkar yet, since during the investigations, PW-

8 Achintya Sarkar had informed the investigating officer  

that he saw only Surajit Sarkar giving blows to Gour  

Chandra Sarkar, the Trial Judge gave them the benefit of  

doubt and accordingly acquitted them.

23. The Trial Judge was of the view that there was  

sufficient evidence that Surajit Sarkar had assaulted  

Gour Chandra Sarkar with an iron rod and had caused  

severe injuries on his head.  It was held that the  

prosecution had successfully proved beyond all  

reasonable doubt that Surajit Sarkar had murdered Gour  

Chandra Sarkar.  Accordingly, he was held punishable for  

the offence of murder and sentenced to life imprisonment.

Decision of the High Court:

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24. The State did not appeal against the acquittal of  

the five accused persons.  However, Surajit Sarkar filed  

C.R.A. No. 17 of 1998 which was heard by the Calcutta  

High Court. By its judgment and order dated 24th April  

2009, the High Court upheld the conviction of Surajit  

Sarkar and the sentence awarded to him.

25. Before the High Court, it was submitted that the  

complaint made by PW-1 Susanta Sarkar could not be  

treated as an FIR.  This contention was rejected by the  

High Court holding that the telephonic message received  

from an unknown person in respect of the murder of  

another unknown person was cryptic and anonymous  

and the ingredients of Section 154 of the Cr.P.C. were not  

made out. As such, it could not be treated as an FIR.  The  

High Court relied on Tapinder Singh v. State of  

Punjab, (1970) 2 SCC 113, Soma Bhai v. State of  

Gujarat, (1975) 4 SCC 257 and Ramsinh Bavaji  

Jadeja.   

26. The second contention before the High Court was  

that the prosecution witnesses were interested witnesses  

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and therefore their evidence was not credible. The High  

Court considered this contention and rejected it on the  

ground that there was no contradiction in the statements  

of the witnesses.

27. The next contention before the High Court was  

that there was an infirmity in the FIR since important  

facts affecting the probability of the case had been left  

out.  The High Court rejected this contention and held  

that an FIR is not an encyclopedia of the events said to  

have taken place.  The FIR only results in setting the  

investigative process in motion and in this case the  

investigation was carried out satisfactorily.  The failure of  

the complainant to mention from whom he got the  

information regarding the murder of Gour Chandra  

Sarkar was not material.

28. It was argued before the High Court that the  

investigation was shoddy inasmuch as the investigating  

officer did not seize the torches from which the  

eyewitnesses had seen the crime.  The High Court held  

that this could not be treated as an omission to discredit  

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the witnesses.  For this purpose, reliance was placed on  

Balo Jadav v. State of Bihar, (1997) 5 SCC 360.

29. Continuing with the argument of a shoddy  

investigation, it was contended that there was  

considerable delay in the examination of an eyewitness  

(PW-7 Sanatan Sarkar).  The High Court held that since  

no question was asked of the investigating officer  

regarding the delay in examination of the witness, the  

investigation cannot be faulted on this ground.  It was  

held that if asked, the investigating officer could have  

given an explanation which might have been acceptable.  

Reliance in this regard was placed on Ranbir and Ors. v.  

State of Punjab, (1973) 2 SCC 444 and Bodhraj v.  

State of J & K, (2002) 8 SCC 45.

30. The last contention urged before the High Court  

was that since the co-accused had been acquitted after  

having been given the benefit of doubt, it would not be  

correct to hold Surajit Sarkar guilty of the offence of  

murder. This contention was also rejected in view of  

Komal v. State of U.P., (2002) 7 SCC 82 and  

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Gangadhar Behera v. State of Orissa, (2002) 8 SCC  

381.

Contentions:

31. Before us, it was contended that the telephonic  

message received by the Police Station at Santipur and  

which was noted in the General Diary should be treated  

as the FIR and not the complaint made by PW-1 Susanta  

Sarkar.

