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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 905 OF 2009

Yanab Sheikh @ Gagu … Appellant

Versus

State of West Bengal …  Respondent

J U D G M E N T

Swatanter Kumar, J.

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

Calcutta High Court dated 21st November, 2006 in exercise of  

its  criminal  appellate  jurisdiction  vide  which  the  High  Court  

affirmed the judgment of conviction and the order of sentence  

passed by the Trial Court.   

2. Before  dealing  with  the  rival  contentions  raised  by  the  

learned counsel appearing for the parties, it is necessary for the  

Court to notice the case of the prosecution in brief.  On 19th  

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December,  1984,  amongst  other  villagers  of  village  Lauria,  

Yamin  PW8 and Mohammed Sadak Ali, PW1 hired a pump set of  

one  Humayun  Kabir,  who was  examined  as  PW7,  for  taking  

water from the pond known as Baro Lauria Pukur for irrigating  

their respective lands.  PW8, Yamin and others drew water from  

the said pond.  In the afternoon, when Mohammed Sadak Ali,  

PW1, and his  brother,  the deceased Samim Ali,  went on the  

bank of the said tank for drawing water through the said pump,  

accused  Yanab  arrived  there.   He  had  an  altercation  with  

Mohammed Sadak Ali and Samim Ali which related to drawing  

of water from the tank.  Though, PW1 had assured Yanab that  

they  would stop taking  water  from the  Pukur  within  a  short  

time, yet Yanab forcibly switched off the pump machine.  This  

further  aggravated  their  altercation  and  accused  started  

abusing  them.   Thereafter,  accused  Yanab  suddenly  went  

running to his house and came back within a few minutes along  

with  the  other  accused  named  Najrul.   Yanab  then  threw a  

bomb  aiming  at  Samim  Ali  which  hit  him  on  his  chest  and  

exploded.  As a result thereof, Samim fell onto the ground, his  

clothes got burnt and he died instantaneously.  It is also the  

case of the prosecution that Najrul had a cloth bag in his hand  

and Yanab took out the bomb from that cloth bag and threw the  2

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same towards Samim.  Immediately after the incident, both the  

accused  persons  fled  away.   With  the  help  of  the  villagers,  

Mohammed  Sadak  Ali  took  Samim  to  his  house  which  was  

stated to be at a short distance from the bank of the tank.  The  

information  with  regard  to  the  incident  was  given  to  the  

Rampurhat Police Station through telephone.   SI R.P. Biswas,  

PW14, along with SI Samit Chatterjee, PW15, arrived at village  

Lauria  around  10.00  p.m.  on  19th December,  1984.   The  

telephonic  information,  on the  basis  of  which the  G.D.  Entry  

No.708,  Ex.7,  was  lodged  was  made  by  PW6  from a  phone  

booth.  After these officers arrived, PW1, Sadak Ali submitted a  

written complaint,  Ex.1,  addressed to the Officer  Incharge of  

Rampurhat  Police  Station.   SI,  R.P.Biswas,  then  made  an  

endorsement,  Ex.1/1  and  sent  the  same  through  Constable  

Sunil  Dutta  to  Rampurhat  Police  Station  for  starting  a  case  

under Sections 148/149/324/326/302 of the Indian Penal Code  

(for short ‘IPC’) and 9(b)(ii) of the Indian Explosives Act.  Ex.1  

was received at the police station by SI B.Roy.  Upon this, a  

formal  FIR,  Ex.1/3,  was registered  and  the  investigation was  

started by PW14.  He prepared the Inquest Report, Ex.2, over  

the dead body of the deceased on identification of the same by  

his brother, PW2.  The sketch map of the place of occurrence,  3

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Ex.8, was prepared. The pump set was seized vide seizure list  

Ex.5  and  a  Zimma  Nama  Ex.6  was prepared.    PW14  also  

collected the post mortem report of the deceased from the Sub-

Divisional Hospital, Rampurhat on 21st January, 1985.  Because  

of transfer of PW14, the investigation of the case was taken up  

by  SI,  N.R.  Biswas.   Later  on  the  investigation  was  also  

completed by PW15, S. Chatterjee,  who had filed the charge  

sheet.   The  accused  persons  faced  the  trial  for  the  above-

mentioned offences before the Court of Sessions, which by a  

detailed  judgment  dated  18th September,  1992,  held  them  

guilty  of  the  offences  and  punished  the  accused  Yanab  as  

follows:

“I, therefore, hold and find accused Yanob not  guilty to the charge under section 324 of the  I.P.C. and he is acquitted of that charge.

As regards the charge under section 9(b) (ii)  of  the  I.E.  Act  there  is  no  evidence  that  accused  Nazrul  had  in  his  possession  bombs  which  were  explosives  in  nature  without  any  license or permit and as such he is found not  guilty to the said charge and is acquitted.

My findings are that accused Yanob threw  the  bomb  which  exploded  on  the  chest  of  Samim causing his instantaneous death and as  such  it  must  be  held  that  Yanob  was  in  possession of explosive substance without any  license or permit.

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Exts. 9 and 9/1 the reports of the Deputy  Controller of Explosives go to establish that the  remnants of the exploded bomb that was seized  by PW14 and sent to him by C.S. witness NO.23  in  sealed  packets  contained  an  explosive  mixture of chlorate of potassium and sulphate  of arsenic and such a bomb would be capable of  endangering human life on explosion and it has  been established from the evidence on record  that it has not only endangered human life but  brought a premature end of the life of a human  being  and  as  such  I  hold  and  find  accused  Yanob guilty to the charge under section 9(b)  (ii)  of  the  I.E.  Act  and  he  is  convicted  thereunder.

In  the  result  the  prosecution  case  succeeds in part.  Accused Nazrul is found not  guilty to both the charges brought against him  and is acquitted under section 235(1) Cr.P.C.

Accused Yanob Sk  is  found guilty  to  the  charge u/s 302 of the I.P.C. and under section  9(b)(ii)  of  the  I.E.  Act  and is  convicted under  both  the  counts  of  charges.   He  is,  however,  found  not  guilty  to  the  charge  under  section  324 I.P.C. and is acquitted of that charge.

Sd/- P.K. Ghosh, Addl. Sessions Judge,

       Birbhum at Rampurhat, 18th September, 1992.

Heard  accused  Yanob  on  the  point  of  sentence.  The accused refuses to say anything  or  to  make  any  submission  on  the  point  of  sentence.  Since no lesser than imprisonment  for  life  can  be  imposed  in  an  offence  under  section  302  I.P.C.,  the  accused  Yanob  Sk  is  sentenced  to  imprisonment  for  life  for  the  conviction under section 302 I.P.C. No separate  sentence  is  being  passed  for  the  conviction  under Section 9(b)(ii) of the I.E. Act.

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Let a copy of this judgment of conviction  and sentence be  supplied  free  of  cost  to  the  convict accused Yanob Sk. as early as possible.

Sd/- P.K. Ghosh, Addl. Sessions Judge,

       Birbhum at Rampurhat, 18th September,  

1992.”

