Archive for October 10th, 2010

Medical evidence Vs Ocular evidence see S.C judgement dtd 14-09-2010.

Medical Evidence Vs Ocular Evidence…Where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved…SC jt dt 14.09.2010

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1243 OF 2007

Abdul Sayeed … Appellant Vs.

State of Madhya Pradesh …Respondent WITH

CRIMINAL APPEAL NO. 1399 OF 2008

Rafique … Appellant Vs.

State of Madhya Pradesh …Respondent AND

CRIMINAL APPEAL NOS.1363-1365 OF 2010

Rais @ Toun & Ors. …Appellants Vs.

State of Madhya Pradesh ….Respondent JUDGMENT

Dr. B.S. CHAUHAN, J.

1. All the aforesaid appeals have been filed against the common judgment and order dated 12.1.2006, of the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal Nos.1191 of 1998; 1210 of 1998; and 281 of 2001 by which the appellants have been convicted under Sections 302/34 of the Indian Penal Code, 1860 (hereinafter called IPC) for committing the murders of Chand Khan and Shabir Khan, while setting aside their conviction under Sections 147 and 148 IPC awarded by the Trial Court.

2. Facts and circumstances giving rise to these appeals are that on 16.8.1994 at about 7.50 p.m., F.I.R. No.1/1994 under Sections 302, 147, 148, 149 and 307 IPC was lodged at Police Station Mandai Chowk Sarangpur, Madhya Pradesh, according to which 17 accused including 5 appellants armed with deadly weapons came from the mosque way; stopped Chand Khan and started beating him with weapons with an intention to kill him. After hearing the hue and cry made by Chand Khan, his wife Zaira Banu, sons Shabir (deceased), Anees (PW.1), and Ashfaq (PW.2), and brother Usman Ali (PW.4) came running to the place of occurrence and after seeing the incident, they were so scared that they could not muster the courage to intervene immediately. After some time Zaira Banu, Shabir and Ashfaq tried to rescue Chand Khan. Shabir was also assaulted, he was seriously injured and died on the spot. Ashfaq (PW.2), and his mother Zaira Banu also got injuries on their persons at the hands of the accused. 2

3. The Investigating Officer sent the dead bodies for post-mortems which were conducted by Dr. R.P. Sharma (PW.3). In his opinion, the cause of death of both Chand Khan and Shabir was excessive hemorrhage resulting in injuries to brain and lungs. Ashfaq (PW.2) was also examined medically. After completing the investigation, out of the seventeen accused, fourteen were put to trial for offences under Sections 148, 302 and 323, in the alternative 302/149, 324/149 and 323/149 IPC. One Nanhe Khan @ Abdul Wahid died before commencement of trial. One accused namely, Rais S/o Mumtaz is still absconding. While Iqbal @ Bhura, appellant, had also absconded, but afterwards he surrendered and was tried separately. The appellants and the other accused denied the charges and pleaded that they were falsely implicated and claimed trial. The prosecution examined 12 witnesses including Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4), as eye-witnesses. The other relevant witnesses were Dr. R.P. Sharma (PW.3) who conducted the post-mortems on the bodies of the deceased, Ramesh Kumar Dubey (PW.7) and Rajmal Sharma (PW.8) who had investigated the case. The appellants examined 4 witnesses in defence.

4. After conclusion of the trial, the Special Additional Sessions Judge, Shajapur, convicted Abdul Sayeed (A.11), Mumtaz Khan (A.9), Rafiq (A.6) 3

and Rais (A.5) under Section 148 IPC and awarded a sentence of 3 years’ imprisonment to each; Mumtaz (A.9) was sentenced to 2 years’ imprisonment under Section 147; Mumtaz (A.9) and Abdul Sayeed (A.11) were sentenced to Rigorous Imprisonment for life and fine of Rs.2000/- under Section 302 IPC for committing murder of Chand Khan; Rais @ Toun (A.5) and Rafiq (A.6) were sentenced to Rigorous Imprisonment for life and fine of Rs.1000/- under Section 302 IPC for committing murder of Shabir; Sayeed (A.7) was convicted under Section 324 IPC and given 2 years Rigorous Imprisonment for causing injuries to Ashfaq (PW.2); Hanif Khan (A.1), was convicted under Sections 304 Part-II, 323 and 147 IPC for causing injuries to Shabir. Iqbal alias Bhura, appellant also got convicted in separate Sessions Trial No.190/94 vide judgment and order dated 11.1.2001, under Sections 148 and 302 IPC and was awarded Rigorous Imprisonment of 3 years and life imprisonment respectively along with certain fines.

