Brahm Swaroop & Anr. v. State of U.P.
DR. B.S. CHAUHAN, J. 1. These appeals have been
preferred against the judgment and order dated 4th May, 2005, F
of the High Court of Judicature at Allahabad, passed in
Criminal Appeal No. 6180 of 2003, along with Criminal Appeal
Nos.3749 of 2003 and 4648 of 2004, against the judgment and
order of the Sessions court, Bareilly dated 5th August, 2003,
in Sessions Trial No. 855 of 2001 in Crime No. 384/2000. G
2. Fact and circumstances giving rise to these appeals
are as under:
(A) First Information Report No.239/2000 was lodged on
16 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
31st May, 2000 at 3.20 P.M. by Atar Singh (PW.1) at
Police Station Bahedi, Distt. Bareilly. It stated that his
grand father Natthu Singh @ Raghunath Singh had an
enmity with the family of one Nern Chand Gangwar and on
that date he along with Natthu Singh @ Raghunath Singh,
Rajendra Singh @ Gali, Virendra Singh, Dharam Pal
Singh, Rajendra Singh and Satyapal Singh had come to
Bahedi to get the Dynamo of their Jeep No. ODA 6162
repaired. Natthu Singh @ Raghunath Singh was sitting at
the counter of the repairing shop, while Dharam Pal Singh
and Rajendra Singh were sitting in the Jeep. Virendra
Singh was standing in front of the Jeep. Gyanendra Singh
kept his gun in the Jeep near Dharam Pal Singh and went
towards the grove to urinate. At about 3.00 P.M., Nern
Chand Gangwar (A.1) and his sons Balwant (A.2) and
Chandra Pal (A.3), Jogendra (A.4), Brahm Swaroop (A.5)
and Jagdish Baggar (A.6) armed with deadly weapons
came there and started firing, after surrounding these
persons with their respective weapons. Nern Chand
Gangwar (A.1) assaulted Natthu Singh (D.1) with his
Kanta. He died on the spot. Rajendra Singh (D.2) and
Dharampal Singh (D.4) received serious injuries by fire
arm and became unconscious. Virendra Singh (D.3) fell
near the Jeep after receiving fire arm injuries. The
informant, Atar Singh (PW.1) also received injuries in the
incident. Brahm Swaroop (A.5) took away the rifle of
Rajendra Singh (D.2) and Jagdish Baggar (A.6) took away
the licensed gun of Gyanendra. It was also alleged that the
chap Serial No. 5809 of the gun of the accused had fallen
on the spot. All the three injured persons were taken to the
hospital at Bahedi. Rajendra Singh (PW.2) and Satyapal
Singh also witnessed the incident.
(B) After investigation of the case, the prosecution
submitted the chargesheet under Sections 396, 148, 302
read with 149, 307/149 of the Indian Penal Code, 1860
(hereinafter called the IPC). Brahm Swaroop (A.5) and
BRAHM SWAROOP & ANR. v. STATE OF U.P. 17
[DR. B.S. CHAUHAN, J.]
Balwant (A.2) were further charged under Section 25 of the A
Arms Act (hereinafter referred to as 'Arms Act'). During
the trial, the prosecution examined 12 witnesses to prove
its case. After considering the whole case and
appreciating the evidence, on the conclusion of the trial,
the Sessions court vide judgment and order dated 5th B
August, 2003, in Sessions Trial No. 855 of 2001 acquitted
Brahm Swaroop (A.5) and Jagdish Baggar (A.6) of all the
charges under Sections 148, 302, 149, 307, 396, 424
l.P.C. and Section 25 of the Arms Act. Chandra Pal (A.3)
and Balwant (A.2) were convicted under Section 302 read c
with 34 l.P.C. and were awarded death sentence and a
fine of Rs.5,000/- and, in case of failure to deposit the fine,
six months imprisonment in addition. Nern Chand Gangwar
(A.1) and Jogendra (A.4) were convicted under Sections
302/34 l.P.C. and awarded imprisonment for life with fine D
of Rs. 10,000/- each, and in case of failure to deposit the
fine, one year further imprisonment. Nern Chand Gangwar
(A.1) and Jogendra (A.4) were further convicted under
Sections 307/34 l.P.C. and awarded 10 years rigorous
imprisonment and fine of Rs.5000/- each and in case of E
failure to deposit the fine, they would undergo 6 months
imprisonment in addition.