3. Aggrieved  from  the  above  judgment,  the  convicted  

accused,  Yanab Sheikh,  preferred an appeal  before the High  

Court  which  came  to  be  dismissed  vide  the  impugned  

judgment, giving rise to the present appeal.   While raising a  

challenge to the impugned judgment, the learned counsel for  

the appellant contended:

1.  Ex.1/3 is a second FIR of the occurrence.  Ex.7, the G.D.  

Entry No. 708, lodged at 2105 hrs. on 19th December, 1984  

at  Police Station Rampurhat  by PW6 is,  in fact,  the FIR.  

The second FIR, Ex.1/3, is neither permissible in law and in  

fact, is hit by the provisions of Section 162 of the Cr.P.C.  

(for short ‘Code’).  Thus, the entire case of the prosecution  

must fall to the ground.

2. The copy of the FIR was sent to the Court of SDJM after ten  

days of the date of occurrence and, therefore, is violative  

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of  Section  157(1)  of  the  Code,  on  which  account  the  

appellant would be entitled to a benefit.

3. The  prosecution  has  not  examined  all  the  witnesses  

without  specifying  any  reason.   Therefore,  adverse  

inference should be drawn against the prosecution. There  

are  material  discrepancies  and  variations  in  the  

statements of the witnesses.  Even the injured witnesses  

were not examined.  For these reasons, the case of the  

prosecution must fail.

4. The acquittal of Najrul by the Trial Court should necessarily  

result in acquittal of the present appellant as well, because  

without  attributing  and  proving  the  role  of  Najrul,  the  

appellant  could  not  be  held  guilty  of  committing  any  

offence.

5. Lastly, it is contended that the offence squarely falls under  

Section 304, Part II of the IPC inasmuch as it was a fight  

that took place all of a sudden and resulted in the death of  

the deceased.  There was no pre-meditation or intent to  

murder the deceased.

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4. To  the  contra,  it  is  contended  by  the  learned  counsel  

appearing for the State that the accused was convicted on 18 th  

September, 1992 in the present case.  He was granted bail on  

29th September, 1992 and was convicted for life in another case  

under  Sections 302/34 IPC  in  Case No. 44/1993 by the High  

Court.   PW1,  PW5  and  PW6  are  the  eye-witnesses  to  the  

occurrence and the prosecution has been able to prove its case  

beyond any reasonable doubt.  The delay in lodging the report  

was primarily for the reason that the person had walked to the  

post  office  which was at  quite  a  distance  and then  made  a  

phone call to the police station.  PW14 had come on the basis of  

the call  made by PW6.  Thus, there was neither unexplained  

delay in making the call nor in lodging the FIR.  It is also the  

contention that Ex.7, the GD Entry is not an FIR but is a mere  

intimation without any details and, therefore, the provisions of  

Section 162 of the Code are not attracted in the present case.

5. First and foremost, we may examine the question whether  

FIR,  Ex.1/3,  can  be  treated  by  the  Courts  as  the  First  

Information Report and if so, what is the effect of Ex.7 in law,  

keeping  in  view the  facts  and  circumstances  of  the  present  

case.  It  is clearly established on record that  the occurrence  

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took  place  in  the  evening  of  19th December,  1984.   The  

occurrence was a result of an altercation and the abuses hurled  

at  PW1  and  the  deceased  by  Yanab  near  the  water  tank.  

Immediately upon the altercation, the accused had ran to his  

house and returned along with Najrul and threw a bomb at the  

deceased.   PW1, brother  of the deceased,  PW5, Basera Bibi,  

wife  of  the  deceased  and  PW6  Abdus  Sukur,  cousin  of  the  

deceased are the eye-witnesses and they said that they had  

seen the appellant throwing a bomb upon the deceased and  

that the accused, Yanab, had taken the said bomb from the bag  

of Najrul.   

6. After the incident, PW6 had gone to the Duni Gram Post  

Office and  informed  the  police  about  the  incident  over  the  

telephone.   He  informed  the  police  that  there  had  been  a  

murder in the village and they should come.  When the police  

arrived,  he  was in  the  village and he met  the  police at  the  

house of the deceased Samim.  This phone call was taken and  

the G.D. Entry was registered by PW14, SI R.P. Biswas.

7. According to PW14, on 19th December, 1984 at about the  

0805 hours, he had received a telephonic information and noted  

the information  in General Diary No. 708 and thereafter he had  

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proceeded  towards  village  Lauria  along  with  PW15,  SI  S.  

Chaterjee.   Ex.7  had  been  recorded  by  PW14  and  he  had  

received the written complaint by PW1, Sadek Ali, and the same  

was submitted to him after he had reached the village Lauria  

and was addressed to the Officer In-charge, Rampurath Police  

Station.   This  written  complaint  was  Ex.1.    The  cumulative  

effect of the statements of PW1, PW6 and PW14 clearly indicate  

that Ex.7 was not the First Information Report of the incident.  It  

gave no details of the commission of the crime as to who had  

committed the crime and how the occurrence took place.  A  

First  Information  Report  normally  should  give  the  basic  

essentials in relation to the commission of a cognizable offence  

upon which the Investigating Officer can immediately start his  

investigation in accordance with the provisions of Section 154,  

Chapter XII of the Code.  In fact, it was only upon reaching the  

village  Lauria  that  PW14  got  particulars  of  the  incident  and  

even the names of the persons who had committed the crime.  

A written complaint with such basic details was given by PW1  

under  his  signatures  to  the  police  officer,  who  then  made  

endorsement  as  Ex.1/1 and registered the FIR as Ex.1/3.   In  

these circumstances, we are unable to accept the contention  

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and  that  Ex.1/3  was  a  second  FIR  for  the  same  

incident/occurrence  which  was  not  permissible  and  was  

opposed to the provisions of the Section 162 of the Code.

8. In  the  case  of  Manu  Sharma   v.   State  (NCT of  Delhi)  

(2010) 6 SCC 1, a Bench of this Court took the view that cryptic  

telephone messages could not be treated as FIRs as their object  

is  only to  get  the police to the  scene of offence and not  to  

register the FIR.  The said intention can also be clearly culled  

out from the bare reading of Section 154 of the Code which  

states that the information if given orally should be reduced to  

writing, read over to the informant, signed by the informant and  

a copy of the same be given to him, free of cost.  Similar view  

was also expressed by a Bench of this Court in the case of State  

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

where the Court observed as under: -

“10. Certain facts have been rightly noted by  the High Court. Where the information is only  one which required the police to move to the  place of occurrence and as a matter of fact  the  detailed  statement  was  recorded  after  going  to  the  place  of  occurrence,  the  said  statement is to be treated as FIR. But where  some  cryptic  or  anonymous  oral  message  which  did  not  in  terms  clearly  specify  a  cognizable offence cannot be treated as FIR.  The mere fact that  the information was the  

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first in point of time does not by itself clothe it  with the character of FIR. The matter has to  be considered in the background of Sections  154  and  162  of  the  Code  of  Criminal  Procedure,  1973  (in  short  “the  Code”).  A  cryptic  telephonic  message  of  a  cognizable  offence received by the police agency would  not constitute an FIR.”