32. The second contention was that the presence of  

PW-7 Sanatan Sarkar and indeed of PW-8 Achintya  

Sarkar at the place of occurrence was doubtful.  In this  

context, it was pointed out that PW-8 Achintya Sarkar did  

not mention the presence of PW-7 Sanatan Sarkar at the  

place of occurrence.  As far as PW-8 Achintya Sarkar is  

concerned, he was not traceable till 2.00 am the next day  

which by itself casts a doubt on his whereabouts.  

Moreover, this witness stated that he returned home at  

2.00 am on 22nd March 1995 but in his cross-

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examination he stated that after he fled from the place of  

occurrence he returned to the same place and saw his  

father lying dead with bloody injuries.  In view of this  

contradiction, this witness could not be believed.

33. The third contention urged was that the  

prosecution case looks a little doubtful inasmuch as PW-

8 Achintya Sarkar, a boy of 12/13 years did not reach  

home on the fateful evening till 2.00 am the next day and  

yet there was no complaint by anybody in the family  

about the missing child. This was said to be a little odd,  

and particularly since his father had been murdered, his  

family ought to have been a little worried about his safety  

and ought to have made a complaint to the police in this  

regard.  It was submitted that this conduct of Gour  

Chandra Sarkar’s family was inexplicable.

34. The final contention urged was that if five persons  

were given the benefit of doubt and found not guilty of the  

murder of Gour Chandra Sarkar, there was no reasonable  

basis for coming to the conclusion that Surajit Sarkar  

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alone had committed the murder of Gour Chandra  

Sarkar.

Discussion:

(1)  Whether a telephonic intimation is an FIR:

35. As far the first contention is concerned that the  

telephonic call should be treated as the FIR and not the  

complaint made by PW-1 Susanta Sarkar, we find no  

merit in the submission.

36. Section 154 (1) of the Cr.P.C. which is relevant for  

our purpose reads as follows :-

“154. Information in cognizable cases.

(1) Every information relating to the commission of a  cognizable offence, if given orally to an officer in  charge of a police station, shall be reduced to  writing by him or under his direction, and be  read over to the informant; and every such  information, whether given in writing or reduced  to writing as aforesaid, shall be signed by the  person giving it, and the substance thereof shall  be entered in a book to be kept by such officer in  such form as the State Government may  prescribe in this behalf.

37.A bare reading of this section makes it clear that even  

though oral information given by an officer in charge of a  

police station can be treated as an FIR, yet some  

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procedural formalities are required to be completed.  

They include reducing the information in writing and  

reading it over to the informant and obtaining his or her  

signature on the transcribed information.

38.In the case of a telephonic conversation received from  

an unknown person, the question of reading over that  

information to the anonymous informant does not arise  

nor does the appending of a signature to the information,  

as recorded, arise.

39.However, we are not going into any technicalities on  

the subject, keeping in mind technological advances  

made in communication systems. All we need say is that  

it is now well settled by a series of decisions rendered by  

this Court that a cryptic telephonic information cannot be  

treated as an FIR. In this case, the telephonic information  

is rather cryptic and was recorded in the General Diary  

as follows:

“Today in the marginally noted time I received an  information over Telephone from an unknown person  Gobindapur, P.S. Santipur, Nadia that today  (21.03.1992) night one unknown person was murdered  at Arpara, P.S. Santipur, Nadia.

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Accordingly I noted the fact in G.D., and informed the  matter to O.C. Santipur P.S. (N).

Sd/- K.P. Majumdar,  

S.I.”  

40. In Ramsing Bavaji Jadeja, this Court relied on  

Tapinder Singh and Soma Bhai and Dhananjoy  

Chatterjee v. State of West Bengal, (1994) 2 SCC 220  

to hold that a cryptic message given on telephone cannot  

be treated as an FIR merely because that information was  

first in point of time and had been recorded in the Daily  

Diary of the police station. It was also held that the object  

and purpose of a telephonic message is not to lodge a  

first information report but a request to the officer in  

charge of the police station to reach the place of  

occurrence.