(C) Being aggrieved by the aforesaid judgment and order
of the Sessions Court, three appeals bearing Criminal
Appeal No. 4648 of 2004, Criminal Appeal No. 3749 of F
2003 and Government Appeal No. 6180 of 2003 were filed
before the High Court of Judicature at Allahabad. The High
Court vide its judgment and order dated 4th May, 2005,
disposed of the aforesaid three appeals by the impugned
common judgment and order dismissing the appeals filed G
by the convicts, however, with the modification that the
sentence of death imposed by the trial court on Chandra
Pal (A.3) and Balwant (A.2) was altered to life
imprisonment. The Government appeal against acquittal
of Braham Swaroop (A.5) and Jagdish Baggar (A.6) stood H
18 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
allowed, and they were convicted under Section 302 read
with 34 l.P.C. and sentenced to undergo imprisonment for
life with a fine of Rs.10,000/- and, in default of payment of
fine, rigorous imprisonment for a further period of one year.
Both the said accused were further convicted under
Sections 307/34 l.P.C. and sentenced to undergo 10 years
rigorous imprisonment with a fine of Rs.5,000/- each and,
in default of payment of fine, for a further period of six
months R.I. The High Court directed that all the
punishments would run concurrently. However, their
acquittal for the offences under Section 25 of the Arms Act,
was upheld.
3. Shri K.T.S. Tulsi, learned senior counsel appearing for
the appellants in all three appeals, has submitted that the place
0 of occurrence is not free from doubt for the reason that no blood
stained earth had been lifted from the place near the Jeep and
no blood stains were found in the Jeep. The incident had
occurred at the residence of Natthu Singh @ Raghunath Singh
(D.1) as an entry has been made in this regard in the General
E Diary at about 11.00 A.M. and the investigating officer Raj Guru,
Inspector, P.S. Bahedi (PW.10) had gone to that place. The
prosecution did not disclose the genesis of the case correctly.
Natthu Singh @ Raghunath Singh (D.1) was a history-sheeter
and a large number of criminal cases were pending against
him. Virendra Singh (D.3) and Dharampal Singh (D.4) were
F involved in criminal cases and facing trial in the said cases.
Therefore, they have large number of enemies and the whole
case of the prosecution becomes totally improbable. Had the
incident occurred as alleged by the prosecution, the Jeep
should have got some bullet marks as Rajendra Singh (D.2)
G and Virendra Singh (D.3) were sitting in the Jeep. Neither were
any bullet marks on the Jeep nor had any pellets been recovered
from the Jeep or the nearby area. An FIR had initially been
registered under Section 396 l.P.C. and, in view of the fact, that
one of the victims died on the spot and another died enroute
H to the hospital, had the prosecution given the correct version
BRAHM SWAROOP & ANR. v. STATE OF U.P. 19
[DR. B.S. CHAUHAN, J.]
of events, the FIR ought to have been registered under Sections A
302 and 307 l.P.C. along with other Sections. The inquest has
been manipulated and there are five blanks therein which make
the whole prosecution case doubtful. The use of weapons was
not established. The Magistrate received the Special Report
after five days. Atar Singh (PW.1) could not tell names of the B
father of Brahm Swaroop (A.5) as well as of Jagdish Baggar
(A.6) though the same had been mentioned in the FIR lodged
by him. The prosecution did not examine any independent
witness. The reversal of the acquittal of Brahm Swaroop (A.5)
and Jagdish Baggar (A.6) by the High Court is totally c
unwarranted and unjustified. Thus, the appeals deserve to be
allowed.
4. On the contrary, Shri Shail Kumar Dwivedi, learned
Additional Advocate General for the State of U.P., has
vehemently opposed the appeals, contending that the FIR had D
been lodged promptly; without any loss of time. The incident
occurred at 3.00 P.M. and the FIR had been lodged at 3.20
P.M. on the same day giving the names of all the accused; the
soil containing blood was mentioned in General Diary. The
omission of the names of fathers of Brahm Swaroop (A.5) and E
Jagdish Baggar (A.6) cannot be fatal to the prosecution case
and it is not necessary that the informant must be aware of all
the contents of the FIR itself. The prosecution examined the
injured witness, who would not spare the real culprits and
involve someone falsely. The deposition of the injured witness F
has to be given due weightage. The manner in which the inquest
report is made, has to be ignored as law does not require to it
to furnish all the information and it is not necessary to fill up the
names of all the accused. Even if the Special Report reached
the Judicial Magistrate at a belated stage, it would not be fatal G
to the prosecution case. The prosecution case is duly supported
by the medical evidence and though the eye witnesses were
closely related to the deceased persons, their depositions are
required to be examined with care and caution, but cannot be
ignored. Minor discrepancies in the evidence, cannot adversely H
A affect the prosecution case. Thus, the appeals are liable to be
dismissed.
5. We have considered the rival contentions of the parties
and perused the evidence on record.
8 Legal Issue
Inquest : Section 174 Cr.P.C.
6. Undoubtedly, there are five blanks in the inquest report.
C The crime number and names of the accused have not been
filled up. The column for filling up the penal provisions under
which offences have been committed is blank. The time of
incident and time of dispatch of the special re.port have not
been mentioned. Therefore, Shri Tulsi has submitted that the
D FIR is ante-timed and there is manipulation in the case of the
prosecution.