9. Thus,  the  purpose  of  telephone  call  by  PW6,  when  

admittedly he gave no details, leading to the recording of Entry,  

Ex.7,  would  not  constitute  the  First  Information  Report  as  

contemplated  under  Section  154  of  the  Code.   The  reliance  

placed by the learned counsel appearing for the appellant upon  

the  provisions of Section 162 of  the  Code,  is  thus,  not  well-

founded.  Even in the case of Ravishwar Manjhi & Ors.  v. State   

of Jharkhand, (2008) 16 SCC 561, another Bench of this Court  

took the view that “..we are not oblivious to the fact that a mere  

information received by a police officer without any details as  

regards the identity of the accused or the nature of the injuries  

caused to the victim, name of the culprits, may not be treated  

as  FIR,  but  had the  same been produced,  the nature of the  

information  received  by  the  police  officer  would  have  been  

clear.....”

10. On this principle of law, we have no hesitation in stating  

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same  persons  and  with  similarity  of  scope  of  investigation,  

cannot be registered and by applying the test of similarity, it  

may then be hit by the proviso to Section 162 of the Code.

11. In  the  case  of  Anju  Chaudhary v.  State  of  U.P.  &  Anr.  

[Criminal Appeal @ SLP(Crl.) No. 9475 of 2008 decided on the  

6th December, 2012], this Court held :

“13. Section  154  of  the  Code  requires  that  every information relating to the commission of  a  cognizable  offence,  whether  given  orally  or  otherwise  to  the  officer  in-charge  of  a  police  station,  has  to  be  reduced  into  writing  by or  under the  direction of such officer and shall be  signed by the person giving such information.  The  substance  thereof  shall  be  entered  in  a  book to be kept by such officer in such form as  may be prescribed by the State Government  in  this behalf.

14. A  copy  of  the  information  so  recorded  under  Section  154(1)  has  to  be  given  to  the  informant free of cost.  In the event of refusal to  record such  information,  the  complainant  can  take recourse to the remedy available to him  under  Section  154(3).   Thus,  there  is  an  obligation  on  the  part  of  a  police  officer  to  register  the  information  received  by  him  of  commission of a  cognizable offence.  The two- fold obligation upon such officer is that (a) he  should receive such information and (b) record  the same as prescribed.  The language of the  section  imposes  such  imperative  obligation  upon the  officer.   An  investigating  officer,  an  officer-in-charge  of  a  police  station  can  be  directed to conduct an investigation in the area  under  his  jurisdiction  by  the  order  of  a  

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Magistrate  under  Section  156(3)  of  the  Code  who  is  competent  to  take  cognizance  under  Section 190.  Upon such order, the investigating  officer shall conduct investigation in accordance  with the provisions of Section 156 of the Code.  The  specified  Magistrate,  in  terms  of  Section  190 of the Code, is entitled to take cognizance  upon  receiving  a  complaint  of  facts  which  constitute such offence; upon a police report of  such facts; upon information received from any  person other than a police officer, or upon his  own  knowledge,  that  such  offence  has  been  committed.

15. On the plain construction of the language  and scheme of Sections 154, 156 and 190 of  the Code, it cannot be construed or suggested  that there can be more than one FIR about an  occurrence.   However,  the  opening  words  of  Section  154  suggest  that  every  information  relating to commission of  a cognizable  offence  shall  be  reduced  to  writing  by  the  officer  in- charge  of  a  Police  Station.   This  implies  that  there  has  to  be  the  first  information  report  about  an  incident  which  constitutes  a  cognizable offence.  The purpose of registering  an  FIR  is  to  set  the  machinery  of  criminal  investigation into motion, which culminates with  filing  of  the  police  report  in  terms  of  Section  173(2) of the Code.  It will, thus, be appropriate  to follow the settled principle that there cannot  be  two FIRs  registered  for  the  same offence.  However,  where  the  incident  is  separate;  offences are similar or different, or even where  the subsequent crime is of such magnitude that  it does not fall within the ambit and scope of the  FIR recorded first, then a second FIR could be  registered.   The  most  important  aspect  is  to  examine the inbuilt safeguards provided by the  legislature in the very language of Section 154  of the Code.   These safeguards can be safely  deduced  from  the  principle  akin  to  doubt  jeopardy, rule of fair investigation and further to  

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prevent  abuse  of  power  by  the  investigating  authority of the police.   Therefore, second FIR  for the same incident cannot be registered. Of  course,  the  Investigating  Agency  has  no  determinative  right.   It  is  only  a  right  to  investigate in accordance with the provisions of  the Code.  The filing of report upon completion  of  investigation,  either  for  cancellation  or  alleging commission of an offence, is a matter  which once filed before the court of competent  jurisdiction attains  a  kind of  finality  as  far  as  police  is  concerned,  may be in  a  given case,  subject to the right of further investigation but  wherever the investigation has been completed  and a person is found to be prima facie guilty of  committing  an  offence  or  otherwise,  reexamination by the investigating agency on  its  own  should  not  be  permitted  merely  by  registering another FIR with regard to the same  offence.   If  such  protection  is  not  given  to  a  suspect,  then  possibility  of  abuse  of  investigating  powers  by  the  Police  cannot  be  ruled out.  It is with this intention in mind that  such interpretation should be given to Section  154 of the Code, as it would not only further the  object  of  law  but  even  that  of  just  and  fair  investigation.  More so, in the backdrop of the  settled  canons  of  criminal  jurisprudence,  re- investigation or de novo investigation is beyond  the  competence  of  not  only  the  investigating  agency but even that of the learned Magistrate.  The courts  have taken  this  view primarily  for  the  reason  that  it  would  be  opposed  to  the  scheme  of  the  Code  and  more  particularly  Section 167(2) of the Code.  [Ref.  Rita Nag v.  State of West Bengal [(2009) 9 SCC 129] and  Vinay Tyagi v. Irshad Ali @ Deepak & Ors. (SLP  (Crl) No.9185-9186 of 2009 of the same date).

16. It  has  to  be  examined  on  the  merits  of  each  case whether  a  subsequently  registered  FIR is a second FIR about the same incident or  

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offence or is based upon distinct and different  facts and whether its scope of inquiry is entirely  different or not.  It will not be appropriate for  the  Court  to  lay  down  one  straightjacket  formula uniformly applicable to all cases.  This  will always be a mixed question of law and facts  depending upon the merits of a given case.  In  the  case  of  Ram  Lal  Narang v.  State  (Delhi  Administration) [(1979) 2 SCC 322], the Court  was concerned with the registration of a second  FIR in relation to the same facts but constituting  different offences and where ambit and scope  of  the  investigation  was  entirely  different.  Firstly,  an  FIR  was  registered  and  even  the  charge-sheet filed was primarily concerned with  the  offence  of  conspiracy  to  cheat  and  misappropriation by the two accused.  At that  stage, the investigating agency was not aware  of  any  conspiracy  to  send  the  pillars  (case  property)  out of the country.   It  was also not  known that some other accused persons were  parties to the conspiracy to obtain possession of  the pillars from the court, which subsequently  surfaced in London.  Earlier, it was only known  to the Police that the pillars were stolen as the  property within the meaning of Section 410 IPC  and were in possession of the accused person  (Narang  brothers)  in  London.   The  Court  declined  to  grant  relief  of  discharge  to  the  petitioner  in  that  case  where  the  contention  raised was that entire investigation in the FIR  subsequently instituted was illegal as the case  on same facts was already pending before the  courts  at  Ambala  and  courts  in  Delhi  were  acting without jurisdiction. The fresh facts came  to  light  and  the  scope  of  investigation  broadened  by  the  facts  which  came  to  be  disclosed subsequently during the investigation  of the first FIR.  The comparison of the two FIRs  has shown that the conspiracies were different.  They were not identical and the subject matter  was different.   The Court observed that  there  was a statutory duty upon the Police to register  