41. This view was reiterated in Mundrika Mahto v.  

State of Bihar, (2002) 9 SCC 183, State of Andhra  

Pradesh v. V.V. Panduranga Rao, (2009) 15 SCC 211  

and Sidhartha Vashisht v. State (NCT of Delhi),  

(2010) 6 SCC 1. We see no reason to take a view different  

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from the one consistently taken by this Court in all these  

cases.

42. We may only add that it is a matter of regret that  

despite the law on the subject being well-settled, such an  

argument is raised once again.

(2) Presence of PW-7 at the place of occurrence:

43. The investigations into the crime do leave much  

to be desired as pointed out by learned counsel for  

Surajit Sarkar. The conduct of PW-7 Sanatan Sarkar was  

quite unnatural and a little odd and ought to have been  

looked into by the police. This witness was a neighbour of  

the victim and it appears from his testimony that after he  

witnessed the attack on Gour Chandra Sarkar, he did not  

bother to inform the victim’s family, or anybody else and  

simply went home. This witness further deposed that he  

came to know of the death of Gour Chandra Sarkar only  

the next morning.   

44. We also find it quite strange that the  

investigating officer examined PW-7 Sanatan Sarkar only  

on 10th May 1995 that is after a gap of more than a  

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month and a half of the incident. One charitable  

explanation for this delay is that PW-8 Achintya Sarkar  

did not mention the presence of PW-7 Sanatan Sarkar at  

the place of occurrence. This possibility gave rise to  

another submission by learned counsel for the Surajit  

Sarkar that perhaps PW-7 Sanatan Sarkar was not  

present at the place of occurrence.

45. Learned counsel for Surajit Sarkar relied upon  

Ganesh Bhavan Patel v. State of Maharashtra,  

(1978) 4 SCC 371 to contend that the delayed  

examination of PW-7 Sanatan Sarkar throws some doubt  

on his presence at the place of occurrence. In that case,  

there was a delay of a few hours by the investigating  

officer in examining the eyewitnesses and it was  

observed:

“Delay of a few hours, simpliciter, in recording the  statements of eyewitnesses may not, by itself, amount  to a serious infirmity in the prosecution case. But it  may assume such a character if there are  concomitant circumstances to suggest that the  investigator was deliberately marking time with a view  to decide about the shape to be given to the case and  the eyewitnesses to be introduced.”

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46. We are concerned with a case where there is a  

delay of a month and a half in examining an eyewitness.  

Perhaps what can charitably be said in defence of the  

investigating officer in the present case, unlike in  

Ganesh Bhavan Patel, is that it was not mentioned to  

him that PW-7 Sanatan Sarkar was an eyewitness. Even  

so, it reflects very poorly on the investigations.  

47. Learned counsel for the State relied upon a  

passage from Banti v. State of M.P., (2004) 1 SCC  

414. This passage reiterates a principle earlier laid  

down that the investigating officer must be specifically  

asked to furnish an explanation for the delay in  

examination of a witness. The passage is as follows:

“As regards the delayed examination of certain  witnesses, this Court in several decisions has held that  unless the investigating officer is categorically asked as  to why there was delay in examination of the witnesses  the defence cannot gain any advantage therefrom. It  cannot be laid down as a rule of universal application  that if there is any delay in examination of a particular  witness, the prosecution version becomes suspect. It  would depend upon several factors. If the explanation  offered for the delayed examination is plausible and  acceptable and the court accepts the same as plausible,  there is no reason to interfere with the conclusion (See  Ranbir v. State of Punjab [(1973) 2 SCC 444] and  Bodhraj v. State of J&K [(2002) 8 SCC 45]).”