7. The whole purpose of preparing an inquest report under
Section 174 of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'Cr.P.C') is to investigate into and
E draw up a report of the apparent cause of death, describing
such wounds as may be found on the body of the deceased
and stating as in what manner, or by what weapon or instrument
such wounds appear to have been inflicted. For the purpose
of holding the inquest it is neither necessary nor obligatory on
F the part of the Investigating Officer to investigate into or
ascertain who were the persons responsible for the death. The
object of the proceedings under Section 174 Cr.PC is merely
to ascertain whether a person died under suspicious
circumstances or met with an unnatural death and, if so, what
G was its apparent cause. The question regarding the details of
how the deceased was assaulted or who assaulted him or
under what circumstances he was assaulted is foreign to the
ambit and scope of such proceedings i.e. the inquest report is
not the statement of any person wherein all the names of the
H persons accused must be mentioned. Omissions in the
BRAHM SWAROOP & ANR. v. STATE OF U.P. 21
[DR. B.S. CHAUHAN, J.]
inquest report are not sufficient to put the prosecution out of A
court. The basic purpose of holding an inquest is to report
regarding the apparent cause of death, namely, whether it is
suicidal, homicidal, accidental or by some machinery etc. It is,
therefore, not necessary to enter all the details of the overt acts
in the inquest report. Evidence of eyewitnesses can not be B
discarded if their names do not figure in the inquest report
prepared at the earliest point of time. The inquest report cannot
be treated as substantive evidence but may be utilised for
contradicting the witnesses of inquest. (See Podda Narayana
& Ors. v. State of Andhra Pradesh, AIR 1975 SC 1252; Khujji C
v. State of Madhya Pradesh, AIR 1991 SC 1853; George &
Ors. v. State of Kera/a & Anr., (1998) 4 SCC 605; Shaikh Ayub
v. State of Maharashtra, (1998) 9 SCC 521; Suresh Rai v.
State of Bihar, (2000) 4 SCC 84; Amar Singh v. Ba/winder
Singh & Ors., (2003) 2 SCC 518; Radha Mohan Singh alias
Lal Sahab & Ors. v. State of Uttar Pradesh, (2006) 2 SCC 450; D
and Aqeel Ahmad v. State of Uttar Pradesh, AIR 2009 SC
1271 ).
8. In Radha Mohan Singh (supra), a three judge bench of
this Court held:
"No argument on the basis of an alleged discrepancy,
overwriting, omission or contradiction in the inquest report
can be entertained unless the attention of the author
thereof is drawn to the said fact and he is given an
opportunity to explain when he is examined as a witness
in court."
(Emphasis added)
9. Even where, the attention of the author of the inquest is G
drawn to the alleged discrepancy, overwriting, omission or
contradiction in the inquest report and the author in his
deposition has also admitted that through a mistake he omitted
to mention the crime number in the inquest report, this Court
has held that just because the author of the report had not been H
22 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A diligent did not mean that reliable and clinching evidence
adduced by the eyewitnesses should be discarded by the
Court. (Vide: Dr. Krishna Pal & Anr. v. State of Uttar Pradesh,
(1996) 1 sec 194).
8 10. In view of the law referred to hereinabove it cannot be
held that any omission or discrepancy in the inquest is fatal to
the prosecution's case and such omissions would necessarily
lead to the inference that FIR is ante-timed. Shri N.K. Sharma
Sub Inspector (PW.7) had denied the suggestion made by
C defence that till the time of preparing the report the names of
the accused persons were not available. He further stated that
the column for filling up the nature of weapons used in the crime
was left open as it could be ascertained only by the Doctor what
weapons had been used in the crime. Thus, the submissions
made in this regard are preposterous.
Delay in sending report to the Magistrate :
11. Undoubtedly, there is delay of 5 days in sending the
Special Report. This Court in Badam Singh v. State of M.P.,
E (2003) 12 SCC 792, while considering this issue held that
where the investigating officer categorically stated that he was
not in a position to give any explanation for the delay in sending
the Special Report, it may be fatal to the prosecution's case.
12. However, a larger Bench of three Judges in Bairam
F Singh & Anr. v. State of Punjab, (2003) 11 SCC 286, held as
under:
"10 ..... we notice that in reality there is no delay in preparing
the FIR but there was some delay in transmitting the said
information to the Jurisdictional Magistrate. Having been
satisfied with the fact that the FIR in question was
registered in the morning of 6-5-1990, we do not think that
the delay thereafter in communicating it to the Jurisdictional
Magistrate on the facts of this case, has really given any
room to doubt that the said document (FIR) was created
BRAHM SWAROOP & ANR. v. STATE OF U.P. 23
[DR. B.S. CHAUHAN, J.]
after much deliberations. At any rate, while considering the A
complaint of the appellants in regard to the delay in the FIR
reaching the Jurisdictional Magistrate, we will have to also
bear in mind the creditworthiness of the ocular evidence
adduced by the prosecution and if we find that such ocular
tevidence is worthy of acceptance, the element of delay in B
registering a complaint or sending the same to the
Jurisdictional Magistrate by itself would not in any manner
weaken the prosecution case."