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every information relating to cognizable offence  and the second FIR was not hit by the principle  that it is impermissible to register a second FIR  of the same offence.  The Court held as under :

“20.Anyone  acquainted  with  the  day-to- day working of the criminal courts will be  alive  to  the  practical  necessity  of  the  police  possessing  the  power  to  make  further  investigation  and  submit  a  supplemental report. It is in the interests  of both the  prosecution and the  defence  that the police should have such power. It  is  easy  to  visualize  a  case  where  fresh  material  may come to light  which would  implicate persons not previously accused  or absolve persons already accused. When  it comes to the notice of the investigating  agency that a person already accused of  an offence has a good alibi,  is it  not the  duty  of  that  agency  to  investigate  the  genuineness of the plea of alibi and submit  a  report to the Magistrate? After  all,  the  investigating  agency  has  greater  resources at its command than a private  individual.  Similarly,  where  the  involvement  of  persons  who  are  not  already accused comes to the notice of the  investigating  agency,  the  investigating  agency  cannot  keep  quiet  and  refuse  to  investigate the fresh information. It is their  duty to investigate and submit a report to  the  Magistrate  upon  the  involvement  of  the other persons. In either case, it is for  the  Magistrate  to decide upon his  future  course of action depending upon the stage  at which the case is before him. If he has  already taken cognizance of the  offence,  but has not proceeded with the enquiry or  trial, he may direct the issue of process to  persons freshly discovered to be involved  and deal with all  the accused in a single  enquiry or trial. If the case of which he has  

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previously  taken  cognizance  has  already  proceeded to some extent,  he  may take  fresh cognizance of the offence disclosed  against  the  newly  involved  accused  and  proceed with the case as a separate case.  What  action  a  Magistrate  is  to  take  in  accordance with the provisions of the CrPC  in such situations is a matter best left to  the  discretion  of  the  Magistrate.  The  criticism that a further investigation by the  police would trench upon the proceeding  before the court is really not of very great  substance, since whatever the police may  do, the final discretion in regard to further  action is with the Magistrate. That the final  word  is  with  the  Magistrate  is  sufficient  safeguard  against  any  excessive  use  or  abuse of the power of the police to make  further  investigation.  We  should  not,  however,  be  understood  to  say  that  the  police  should  ignore  the  pendency  of  a  proceeding before a court and investigate  every fresh fact that comes to light as if no  cognizance had been taken by the Court of  any offence. We think that in the interests  of the independence of the magistracy and  the judiciary, in the interests of the purity  of  the  administration  of  criminal  justice  and in the interests of the comity of the  various agencies and institutions entrusted  with  different  stages  of  such  administration,  it  would  ordinarily  be  desirable that the police should inform the  court and seek formal permission to make  further  investigation  when  fresh  facts  come to light.

21. As observed by us earlier, there was no  provision  in  the  CrPC,  1898  which,  expressly  or  by  necessary  implication,  barred  the  right  of  the  police  to  further  investigate  after  cognizance  of  the  case  had been taken by the Magistrate. Neither  

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Section  173  nor  Section  190  lead  us  to  hold that the power of the police to further  investigate  was  exhausted  by  the  Magistrate  taking  cognizance  of  the  offence.  Practice,  convenience  and  preponderance  of  authority,  permitted  repeated  investigations  on  discovery  of  fresh  facts.  In  our  view,  notwithstanding  that a Magistrate had taken cognizance of  the offence upon a police report submitted  under Section 173 of the 1898 Code, the  right  of  the  police  to  further  investigate  was  not  exhausted  and  the  police  could  exercise such right as often as necessary  when  fresh  information  came  to  light.  Where the police desired to make a further  investigation,  the  police  could  express  their regard and respect for the court by  seeking  its  formal  permission  to  make  further investigation.

22. As in the present case, occasions may  arise when a second investigation started  independently of the first may disclose a  wide  range  of  offences  including  those  covered by the first  investigation.  Where  the  report  of  the  second investigation  is  submitted to a Magistrate other than the  Magistrate  who  has  already  taken  cognizance of the first case, it is up to the  prosecuting  agency  or  the  accused  concerned  to  take  necessary  action  by  moving the appropriate superior court to  have  the  two  cases  tried  together.  The  Magistrates  themselves  may  take  action  suo motu. In the present case, there is no  problem since the earlier  case has since  been  withdrawn  by  the  prosecuting  agency.  It  was  submitted  to  us  that  the  submission of a charge-sheet to the Delhi  court and the withdrawal of the case in the  Ambala court amounted to an abuse of the  process of the court. We do not think that  

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the  prosecution  acted  with  any  oblique  motive.  In  the  charge-sheet  filed  in  the  Delhi  court,  it  was  expressly  mentioned  that Mehra was already facing trial in the  Ambala Court and he was, therefore, not  being  sent  for  trial.  In  the  application  made to the Ambala Court under Section  494 CrPC, it was expressly mentioned that  a case had been filed in the Delhi  Court  against Mehra and others and, therefore, it  was not necessary to prosecute Mehra in  the  Ambala  court.  The  Court  granted  its  permission for the withdrawal of the case.  Though  the  investigating  agency  would  have  done  better  if  it  had  informed  the  Ambala Magistrate and sought his formal  permission  for  the  second  investigation,  we  are  satisfied  that  the  investigating  agency did not act out of any malice. We  are also satisfied that there has been no  illegality. Both the appeals are, therefore,  dismissed.”

17. In  the  case  of  M.  Krishna v.  State  of  Karnataka [(1999) 3 SCC 247], this Court took  the view that even where the article of charge  was similar but for a different period, there was  nothing in the Code to debar registration of the  second FIR.  The Court opined that the FIR was  registered for an offence under Sections 13(1) (e)  and 13(2)  of the  Prevention of Corruption  Act related to the period 1.8.1978 to 1.4.1989  and the investigation culminated into filing of a  report which was accepted by the Court.  The  second FIR and subsequent proceedings related  to a later period which was 1st August, 1978 to  25th July, 1978 under similar charges.   It was  held that  there was no provision which debar  the filing of a subsequent FIR. 18. In  the  case  of  T.T.  Antony v.  State  of  Kerala [(2001) 6 SCC 181], the Court explained  that an information given under sub-Section (1)  

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of Section 154 of the Code is commonly known  as the First Information Report (FIR).  Though  this term is not used in the Court, it is a very  important document.  The Court concluded that  second FIR for the same offence or occurrence  giving rise to one or more cognizable offences  was  not  permissible.   In  this  case,  the  Court  discussed  the  judgments  in  Ram  Lal  Narang  (supra) and  M. Krishna (supra) in some detail,  and while quashing the subsequent FIR held as  under :

“23. The right of the police to investigate  into  a  cognizable  offence  is  a  statutory  right  over  which  the  court  does  not  possess any supervisory jurisdiction under  CrPC. In  Emperor v.  Khwaja Nazir Ahmad  the Privy Council spelt out the power of the  investigation of the police, as follows:  

“In India, as has been shown, there is  a  statutory right  on the  part  of the  police  to  investigate  the  circumstances  of  an  alleged  cognizable  crime  without  requiring  any  authority  from  the  judicial  authorities,  and  it  would,  as  Their  Lordships  think,  be  an  unfortunate  result if it should be held possible to  interfere  with  those  statutory  rights  by  an  exercise  of  the  inherent  jurisdiction of the court.”