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48. In Banti the delay in examining the  

eyewitnesses was two days, while in Ranbir Singh the  

delay was apparently of four days and in Bodhraj it was  

apparently about one week. In none of these decisions  

was the investigating officer asked to give an explanation  

for the delay in examination of a witness.  

49. In State of U.P. v. Satish, (2005) 3 SCC 114  

relied on by learned counsel for the State, the reason for  

the delay in examination of the witnesses is not quite  

clear. But, this Court reiterated the two principles earlier  

recognized, namely, that mere delay in examination of a  

witness does not make the prosecution version suspect  

and that the investigating officer must be asked the  

reason for the delay in examination of the witness.  

Ganesh Bhavan Patel was explained by observing that  

delay in examination of the witnesses was not the only  

determinative factor –  in fact, there were several factors  

taken together along with the delayed examination of  

witnesses that provided the basis for acquittal.  

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50. Finally, reference was made by learned counsel  

for the State to Shyamal Ghosh v. State of W.B.,  

(2012) 7 SCC 646 to contend that the delayed  

examination of a witness will not vitiate the prosecution  

case. We agree that delay per se may not be a clinching  

factor but when there is a whole range of facts that need  

to be explained but cannot, then the cumulative effect of  

all the facts could have an impact on the case of the  

prosecution.

51. If the evidence on record is looked at in  

perspective, namely, that PW-7 Sanatan Sarkar an  

eyewitness to the incident did not bother to inform  

anybody in the family of Gour Chandra Sarkar about the  

assault on his neighbour; that this eyewitness was  

examined by the investigating officer more than a month  

and a half after the occurrence; that the presence of this  

witness was not mentioned by PW-8 Achintya Sarkar also  

an eyewitness to the incident, leads us to have some  

doubt about the presence of PW-7 Sanatan Sarkar at the  

place of occurrence.

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52. Learned counsel for the State submitted while  

relying on Visveswaran v. State, (2003) 6 SCC 73, C.  

Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567  

and Sheo Shankar Singh v. State of Jharkhand,  

(2011) 3 SCC 654 that a defective investigation need not  

necessarily result in the acquittal of an accused person.

53. In Visveswaran all that this Court observed was that:

“In defective investigation, the only requirement is of  extra caution by courts while evaluating evidence. It  would not be just to acquit the accused solely as a  result of defective investigation. Any deficiency or  irregularity in investigation need not necessarily lead  to rejection of the case of prosecution when it is  otherwise proved.”

Similarly, in Muniappan this Court held:

“The law on this issue is well settled that the defect in  the investigation by itself cannot be a ground for  acquittal. If primacy is given to such designed or  negligent investigations or to the omissions or lapses  by perfunctory investigation, the faith and confidence  of the people in the criminal justice administration  would be eroded. Where there has been negligence on  the part of the investigating agency or omissions, etc.  which resulted in defective investigation, there is a  legal obligation on the part of the court to examine the  prosecution evidence dehors such lapses, carefully, to  find out whether the said evidence is reliable or not  and to what extent it is reliable and as to whether  such lapses affected the object of finding out the  truth.”

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Finally in Sheo Shankar Singh it was held as follows:

“Deficiencies in investigation by way of omissions and  lapses on the part of investigating agency cannot in  themselves justify a total rejection of the prosecution  case.”

54. We are not prepared to accept as a broad  

proposition of law that in no case can defective or shoddy  

investigations lead to an acquittal. It would eventually  

depend on the defects pointed out. If the investigation  

results in the real culprit of an offence not being  

identified, then acquittal of the accused must follow. It  

would not be permissible to ignore the defects in an  

investigation and hold an innocent person guilty of an  

offence which he has not committed. The investigation  

must be precise and focused and must lead to the  

inevitable conclusion that the accused has committed  

the crime. If the investigating officer leaves glaring  

loopholes in the investigation, the defence would be fully  

entitled to exploit the lacunae. In such a situation, it  

would not be correct for the prosecution to argue that the  

Court should gloss over the gaps and find the accused  

person guilty. If this were permitted in law, the  

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prosecution could have an innocent person put behind  

bars on trumped up charges. Clearly, this is  

impermissible and this is not what this Court has said.