13. In State of Rajasthan v. Teja Singh & Ors., (2001) 3
SCC 147, this Court held that the receipt of special report by C
the Magistrate is a question of fact and the prosecution may
explain the delay in sending the special report. However, the
explanation so furnished by the prosecution must be convincing
and acceptable. The same view has been re-iterated in
Ramesh Baburao Devaskar & Ors. v. State of Maharashtra, D
(2007) 13 sec 501.
14. In Sarvesh Narain Shukla v. Daroga Singh & Ors.,
AIR 2008 SC 320, this Court held that delay in forwarding the
Special Report to the Magistrate could not raise a suspicion E
that FIR had been written later and was ante-timed. Suspicion
of manipulation of the documents prepa"red during the initial
investigation would not dislodge the documentary and oral
evidence on the spontaneity of the lodging of the FIR.
15. In Aqeel Ahmad (supra), this Court held that the
forwarding of the report to the Magistrate is indispensable and
absolute and it must be sent at the earliest, promptly and without
any undue delay as the purpose is to avoid the possibility of
improvement in the prosecution's case and the introduction of
a distorted version by deliberations and consultation and to G
enable Magistrate concerned to keep a watch on progress of
investigation. However, no rule of universal application can be
laid down that whenever there is some delay in sending the FIR
to the Magistrate, the prosecution version becomes unreliable.
It would depend upon the facts of each case. If there has been H
24 SUPREME COURT REPORTS (2010) 15 (ADDL.) S.C.R.
A some lapse on the part of the Investigating Officer that would
not affect the credibility of the prosecution's witnesses.
16. In State of Kera/av. /lnilachandran@ Madhu & Ors.,
AIR 2009 SC 1866, this Court placed reliance upon its earlier
8 judgments in Pala Singh v. State of Punjab, AIR 1972 SC
2679; and Sarwan Singh v. State of Punjab, AIR 1976 SC
2304 and held that the police should not unnecessarily delay
sending the FIR to the Magistrate as the delay affords the
opportunity to introduce improvement and embellishment
C thereby resulting in a distorted version of the occurrence.
However, in case the prosecution offers a satisfactory
explanation for the delay, the court has to test it. An un
explained delay by itself may not be fatal, but it is certainly a
relevant aspect which can be taken note of while considering
0 the role of the accused persons for the offence.
A similar view has been re-iterated in Pandurang
Chandrakant Mhatre & Ors. v. State of Maharashtra, (2009)
10 sec 773.
17. In Akbar Sheikh & Ors. v. State of WB., (2009) 7 SCC
415, this Court held cis under:
"44. Submission of Mr Ghosh that the first information
report is ante-timed cannot be accepted. It is possible that
PW 1 because of lapse of time has made certain
statements which go beyond the record viz. holding of
inquest before the FIR was recorded. The number of
accused persons in the first information report might have
also been put by the investigating officer at a later point
of time. The fact that the post-mortem examination had
been held on 16-5-1982 itself goes a long way to establish
the genesis of the occurrence. While saying so, we are not
unmindful of the fact that the first information report was
sent to the Magistrate after twenty-four hours. But then, in
a case of this nature such a delay may not, by itself, be
held to be fatal".
BRAHM SWAROOP & ANR. v. STATE OF U.P. 25
[DR. B.S. CHAUHAN, J.]
18. In the instant case, the defence did not put any question A
in this regard to the investigating officer Raj Guru (PW.10),
thus, no explanation was required to be furnished by him on
this issue. Thus, the prosecution had not been asked to explain
the delay in sending the special report. More so, the submission
made by Shri Tulsi that the FIR was ante-timed cannot be B
accepted in view of the evidence available on record which
goes to show that the FIR had been lodged promptly within 20
minutes of the incident as the Police Station was only 1 k.m.
away from the place of occurrence and names of all the
accused had been mentioned in the FIR. Dr. Nar Singh c
Bahadur (PW.4) examined Virendra Singh (D.3) on 31st May,
2000 itself at 5.40 p.m. and had noted fire arm injures on his
body and opined that the injuries were fresh in nature. Dr. Anshu
Kumar Agrawal (PW.6) had examined Atar Singh (PW.1) on
31st May, 2000 itself at 3.50 p.m. and had noted multiple pellet D
wounds with surrounding charring over anterior surface of left
thigh middle part and a single pellet wound over the anterior
surface at right arm lower part. Dr. K.K. Saxena (PW.5),
Radiologist conducted an X-Ray examination of Attar Singh
(PW.1) on 31.5.2000 and found three small rounded radio E
opaque with metallic density and F.B. Shadow on middle of left
thigh and right arm.