24.  This  plenary  power  of  the  police  to  investigate  a  cognizable  offence  is,  however,  not  unlimited.  It  is  subject  to  certain well-recognised limitations. One of  them, is pointed out by the Privy Council,  thus:  

“[I]f  no  cognizable  offence  is  disclosed, and still more if no offence  of  any  kind  is  disclosed,  the  police  

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would have no authority to undertake  an investigation….”

25.  Where  the  police  transgresses  its  statutory power of investigation the High  Court under Section 482 CrPC or Articles  226/227 of the Constitution and this Court  in  an  appropriate  case  can  interdict  the  investigation  to  prevent  abuse  of  the  process of the court or otherwise to secure  the ends of justice.

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35.  For  the  aforementioned  reasons,  the  registration  of  the  second  FIR  under  Section 154 CrPC on the basis of the letter  of the Director General of Police as Crime  No. 268 of 1997 of Kuthuparamba Police  Station is not valid and consequently the  investigation made pursuant thereto is of  no  legal  consequence,  they  are  accordingly  quashed.  We  hasten  to  add  that  this  does  not  preclude  the  investigating agency from seeking leave of  the Court in Crimes Nos. 353 and 354 of  1994 for making further investigations and  filing  a  further  report  or  reports  under  Section 173(8) CrPC before the competent  Magistrate in the said cases. In this view of  the matter, we are not inclined to interfere  with the judgment of the High Court under  challenge insofar as it relates to quashing  of Crime No. 268 of 1997 of Kuthuparamba  Police  Station  against  the  ASP  (R.A.  Chandrasekhar);  in  all  other  aspects  the  impugned judgment of the High Court shall  stand set aside.”

19. The judgment of this Court in  T.T. Antony  (supra)  came  to  be  further  explained  and  clarified by a three Judge Bench of this Court in  the case of Upkar Singh v. Ved Prakash [(2004)  

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13 SCC 292], wherein the Court stated as under  :

“17. It  is  clear  from  the  words  emphasised  hereinabove  in  the  above  quotation,  this  Court  in  the  case of T.T. Antony v. State of Kerala  has not excluded the registration of a  complaint in the nature of a counter- case from the purview of the Code. In  our  opinion,  this  Court  in  that  case  only held that any further complaint  by  the  same  complainant  or  others  against  the  same  accused,  subsequent  to  the  registration  of  a  case,  is  prohibited  under  the  Code  because  an  investigation  in  this  regard  would  have  already  started  and  further  complaint  against  the  same  accused  will  amount  to  an  improvement on the facts mentioned  in  the  original  complaint,  hence will  be  prohibited  under  Section  162  of  the Code. This prohibition noticed by  this  Court,  in  our  opinion,  does  not  apply  to  counter-complaint  by  the  accused in the first  complaint  or on  his behalf alleging a different version  of the said incident.

18. This Court  in  Kari  Choudhary v.  Sita Devi discussing this aspect of law  held:

“11.  Learned  counsel  adopted  an  alternative  contention  that  once  the  proceedings  initiated  under  FIR  No.  135  ended  in  a  final  report  the  police  had  no  authority  to  register  a  second  FIR  and  number  it  as  FIR  No.  208. Of course the legal position  is that there cannot be two FIRs  against  the  same  accused  in  

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respect  of  the  same  case.  But   when there are rival versions in  respect  of  the  same  episode,  they  would  normally  take  the  shape of two different FIRs and  investigation can be carried on  under both of them by the same  investigating agency.  Even that  apart,  the  report  submitted  to  the  court  styling  it  as  FIR  No.  208 of 1998 need be considered  as  an  information submitted  to  the  court  regarding  the  new  discovery  made  by  the  police  during  investigation  that  persons  not  named  in  FIR  No.  135  are  the  real  culprits.  To  quash  the  said  proceedings  merely on the ground that final  report had been laid in FIR No.  135  is,  to  say  the  least,  too  technical. The ultimate object of  every investigation is to find out  whether  the  offences  alleged  have been committed and, if so,  who have committed it.”

(emphasis supplied)

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23. Be that as it may, if the law laid  down  by  this  Court  in  T.T.  Antony  case is to be accepted as holding that  a second complaint in regard to the  same  incident  filed  as  a  counter- complaint  is  prohibited  under  the  Code  then,  in  our  opinion,  such  conclusion  would  lead  to  serious  consequences. This will be clear from  the  hypothetical  example  given  hereinbelow  i.e.  if  in  regard  to  a  crime committed by the real accused  he takes the first opportunity to lodge  

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a  false  complaint  and  the  same  is  registered by the jurisdictional police  then  the  aggrieved  victim  of  such  crime will be precluded from lodging  a complaint giving his version of the  incident in question, consequently he  will  be  deprived  of  his  legitimated  right  to  bring  the  real  accused  to  book. This cannot be the purport of  the Code.

24. We have already noticed that in  T.T.  Antony  case this  Court  did  not  consider  the  legal  right  of  an  aggrieved person to file counterclaim,  on the contrary from the observations  found in the said judgment it clearly  indicates  that  filing  a  counter- complaint is permissible.

25. In the instant case, it is seen in  regard  to  the  incident  which  took  place  on  20-5-1995,  the  appellant  and the first respondent herein have  lodged  separate  complaints  giving  different  versions  but  while  the  complaint  of  the  respondent  was  registered  by  the  police  concerned,  the  complaint  of  the  appellant  was  not so registered, hence on his prayer  the  learned  Magistrate  was justified  in  directing  the  police  concerned to  register  a  case  and  investigate  the  same and report back. In our opinion,  both the learned Additional Sessions  Judge  and  the  High  Court  erred  in  coming  to  the  conclusion  that  the  same is hit by Section 161 or 162 of  the  Code  which,  in  our  considered  opinion, has absolutely no bearing on  the question involved. Section 161 or  162  of  the  Code  does  not  refer  to  registration of a case, it only speaks  

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of a statement to be recorded by the  police  in  the  course  of  the  investigation  and  its  evidentiary  value.”

20. Somewhat  similar  view  was  taken  by  a  Bench  of  this  Court  in  the  case  of  Rameshchandra  Nandlal  Parikh v.  State  of  Gujarat [(2006) 1 SCC 732], wherein the Court  held  that  the  subsequent  FIRs  cannot  be  prohibited on the ground that some other FIR  has been filed against the petitioner in respect  of other allegations filed against the petitioner.