55. It is clear from the record that the investigation  

has left unanswered several questions regarding PW-7  

Sanatan Sarkar. Under the circumstances, it is difficult  

to accept that PW-7 Sanatan Sarkar was present at the  

place and at the time when Gour Chandra Sarkar was  

attacked.

(3) Evidence of PW-8 Achintya Sarkar:  

56. We are now left only with the evidence of PW-8  

Achintya Sarkar.  In the case of this witness also the  

facts are a little odd in as much as when the crime took  

place he was about 12/13 years old.  When he was  

chased away by Gopal Sarkar, Jamai Gopal Sarkar and  

Bhebesh Sarkar, he naturally feared for his life and went  

into hiding. It is not clear what his movements were  

thereafter.   

57. In his deposition, PW-8 Achintya Sarkar stated  

that he came back to the place of occurrence and saw  

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the dead body of his father.  This could have been only  

around midnight on 21st March 1995 after the inquest  

proceedings were over and the seizure of some items at  

the place of occurrence was concluded by the police.  

Assuming this to be so, it is not clear where PW-8  

Achintya Sarkar hid himself after that and why.  In any  

event, he came back home only at 2.00 am on 22nd  

March 1995 when he told his brother PW-1 Susanta  

Sarkar about the incident and soon thereafter narrated  

the events to the investigating officer.

58. While the reaction of PW-8 Achintya Sarkar is  

understandable, what is not understandable is the  

conduct of his family. The members of his family seem to  

have not taken any action to find out the whereabouts of  

PW-8 Achintya Sarkar after they came to know about the  

murder of Gour Chandra Sarkar.  We would imagine that  

on coming to know of the murder, the primary concern of  

the family would have been the safety of PW-8 Achintya  

Sarkar.  However, no efforts appear to have been made to  

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locate his whereabouts or to search for him or even to  

inform the police about his disappearance.

59. However, merely because PW-8 Achintya Sarkar  

and his family acted a little strangely would not  

necessarily lead to the conclusion that this witness  

should not be believed. There is nothing on record to  

suggest that he was not at the place of occurrence when  

his father Gour Chandra Sarkar was attacked.  There is  

also nothing on record which could lead to any inference  

or conclusion that PW-8 Achintya Sarkar made up a  

story about the attack on his father by Surajit Sarkar.

60. It is true that there is some discrepancy or some  

gap in the whereabouts of PW-8 Achintya Sarkar  

between the time of the attack and his returning home at  

2.00 a.m. on 22nd March 1995 but that by itself is not  

enough to discredit this witness, more so when he was  

not asked any question on his whereabouts.

61. Also, this discrepancy does not destroy the  

substratum of the case of the prosecution and therefore  

there is no reason to throw it out on this ground. What is  

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a minor discrepancy has recently been dealt with in  

Syed Ahmed v. State of Karnataka, (2012) 8 SCC  

527 (authored by one of us, Lokur, J.) and the view  

expressed therein need not be repeated.

62. We find that PW-8 Achintya Sarkar successfully  

withstood his cross-examination and we agree with the  

Trial Court and the High Court that he was a credible  

witness who ought to be believed when he says that he  

was at the place of occurrence and that he saw his father  

Gour Chandra Sarkar being attacked by the Surajit  

Sarkar.  

(4) Acquittal of co-accused:

63. The final contention of learned counsel for  

Surajit Sarkar was that since five of the accused persons  

were given the benefit of doubt there is no reason why he  

should not be given the benefit of doubt.