The prompt lodging of the FIR is proved from the chik
report and the statement of the complainant under section 161
Cr.P.C., which was recorded immediately after lodging the FIR. F
Any defect in the preparation of the inquest report by the
investigating officer cannot lead to an inference that the FIR
was not registered at the alleged time. The FIR contains all the
essential features of the prosecution's case including names
of eye witnesses, time and place of incident, names of the G
victim, motive, name of the accused persons, weapons in their
hands and manner of assault. Thus, all these things lend a seal
of assurance not only to the presence of eye witnesses at the
place of the incident, but also to the participation of the
appellants in the crime. Cou~51ttach great importance to the H
A prompt lodging of FIR and prompt interrogation of a witness
under Section 161 Cr.P.C. as the same substantially eliminates
the chances of embellishment and concoction creeping into the
account contained therein.
B 19. It has further been submitted by Shri Tulsi that the place
of occurrence is not free from doubt as it has been stated by
the investigating officer, Raj Guru, Inspector, P.S. Bahedi
(PW .10) that on receiving the phone call at 11.00 A. M.
purported to have been made from the residence of Natthu
C Singh @ Raghunath Singh (D.1) that dacoits had attacked
them he made an entry in the General Diary, and proceeded
to that place and recorded the statement of some persons
there. The vehicle in which Rajendra Singh (D.2) and
Dharampal Singh (D.4) were sitting did not have any blood
marks and no blood stains were found near the jeep and no
D pellets had been recovered from the said place. On the
contrary, Shri Shail Kumar Dwivedi, Addi. Advocate General
has submitted that cement containing blood stains from the
counter had been collected and proved. So far as the alleged
incident at 11.00 A.M. is concerned, the investigating officer,
E Raj Guru, Inspector, P.S. Bahedi (PW.10) had stated that "this
was the conspiracy to misguide the police and to drive it out
of the Kasba."
20. If we accept the submissions made by Shri Tulsi then
F the question of collecting the blood stained cement from the
counter of the repairing shop could not arise. Shri Raj Guru 1.0.
(PW.10) has stated that the tool box was found marked with
splinters and badly damaged. More so, the statement of Atar
Singh (PW.1 ), the informant, cannot be ignored as he has
G stated that Virendra Singh (D.3) was bleeding but blood did
not fall on the ground as Virendra Singh's (0.3) clothes
absorbed all the blood. He had further stated that Natthu Singh
@ Raghunath Singh (D.1) was sitting at the counter and there
was quite a lot of blood from the wounds of Natthu Singh (D.1)
H which fell on the ground and not on the counter. In view of the
BRAHM SWAROOP & ANR. v. STATE OF U.P. 27
[DR. B.S. CHAUHAN, J.]
. above, we do not find any force in the submissions made by A
Shri Tulsi in this regard.
21. Merely because the witnesses were closely related to
the deceased persons, their testimonies cannot be discarded.
Their relationship to one of the parties is not a factor that effects 8 the credibility of a witness, more so, a relation would not conceal
the actual culprit and make allegations against an innocent
person. A party has to lay down a factual foundation and prove
by leading impeccable evidence in respect of its false
implication. However, in such cases, the court has to adopt a C
careful approach and analyse the evidence to find out whether
it is cogent and credible evidence. (Vide: Dalip Singh & Ors.
v. State of Punjab, AIR 1953 SC 364; Masalti v. State of UP.,
AIR 1965 SC 202; Lehna v. State of Haryana, (2002) 3 SCC
76; and Rizan & Anr. v. State of Chhattisgarh Through The
Chief Secretary, Government of Chhatisgarh, Raipur, D
Chhatisgarh, (2003) 2 SCC 661).
Injured witness Attar Singh (PW.1) has been examined, his
testimony cannot be discarded, as his presence on the spot
cannot be doubted, particularly, in view of the fact that E
immediately after lodging of FIR, the injured witness had been
medically examined without any loss of time on the same day.
The injured witness had been put through a grueling cross
examination but nothing can be elicited to discredit his
testimony. F
22. Where a witness to the occurrence has himself been
injured in the incident, the testimony of such a witness is
generally considered to be very reliable, as he is a witness that
comes with a built-in guarantee of his presence at the scene
of the crime and is unlikely to spare his actual assailant(s) in G
order to falsely implicate someone. "Convincing evidence is
required to discredit an injured witness". (Vide: State of UP.
v. Kishan Chand & Ors., (2004) 7 SCC 629; Krishan & Ors. v.