21. This Court  also had the occasion to deal  with  the  situation  where  the  first  FIR  was  a  cryptic  one  and  later  on,  upon  receipt  of  a  proper  information,  another  FIR  came  to  be  recorded  which  was  a  detailed  one.   In  this  case, the court took the view that no exception  could be taken to the same being treated as an  FIR.   In  the  case  of  Vikram   v.   State  of  Maharashtra (2007) 12 SCC 332, the Court held  that it was not impermissible in law to treat the  subsequent  information  report  as  the  First  Information Report and act thereupon.  In the  case  of  Tapinder  Singh  v.  State  of  Punjab  [(1970) 2 SCC 113] also, this Court examined  the question as to whether cryptic, anonymous  and oral messages, which do not clearly specify  the cognizable offence, can be treated as FIR,  and answered the question in the negative.  22. In matters of complaints, the Court in the  case  of  Shiv  Shankar  Singh  v.  State  of  Bihar  (2012) 1 SCC 130 expressed the view that the  law does not prohibit filing or entertaining of a  second  complaint  even  on  the  same  facts,  provided  that  the  earlier  complaint  has  been  decided on the basis of insufficient material or  has  been  passed  without  understanding  the  nature of the complaint or where the complete  

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facts could not be placed before the court and  the  applicant  came  to  know  of  certain  facts  after  the disposal  of the first  complaint.   The  Court  applied  the  test  of  full  consideration of  the complaints on merits.  In paragraph 18, the  Court held as under: -

“18.  Thus, it is evident that the law does  not  prohibit  filing  or  entertaining  of  the  second complaint even on the same facts  provided  the  earlier  complaint  has  been  decided  on  the  basis  of  insufficient  material  or  the  order  has  been  passed  without  understanding  the  nature  of  the  complaint or the complete facts could not  be placed before the court  or  where the  complainant  came  to  know certain  facts  after disposal of the first complaint which  could have tilted the balance in his favour.  However, the second complaint would not  be  maintainable  wherein  the  earlier  complaint  has  been  disposed  of  on  full  consideration  of  the  case  of  the  complainant on merit.”

23. The  First  Information  Report  is  a  very  important  document,  besides  that  it  sets  the  machinery of criminal  law in motion.   It  is  a  very  material  document  on  which  the  entire  case  of  the  prosecution  is  built.  Upon  registration of FIR, beginning of  investigation in  a  case,  collection  of  evidence  during  investigation and formation of the final opinion  is the sequence which results in filing of a report  under Section 173 of the Code.  The possibility  that more than one piece of information is given  to the police officer in charge of a police station,  in respect of the same incident involving one or  more than one cognizable offences, cannot be  ruled  out.   Other  materials  and  information  given  to  or  received  otherwise  by  the  investigating  officer  would  be  statements  

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covered under Section 162 of the Code.   The  Court in order to examine the impact of one or  more  FIRs  has  to  rationalise  the  facts  and  circumstances of each case and then apply the  test of ‘sameness’ to find out whether both FIRs  relate  to  the  same incident  and to  the  same  occurrence, are in regard to incidents which are  two or more parts of the same transaction or  relate  completely  to  two distinct  occurrences.  If  the  answer  falls  in  the  first  category,  the  second  FIR  may  be  liable  to  be  quashed.  However,  in  case  the  contrary  is  proved,  whether  the  version  of  the  second  FIR  is  different and they are in respect of two different  incidents/crimes, the second FIR is permissible,  This  is  the  view  expressed  by  this  Court  expressed  in  the  case  of  Babu  Babubhai  v.  State of Gujarat and Ors. [(2010) 12 SCC 254].  This judgment clearly spells out the distinction  between two FIRs relating to the same incident  and  two  FIRs  relating  to  different  incident  or  occurrences of the same incident etc. 24. To illustrate such a situation, one can give  an  example  of  the  same  group  of  people  committing theft in a similar manner in different  localities  falling  under  different  jurisdictions.  Even if the incidents were committed in close  proximity of time, there could be separate FIRs  and  institution  of  even  one  stating  that  a  number  of thefts  had been committed,  would  not  debar  the  registration  of  another  FIR.  Similarly,  riots  may break  out  because of the  same event but in different areas and between  different people.   The registration of a primary  FIR which triggered the riots would not debar  registration  of  subsequent  FIRs  in  different  areas.   However, to the contra, for the same  event  and offences  against  the  same people,  there cannot be a second FIR.  This Court has  consistently  taken  this  view and  even  in  the  case  of  Chirra  Shivraj  v.  State  of  Andhra   Pradesh [(2010)  14 SCC 444],  the Court  took  

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the view that there cannot be a second FIR in  respect  of  same  offence/event  because  whenever any further information is received by  the  investigating  agency,  it  is  always  in  furtherance of the First Information Report.”

12. In light of the above settled principle,  we are unable to  

accept that Ex.1/3 was a second FIR with regard to the same  

occurrence with similar details and was hit by Section 162 of  

the Code.  On the contrary, Ex.7 was not a First Information  

Report  upon  its  proper  construction  in  law  but  was  a  mere  

telephonic  information  inviting  the  police  to  the  place  of  

occurrence.   Thus,  we  have  no  hesitation  in  rejecting  this  

contention raised on behalf of the appellant.

13. Equally without merit is the contention that the case of the  

prosecution must fail as the copy of the FIR had been sent to  

the  Court  after  ten days of the registration of the  FIR.  The  

learned counsel appearing for the appellant stated that the FIR  

was registered on 19th December,  1984 but  was sent  to  the  

Court of the Magistrate on 29th December, 1984. He pointed out  

the Entry No.793/1984 in this regard. The said G.R. Entry is not  

the entry sending the First Information Report to the Court.  The  

document  shown by the learned counsel  for  the appellant  is  

neither  the  copy  of  the  FIR  nor  does  it  contain  any  29

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acknowledgment of the Court.  It is merely a note of the case  

proceedings  as  to  what  steps  have  been  taken  by  the  

Investigating Officer and was signed by the Investigating Officer  

on 19th December, 1984 itself.  The learned counsel appearing  

for the appellant has not pointed out any other document from  

the record which could substantiate this contention raised on  

behalf of the appellant.  The argument is entirely misconceived  

and is not based on any record of the case and is thus, rejected.

14. The next contention raised on behalf of the appellant that  

we  are  to  deal  with  is  that  the  prosecution  should  have  

examined all  witnesses without exception.  The fact that  the  

prosecution  failed  to  examine  PW8,  PW9  and  PW10  itself  

renders the prosecution story feeble.  It is correct that in the  

present case, PW8, PW9 and PW10 were produced as witnesses  

before the Court.  After recording their introductory part in the  

examination-in-chief, the prosecution gave up these witnesses  

as  having  been  won  over  and  tendered  them  for  cross-

examination.   The  Court  in  its  order  dated  3rd July,  1992  

recorded  this  aspect  and  also  mentioned  that  the  witnesses  

have  been  cross-examined  by  the  defence.   In  view of  this  

position, it cannot be said that the defence of the accused has  

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suffered any prejudice as a result of non-examination of these  

three witnesses.   

15. It  is  interesting  to  note  that  PW8,  Yamin  in  his  cross-

examination  admitted  that  he  was  examined  by  the  

Investigating  Officer  and also  that  he  had  stated  before  the  

daroga  babu  (Investigation  Officer)  that  on  the  date  of  the  

incident, since morning he was drawing water from Baro Lauria  

Pukur through a pump set taken on hire from Humayon Kabir,  

PW7.   No further  questions  were  put  to  this  witness  by  the  

accused.  Whatever he stated in his cross-examination, to some  

extent, supports the case of the prosecution.  It proves that the  

incident  occurred on that  day,  pump was taken on hire  and  

people of the village during the day were drawing water from  

the Baro Lauria Pukur.  It is, thus, clear that non-examination of  

these  witnesses  has  neither  prejudiced  the  case  of  the  

prosecution  nor  will  it  be  of  any  serious  advantage  to  the  

accused. For this purpose, reliance has been placed upon the  

judgment of this Court in the case of Masalti  v.  State of U.P.  