64. In Gurcharan Singh v. State of Punjab, AIR  

1956 SC 460 this Court held, in a case where some  

accused persons were acquitted and some others were  

convicted, as follows:

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“The highest that can be or has been said on behalf of  the appellants in this case is that two of the four  accused have been acquitted, though the evidence  against them, so far as the direct testimony went, was  the same as against the appellants also; but it does  not follow as a necessary corollary that because the  other two accused have been acquitted by the High  Court the appellants also must be similarly  acquitted.”

65. Learned counsel for the State drew our attention  

to Komal in which it was held that merely because some  

of the accused persons have been acquitted by being  

given the benefit of doubt does not necessarily mean that  

all the accused persons must be given the benefit of  

doubt.  It was observed that:  

“….the complicity of two accused persons who were  armed with guns having been doubted by the High  Court itself, they have already been acquitted which  cannot in any manner affect the prosecution case so  far as the appellants are concerned against whom the  witnesses have consistently deposed and their evidence  has been found to be credible.”  

66. Similarly, in Gangadhar Behera reliance was  

placed on Gurcharan Singh and it was held:

“Merely because some of the accused persons have  been acquitted, though evidence against all of them, so  far as direct testimony went, was the same does not  lead as a necessary corollary that those who have been  convicted must also be acquitted. It is always open to a  

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court to differentiate the accused who had been  acquitted from those who were convicted.”

67. Gangadhar Behera was cited with approval  

somewhat recently in Prathap v. State of Kerala,  

(2010) 12 SCC 79.

68. We agree that Surajit Sarkar cannot be absolved  

of his involvement in the death of Gour Chandra Sarkar  

merely because the other accused persons were either  

not identified by the eyewitnesses or had no role to play  

in the attack on Gour Chandra Sarkar. There is the  

cogent and reliable evidence of PW-8 Achintya Sarkar to  

hold that Surajit Sarkar attacked Gour Chandra Sarkar  

which ultimately resulted in his death.  The contention  

of learned counsel for Surajit Sarkar is rejected.

69. We may mention that learned counsel for Surajit  

Sarkar submitted that there was a delay in forwarding  

the FIR to the concerned Magistrate.  Since no  

foundation has been laid for this contention nor was this  

contention urged either before the Trial Court or before  

the High Court we see no reason to entertain it at this  

stage.   

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Is it a case of murder:

70. What now remains to be considered is whether  

Surajit Sarkar intended to murder Gour Chandra Sarkar  

or is it a case of culpable homicide not amounting to  

murder?  

71. Given the nature of injuries, it is difficult to  

accept the view that Surajit Sarkar intended to cause  

the death of Gour Chandra Sarkar or that the injuries  

were so imminently dangerous that they would, in all  

probability, cause death. The murder of Gour Chandra  

Sarkar would, therefore, be ruled out. Nevertheless, the  

injuries were quite serious and inflicted by Surajit  

Sarkar on Gour Chandra Sarkar’s head with an iron rod,  

as stated by PW-8 Achintya Sarkar. We can surely credit  

Surajit Sarkar with the knowledge that if a person is hit  

with an iron rod on the head, then the act is likely to  

cause the death of the victim. That being so, in our  

opinion, it would be more appropriate to hold Surajit  

Sarkar guilty of an offence of culpable homicide not  

amounting to murder. Since we attribute to him the  

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knowledge of his actions, he should be punished under  

the second part of Section 304 of the IPC.   

Conclusion:

72. Accordingly, we set aside the conviction of  

Surajit Sarkar for the offence of the murder of Gour  

Chandra Sarkar. However, we hold him guilty of an  

offence punishable under the second part of Section 304  

of the IPC. He is sentenced to undergo rigorous  

imprisonment for a period of 10 (ten) years. The fine and  

default sentence awarded by the Trial Court are  

maintained.

73. The appeal is disposed of on the above terms.

                 .………………………. J.          (Swatanter Kumar)

….……………………. J. (Madan B. Lokur)

New Delhi; December 4, 2012

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