State of Haryana, (2006) 12 SCC 459; Dinesh Kumar v. State
of Rajasthan, (2008) 8 SCC 270; Jarnai/ Singh & Ors. v. State H
28 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
A of Punjab, (2009) 9 SCC 719; Vishnu & Ors. v. State of
Rajasthan, (2009) 10 SCC 477; Anna Reddy Sambasiva
Reddy & Ors. v. State of Andhra Pradesh, AIR 2009 SC 2661;
and Balraje @ Trimbak v. State of Maharashtra, (2010) 6
sec 673).
B 23. In such a fact-situation though Natthu Singh @
Raghunath Singh (D.1) was history-sheeter and Rajendra Singh
(D.2) and Dharampal Singh (D.4) had criminal cases against
them and they had large number of enemies, it cannot be
C inferred that somebody else had killed them.
Discrepancies and inconsistencies in depositions of
witnesses:
24. It has been submitted by learned Senior counsel for
o the appellants that there is a contradiction between the medical
and ocular evidence. From the post mortem report of Virendra
Singh (D.3) (Ext.Ka-8), it is evident that his body was having
contusions; the post mortem report of Rajendra Singh (D.2)
(Ext.Ka-9) reveals that he was having abrasions; and the post
E mortem report of Nathu Singh (D.1) (Ext.Ka-10) also reveal
several abrasions. The High Court has given cogent reasons
explaining these discrepancies by saying that at the time of
firing, the deceased must have reacted to the assault and might
have received some abrasions and contusions in order to save
F themselves. Rajendra Singh (PW.2) has stated that he
remained at the place of occurrence till 7 p.m. and he denied
his signatures. The High Court has furnished a cogent
explanation for such contradiction, and held that his statement
had been recorded after 3 years of the incident and thus, such
infirmity is bound to occur but does not affect the credibility of
G the witnesses.
25. It is a settled legal proposition that while appreciating
the evidence of a witness, minor discrepancies on trivial
matters, which do not affect the core of the prosecution's case,
H may not prompt the Court to reject the evidence in its entirety.
BRAHM SWAROOP & ANR. v. STATE OF U.P. 29
[DR. S.S. CHAUHAN, J.]
"Irrelevant details which do not in any way corrode the A
credibility of a witness cannot be labelled as omissions or
contradictions." Difference in some minor detail, which does not
otherwise affect the core of the prosecution case, even if
present, would not itself prompt the court to reject the evidence
on minor variations and discrepancies. After exercising care B
and caution and sifting through the evidence to separate truth
from untruth, exaggeration and improvements, the court comes
to a conclusion as to whether the residuary evidence is sufficient
to convict the accused. Thus, an undue importance should not
be attached to omissions, contradictions and discrepancies c
which do not go to the heart of the matter and shake the basic
version of the prosecution witness. As the mental capabilities
of a human being cannot be expected to be attuned to absorb
all the details, minor discrepancies are bound to occur in the
statements of witnesses. (See: State of UP. v. MK. Anthony, 0 AIR 1985 SC 48; and State of Rajasthan v. Om Prakash, AIR
2007 SC 2257; State v. Saravanan & Anr., AIR 2009 SC 152;
and Prithu @ Prithi Chand & Anr. v. State of Himachal
Pradesh, (2009) 11 SCC 588).
Appeal against Acquittal : E
26. It is well established in law that the appellate court
should not ordinarily set aside a judgment of acquittal in a case
where two views are possible, though the view of the appellate
court may be more, the probable one. While dealing with a F
judgment of acquittal, the appellate court must consider the
entire evidence on record, so as to arrive at a finding as to
whether the views of the trial Court were perverse or otherwise
unsustainable. The appellate court is entitled to consider
whether in arriving at a finding of fact, the trial Court had failed G
to take into consideration any admissible evidence and/or had
taken into consideration evidence brought on record contrary
to law. Similarly, the incorrect placing of the burden of proof may
also be a subject matter of scrutiny by the appellate court. The
court of appeal may not interfere where two views are possible H
A for the reason that in such a case it can be held that
prosecution failed to prove the case beyond reasonable doubt
and accused is entitled for benefit of doubt. (Vide: Balak Ram
& Anr. v. State of UP., AIR 1974 SC 2165; Al/arakha K
Mansuri v. State of Gujarat, (2002) 3 SCC 57; Raghunath v.
8 State of Haryana, (2003) 1 SCC 398; State of UP. v. Ram
Veer Singh & Ors., AIR 2007 SC 3075; S. Rama Krishna v.
S. Rami Reddy (D) by his LRs. & Ors., AIR 2008 SC 2066;
Sambhaji Hindurao Deshmukh & Ors. v. State of
Maharashtra, (2008) 11 SCC 186; Arulvelu & Anr. v. State,
c (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v.