[AIR 1965 SC 202] where the Court held that it is undoubtedly  

the duty of the prosecution to lay before the Court all material  

evidence available which is necessary for unfolding its case.   

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16. In the case of Masalti (supra), the judgment relied upon by  

the learned counsel for the appellant, this Court while making it  

clear that duty lies upon the prosecution to examine all material  

witnesses clearly stated the situation where the witnesses may  

not be examined because they have been won over, terrorised  

and they may not speak the truth before the court.  The court in  

paragraph 12 held as under:

“12. In  the  present  case,  however,  we  are  satisfied  that  there  is  no  substance  in  the  contention  which  Mr  Sawhney  seeks  to  raise  before us. It is not unknown that where serious  offences like the present are committed and a  large  number  of  accused  persons  are  tried,  attempts  are  made  either  to  terrorise  or  win  over  prosecution  witnesses,  and  if  the  prosecutor honestly and bona fide believes that  some of his witnesses have been won over, it  would be unreasonable to insist that he must  tender  such  witnesses  before  the  court.  It  is  undoubtedly the duty of the prosecution to lay  before the court all material evidence available  to it which is necessary for unfolding its case;  but  it  would  be  unsound  to  lay  down  as  a  general  rule  that  every  witness  must  be  examined even though his evidence may not be  very material or even if it is known that he has  been won over or terrorised. In such a case, it is  always open to the  defence to examine such  witnesses as their witnesses and the court can  also  call  such  witnesses  in  the  box  in  the  interest of justice under Section 540 CrPC. As  we  have  already  seen,  the  defence  did  not  examine these witnesses and the Court,  after  due deliberation, refused to exercise its power  

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under Section 540 CrPC. That is one aspect of  the matter which we have to take into account.”

17. Basruddin, admittedly was not produced before the Court.  

The defence also did not summon this witness.  Even if for the  

sake of arguments, it is assumed that Basruddin, if produced  

would have spoken the truth, that necessarily does not imply  

that he would not have supported the case of the prosecution.  

Even if we give some advantage to the case of the defence, for  

the reason that this witness has not been produced, even then  

by virtue of the statement of three other witnesses, PW1, PW5  

and PW6, attendant circumstances and the statement of PW14,  

the prosecution has been able to bring home the guilt of the  

accused.

18. We must  notice  at  this  stage  that  it  is  not  always  the  

quantity but the quality of the prosecution evidence that weighs  

with  the  Court  in  determining  the  guilt  of  the  accused  or  

otherwise.   The  prosecution  is  under  the  responsibility  of  

bringing its case beyond reasonable doubt and cannot escape  

that responsibility.  In order to prove its case beyond reasonable  

doubt,  the  evidence  produced  by  the  prosecution  has  to  be  

qualitative and may not be quantitative in nature.  In the case  

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of Namdeo   v.  State of Maharashtra [(2007) 14 SCC 150], the  

Court held as under:

“28. From the aforesaid discussion, it is clear that  Indian legal system does not insist on plurality of  witnesses. Neither the legislature (Section 134 of  the  Evidence  Act,  1872)  nor  the  judiciary  mandates that there must be particular number  of  witnesses  to  record  an  order  of  conviction  against the accused. Our legal system has always  laid  emphasis  on  value,  weight and  quality of  evidence rather than on  quantity,  multiplicity or  plurality of witnesses. It  is,  therefore, open to a  competent court to fully and completely rely on a  solitary  witness  and  record  conviction.  Conversely, it may acquit the accused in spite of  testimony of several witnesses if it is not satisfied  about the quality of evidence. The bald contention  that no conviction can be recorded in case of a  solitary eyewitness,  therefore,  has no force and  must be negatived.”

19. Similarly, in the case of Bipin Kumar Mondal  v.  State of  

West Bengal (2010) 12 SCC 91, this Court took the view, “..in  

fact, it is not the number and quantity but the quality that is  

material.  The time-honoured principle is that evidence has to  

be weighed and not counted.  The test is whether evidence has  

a ring of truth, is cogent, trustworthy and reliable.”  

20. Facts  of  the  present  case,  seen  in  light  of  the  above  

principles, makes it clear that the Court is primarily concerned  

and  has  to  satisfy  itself  with  regard  to  the  evidence  being  34

Page 35

reliable,  trustworthy  and  of  a  definite  evidentiary  value  in  

accordance  with  law.   PW1,  PW5  and  PW6  have  clearly  

supported  the  case  of  the  prosecution.   Their  statements,  

examined  in  conjunction  with  the  statement  of  PW11,  the  

doctor and the Investigating Officer, PW14, clearly establish the  

case of the prosecution beyond any reasonable doubt.

21. Najrul has been acquitted by the Trial Court.  His acquittal  

was not challenged by the State before the High Court.  In other  

words,  the  acquittal  of  Najrul  has  attained  finality.   While  

recording the acquittal  of the accused Najrul,  the Trial  Court  

recorded the following reasoning:

“P.W.1 and PW-5 at the first blush did not  say  that  accused  Yanob  threw  the  bomb  at  Samim taking the same from the bag of Nazrul  and  PW-1  stated  that  Yanob  came  along  with  Nazrul with bomb in his hand.  He did not say  that Nazrul was carrying any cloth bag (Tholey).

It also transpired from the evidence of PW-5  that the house of Yanob is about 200/250 cubits  away from the  bank  of  the  tank  while  that  of  Nazrul  is  at  a  further  distance of  25/30 cubits  from Yanob’s house.

It might be that Nazrul was in the house of  Yanob or hearing shouts from the bank of the  tank  seeing  Yanob  rushing  back  towards  the  bank of the tank with bombs in his hand he came  close behind him to see what was going on and  at that point of time he might have a had a cloth  

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bag in his hand but that itself will not prove that  he shared the common intention with Yanob to  kill  Samim  specially  when  no  such  cloth  bag  containing  bombs  were  recovered  from  his  possession.

I, therefore, on an appreciation of the entire  evidence on record feel no hesitation to hold and  find accused Yanob guilty to the charge under  section  302  I.P.C.  and  convict  him  thereunder  and hold and find accused Nazrul not guilty to  the charge under section 302 read with section  34 of the Indian Penal Code and he is acquitted  of that charge under section 235(1) Cr.P.C.  So  far as the charge under section 324 I.P.C. against  accused  Yanob  for  causing  voluntary  hurt  to  Mahasin (PW-9) and Basir (C.S. witness No. 10) is  concerned  there  is  no  evidence  that  the  aforesaid persons sustained and/or received any  injury from the splinters of the exploded bomb  thrown  by  accused  Yanob.   Nahasin  when  tendered by the prosecution even during cross  examination did not say that he sustained any  such injury.  Basir as already observed had not  been  examined on the  plea  that  he  has been  gained over  and the  defence did  not  examine  him as its witness to prove that the prosecution  narrative was not correct and the incident took  place in a different manner.  

I,  therefore,  hold  and find  accused Yanob  not guilty to the charge under section 324 of the  I.P.C. and he is acquitted of that charge.”

22. In the present case, we are concerned with the merit or  

otherwise of the above reasoning leading to the acquittal of the  

accused Najrul.  We are primarily concerned with the effect of  

this acquittal upon the case of the appellant-accused.  The Trial  

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Court in its judgment clearly stated that there was direct and  

circumstantial  evidence  against  the  accused  implicating  him  

with the commission of the crime.  Finding the appellant guilty  

of the offence, the Trial Court punished him accordingly.  Where  

the prosecution is able to establish the guilt of the accused by  

cogent, reliable and trustworthy evidence, mere acquittal of one  

accused would not automatically lead to acquittal  of another  

accused.  It  is only where the entire case of the prosecution  

suffers  from  infirmities,  discrepancies  and  where  the  

prosecution is not able to establish its case, the acquittal of the  

co-accused would be of some relevancy for deciding the case of  

the other.  In the case of  Dalbir Singh  v.  State of Haryana  

[(2008) 11 SCC 425], this Court held as under:

“13. Coming to the applicability of the principle  of  falsus in uno, falsus in omnibus, even if major  portion of evidence is found to be deficient, residue  is  sufficient  to  prove  guilt  of  an  accused,  notwithstanding acquittal of large number of other  co-accused  persons,  his  conviction  can  be  maintained. However, where large number of other  persons  are  accused,  the  court  has  to  carefully  screen the evidence:

“51. … It is the duty of court to separate grain  from chaff. Where chaff can be separated from  grain, it would be open to the court to convict an  accused notwithstanding the fact that evidence  has been found to be deficient to prove guilt of  other  accused  persons.  Falsity  of  particular  

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material witness or material particular would not  ruin it  from the beginning to end.  The maxim  falsus  in  uno,  falsus  in  omnibus has  no  application in India and the witnesses cannot be  branded as liars. The maxim falsus in uno, falsus  in  omnibus (false  in  one  thing,  false  in  everything)  has  not  received  general  acceptance in different jurisdiction in India, nor  has this  maxim come to occupy the status of  rule of law. It is merely a rule of caution. All that  it  amounts to, is that  in such cases testimony  may  be  disregarded,  and  not  that  it  must  be  disregarded.  The  doctrine  merely  involves  the  question  of  weight  of  evidence  which  a  court  may apply in a given set of circumstances, but it  is not what may be called ‘a mandatory rule of  evidence’. (See Nisar Ali v. State of U.P.) 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  court  to  differentiate  the  accused  who  had  been  acquitted from those who were convicted. (See  Gurcharan  Singh v.  State  of  Punjab.)  The  doctrine is a dangerous one, specially in India,  for if a whole body of the testimony were to be  rejected,  because  witness  was  evidently  speaking an untruth in some aspect, it is to be  feared  that  administration  of  criminal  justice  would  come  to  a  dead  stop.  Witnesses  just  cannot  help  in  giving  embroidery  to  a  story,  however, true in the main. Therefore, it has to  be appraised in each case as to what extent the  evidence is  worthy of acceptance,  and merely  because in  some respects  the  court  considers  the same to be insufficient for placing reliance  on  the  testimony  of  a  witness,  it  does  not  necessarily follow as a matter of law that it must  be  disregarded  in  all  respects  as  well.  The  evidence  has  to  be  sifted  with  care.  The  aforesaid  dictum  is  not  a  sound  rule  for  the  

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reason that one hardly comes across a witness  whose  evidence  does  not  contain  a  grain  of  untruth  or  at  any  rate  exaggeration,  embroideries or embellishment. (See  Sohrab v.  State of M.P.4 and  Ugar Ahir v.  State of Bihar.)  An  attempt  has  to  be  made  to  in  terms  of  felicitous  metaphor,  separate  grain  from  the  chaff,  truth  from  falsehood.  Where  it  is  not  feasible  to  separate  truth  from  falsehood,  because grain and chaff are inextricably mixed  up,  and  in  the  process  of  separation  an  absolutely new case has to be reconstructed by  divorcing  essential  details  presented  by  the  prosecution  completely  from  the  context  and  the background against  which they are made,  the only available course to be made is discard  the  evidence  in  toto.  (See  Zwinglee  Ariel v.  State  of  M.P. and  Balaka  Singh v.  State  of  Punjab.)  As observed by this Court in  State of  Rajasthan v.  Kalki8 normal  discrepancies  in  evidence  are  those  which  are  due  to  normal  errors of observations, normal errors of memory  due to lapse of time, due to mental disposition  such  as  shock  and  horror  at  the  time  of  occurrence and these are always there however  honest and truthful a witness may be. Material  discrepancies  are  those which  are  not  normal  and  not  expected  of  a  normal  person.  Courts  have  to  label  the  category  to  which  a  discrepancy may be categorised. While normal  discrepancies do not corrode the credibility of a  party's case, material discrepancies do so.”  

23. The cumulative effect of the above discussion is that the  

acquittal  of a  co-accused  per se is  not sufficient  to result  in  

acquittal  of the other accused.  The Court has to screen the  

entire  evidence and does not  extend the  threat  of falsity  to  

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universal  acquittal.   The  Court  must  examine  the  entire  

prosecution evidence in  its  correct  perspective  before  it  can  

conclude the effect of acquittal of one accused on the other in  

the facts and circumstances of a given case.

24. Neither we are able to see nor the counsel appearing for  

the appellant has been able to point out the contradictions or  

discrepancies of any material nature in the statements of the  

witnesses.   PW6,  cousin  of  the  deceased  has  supported  the  

prosecution  version.   His  statement  is  duly  corroborated  by  

other witnesses.  According to him he had gone to the Duni  

Gram Post Office and informed the police about the incident  

over telephone, in response to which PW14 had come to the  

place of occurrence.  The incident took place at about 4.00 to  

4.30 p.m.  The telephonic information was given at about 9.00  

p.m.  and thereafter  the  FIR,  Ex.1/3,  was registered  at  about  

10.00 p.m.   The question of  delay in  lodging  the  FIR in  the  

present  case  does  not  arise.   Whatever  time  was  taken  in  

registering the FIR stands fully explained by the statements of  

PW6 and PW14.

25. Another  very  important  aspect  of  the  case  is,  that  on  

behalf of the accused, no question or suggestions were put to  

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the  Investigating  Officer  on  any  of  these  aspects  which  are  

sought  to  be  raised  before  us  in  the  present  appeal.   The  

Investigating Officer could have easily explained the delay, if  

any.  No question was also directed to get an explanation on  

record as to why Basruddin was not examined and PW9 and  

PW10 without examination were tendered for cross-examination  

in Court.   Absence of such questions on behalf of the accused  

to  the  concerned  witnesses  would  show  that  the  accused  

cannot claim any advantage and thus, cannot default the case  

of the prosecution in this regard, particularly in the facts of the  

present case.  

26. For  the  reasons  afore-stated,  we  find  no  merit  in  the  

present appeal.  The same is dismissed accordingly.

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

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

New Delhi; December 13, 2012  

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