State of A.P., (2009) 16 SCC 98; and Ram Singh alias Chhaju
v. State of Himachal Pradesh, (2010) 2 SCC 445).
27. In Shea Swaroop and Ors. v. King Emperor, AIR 1934
PC 227, the Privy Council held as under:
" ... the High Court should and will always give proper weight
and consideration to such matters as (1) the views of the
trial Judge as to the credibility of the witnesses, (2) the
presumption of innocence in favour of the accused, a
E presumption certainly not weakened by the fact that he has
been acquitted at his trial, (3) the right of the accused to
the benefit of any doubt, and (4) the slowness of an
appellate court in disturbing a finding of fact arrived at by
a Judge who had the advantage of seeing the
F witnesses .... "
28. In Chandrappa and Ors. v. State of Karnataka, (2007)
4 SCC 415, this Court observed as under:
"(1) An appellate court has full power to review, re
appreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such power
and an appellate court on the evidence before it may reach
BRAHM SWAROOP & ANR. v. STATE OF U.P. 31
[DR. B.S. CHAUHAN, J.]
its own conclusion, both on questions of fact and of law. A
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds", "very
strong circumstances", "distorted conclusions", "glaring
mistakes", etc. are not intended to curtail extensive powers 8 of an appellate court in an appeal against acquittal. Such >
phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate
court to interfere with acquittal than to curtail the power of
the court to review the evidence and to come to its own
c conclusion.
(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal D
jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court
of law. Secondly, the accused having secured his acquittal,
the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court. E
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court."
29. In State of Uttar Pradesh v. Banne@ Baijnath & Ors., F
(2009) 4 SCC 271, this Court gave illustrations of certain
circumstances in which the Court would be justified in interfering
with a judgment of acquittal by the High Court. The
circumstances include:
(i) The High Court's decision is based on totally erroneous
view of law by ignoring the settled legal position;
(ii) The High Court's conclusions are contrary to evidence
and documents on record;
32 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
A (iii) The entire approach of the High Court in dealing with
the evidence was patently illegal leading to grave
miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust and
B unreasonable based on erroneous law and facts on the
record of the case;
(v) This Court must always give proper weight and
consideration to the findings of the High Court;
C (Vi) This Court would be extremely reluctant in interfering
With a case when both the Sessions Court and the High
Court have recorded an order of acquittal.
30. Thus, the law on the issue can be summarised to the
0 effect that in exceptional cases where there are compelling
circumstances, and the judgment under appeal is found to be
perverse, the appellate court can interfere with the order of
acquittal. The appellate court should bear in mind the
presumption of innocence of the accused and further that the
E trial Court's acquittal bolsters the presumption of his innocence.
Interference with the decision of the trial court in a routine
manner, where the other view is possible should be avoided,
unless there are good reasons for such interference.
31. The trial Court had acquitted two accused persons,
F namely, Brahm Swaroop (A.5) and Jagdish Baggar (A.6)
mainly on the grounds that Attar Singh (PW.1) did not tell the
names of their respective fathers though it has so been
mentioned in the FIR. Secondly, the prosecution could not
explain how could the gun of Gyanendra be recovered from
G Brahm Swaroop (A.5) if it was taken away by Jagdish Baggar
(A.6) and third ground had been that on 3.6.2000 a gun was
recovered on the pointing out of Brahm Swaroop and he had
admitted that he had used the gun in the crime. The said gun
was sent for ballistic expert and the report (Ext.Ka-28) shows
BRAHM SWAROOP & ANR. v. STATE OF U.P. 33
[DR. B.S. CHAUHAN, J.]
that the barrel of the gun did not have any residue and it had A
not been used recently.
32. So far as the first issue is concerned, the names of
the father of two persons accused could not be given by Atar
Singh, informant, (PW.1) in the court, though mentioned in the 8
FIR. The question does arise as to whether, it is fatal to the case
of the prosecution. In Sone Lal & Ors. v. State of UP., AIR 1978
SC 1142, this Court while dealing with the issue held:
" ..... .informant was not aware of some of the contents of
the FIR itself. ........ If the accused had any reason to think C
otherwise it was permissible for him to cross-examine the
witness concerned and to lay the foundation for his own
version. Lastly, it was suggested by the Sessions Judge
that although the parentage of the accused Dularey was
not mentioned in the FIR yet it was mentioned in the D
general diary which shows that the FIR was prepared
subsequently. The High Court has clearly pointed out
that it was fully explained that due to inadvertence the
parentage of Dularey was not mentioned in the FIR but
after being ascertained from the informant it was E
mentioned in the general diary. In these circumstances,
therefore, the omission, if any, does not appear to be of
any significance. These were the main reasons given by
the Sessions Judge for disbelieving the FIR and, in our
opinion, the High Court was right in pointing out that the F
reasons given by the Sessions Judge were both unsound
and untenable."
33. In the case of Rotash v. State of Rajasthan, (2006)
12 SCC 64, this Court held:
" ........ The question is as to whether a person was
implicated by way of an afterthought or not must be judged
having regard to the entire factual scenario obtaining in the
case. PW.6 received as many as four injuries .... "
A Thus, in the fact-situation of the present case, this factor alone
could not discount their involvement in the crime. More so, it
is evident from the record that there was no suggestion to Atar
Singh (PW.1) that the names of the fathers of the two accused
persons were mentioned at the instance of some other
B persons. He had not been asked as how the name of their
father had been mentioned in the FIR. Such an inference could
not have been drawn by the trial Court without giving an
opportunity of explanation to Atar Singh (PW.1 ).
C 34. On 3.6.2000, a gun was recovered on its being pointed
out by appellant Brahm Swaroop and he stated that he had
used the said gun in the commission of the crime. However,
the FSL report suggested that the gun had not been fired
recently and from this the trial court concluded that the report
did not corroborate the usage of the said gun in the crime and
D was a major flaw in the prosecution's case. The High Court held
that this inference of the trial court was perverse. The case of
the prosecution had all along been that Brahm Swarup was
armed with a DBBL gun (which is a different type of gun from
the said gun), and the said gun was not mentioned either in
E the FIR or in the testimonies of any of the prosecution
witnesses. It was the statement of Brahm Swaroop that he had
used the said gun in the crime. Further, this statement was
inadmissible as Brahm Swaroop had made the statement to
a police officer while he was in custody.
35. As far as the question of the other gun, which Jagdish
Baggar took from Gyanendra and its recovery from Brahm
Swaroop is concerned, both the Trial Court and the High Court
disbelieved the recovery. However, the High Court took the view
G that no benefit can be given to the accused persons on the
ground that the recovery of the said gun was not worth to be
believed. Even in the absence of the proper recovery of the
said gun, there was enough evidence to prove beyond
reasonable doubt, the guilt of the accused. The High Court took
H the view that in light of the fact that the eyewitness accounts
BRAHM SWAROOP & ANR. v. STATE OF U.P. 35
[DR. B.S. CHAUHAN, J.]
and the medical evidence were in harmony with each other and A
clearly established the guilt of Brahm Swaroop and Jagdish
Baggar, the decision of the Trial Court to acquit them could not
be in consonance with the evidence available on record and
thus, perverse. Thus, no fault can be found with the findings so
recorded by the High Court in reversing their acquittal. B
. 36. We also do not find any force in the submissions made
on behalf of the appellants that there could be no recovery of
weapons on 3.6.2000 when the statement of Jagdish Baggar
(A.6) was recorded firstly on 7.6.2000 in the District Jail, for
the reason that Shri N.K. Sharma, Sub-Inspector (PW.7) has C
stated that Balwant (A.2) and Brahm Swaroop (A.5) were
arrested on 3.6.2000 and they were having the gun with them.
Balwant (A.2) himself brought one Rifle out of gathered hay and
therefore, the statement of N.K. Sharma (PW.7) cannot be
brushed aside as he has referred to the butt of the gun which D
was broken and the chap of which had fallen down.
37. We have, ourselves appreciated the evidence and
reached conclusions similar to the High Court:
(i) If the evidence of the eye-witnesses is trustworthy and E
believed by the court, the question of motive becomes
totally irrelevant.
(ii) Merely because the witnesses were close relatives to
the deceased, that cannot be a ground to discard their
evidence.
(iii) Prosecution examined an injured witness. His
presence on the spot cannot be doubted and his
deposition is to be given due weightage.
(iv) In the facts and circumstances of the case there was
no conflict between the direct evidence and medical
evidence. Even if deceased were having some minor
abrasions and contusions for the reason that they might
36
SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
have reacted to the assault and tried to save themselves,
cannot create a doubt in the prosecution case about the
presence of the witnesses.
(v) The eye witnesses have been cross-examined
thoroughly, but nothing useful to the accused could be
elicited from them. The testimony of the eye witnesses is
credible and worthy of confidence.
(vi) The acquittal of Brahm Swaroop (A.5) and Jagdish
Baggar (A.6) by the trial court cannot be held to be based
on cogent reasons. The High court has rightly reversed
their acquittals for offences under sections 302/34 and
307/34 IPC, but has rightly upheld their acquittal under
Section 25 of the Arms Act.
0 38. In view of the above, we do not find any cogent reasons
to interfere with the impugned judgment and order of the High
Court. The appeals lack merit and, are accordingly, dismissed.
K.K.T. Appeals dismissed.