5. All the said convicts filed Criminal Appeal Nos.1191/98; 1210/98; 1233/98; and 281/2001 before the High Court of Madhya Pradesh. The State of Madhya Pradesh also filed Criminal Appeal No.1447/98 against the acquittal of some of the accused for offences under Sections 302/149, 324/149 and 323/149 IPC. As all the appeals related to the same incident, 4

the High Court disposed of all the appeals by the common judgment and order dated 12.1.2006 wherein the appellants had been convicted as mentioned hereinabove, i.e., under Sections 302/34 IPC setting aside their conviction under Sections 147/148 IPC. The High Court allowed Criminal Appeal No.1191/98 with regard to the other co-accused, Hanif Khan, Bashir Khan, Sayeed and Aslam. The appeal filed by the State of Madhya Pradesh was partly allowed. Hence, these appeals.

6. All these appeals have arisen from the same incident and have been filed against the common judgment of the High Court and thus, are being heard together.

7. Shri Fakhruddin, learned Senior counsel, Shri Ranbir Singh Yadav and Ms. Rakhi Ray, learned counsel appearing for the appellants, have submitted that in case the High Court had set aside the conviction of all the appellants and other co-accused under Sections 147/148 IPC, question of convicting them with the aid of Section 34 IPC did not arise, even otherwise no charge under Section 34 IPC was framed by the Trial Court; nor any evidence had been led to show that offences had been committed by the appellants in furtherance of a common intention. Essential ingredients of 5

Section 34 IPC, i.e., that a common intention was shared, has not been established by the prosecution. More so, the weapons allegedly used for committing the offences by the appellants do not tally with the ocular evidence of the eye-witnesses. Therefore, injuries caused to the deceased and other injured persons cannot be attributed to the appellants. Conviction under Sections 302/34 IPC is unwarranted and thus, the appeals deserve to be allowed.

8. On the other hand, Shri C.D. Singh, learned counsel appearing for the State, has vehemently opposed the appeals contending that not framing the charge under Section 34 IPC is not fatal to the prosecution and the High Court has rightly convicted the appellants under Sections 302/34 IPC. Seventeen persons came to the spot armed with deadly weapons with a common intention to kill Chand Khan. They surrounded Chand Khan and started causing injuries to him. In such a fact-situation the eye-witnesses may not describe exactly what role had been played by an individual assailant. If there are small omissions in the depositions of the eye- witnesses, the same require to be ignored. The injured witnesses have to be relied upon and even in case there is some conflict between the ocular 6

evidence and medical evidence, the ocular evidence has to be preferred. Therefore, the appeals lack merit and are liable to be dismissed.

9. We have considered the rival submissions made by the learned counsel for the parties and perused the record.

10. As mentioned hereinabove, 17 persons had allegedly participated in the crime. As per the prosecution, on the date of occurrence, i.e., 16.8.1994 at about 11 A.M., one Kamla Bai, daughter of Dev Karan, neighbour of informant Anees (PW.1) was molested by Munim Khan and Mumtaz Khan (accused/appellant) in the fields of Faqir. Smt. Gora Bai, mother of Kamla Bai, complained to Chand Khan with regard to the said incident. Chand Khan (since deceased), went to advise the uncle of Munim Khan and Pappu alias Chote Khan in this regard and scolded them. He also gave one slap to one of the accused. The appellants and other co-accused did not like the conduct of Chand Khan and in the evening the appellants and the co-accused committed the offence mentioned hereinabove. In fact, this had been the motive for commission of the offence.

7

11. Out of the seventeen accused, ten stood acquitted by the courts below. One of them is still absconding. One had died prior to the commencement of the trial. Only five accused/appellants have been convicted by the High Court. Therefore, we are concerned only with the cases of these appellants. Making reference to any of the other co-accused at this stage would not serve any purpose.

12. As per the Autopsy Report (Ex.P/7-A), prepared by Dr. R.P. Sharma (PW.3) in respect of Chand Khan, the following external injuries were noticed:-

1. Incised wound on head at occipital region, 1.5 cm x 1 x bone deep with fracture.

2. Incised wound on right parietal region 2.5 cm x = x bone deep fracture of right parietal bone, clotted blood on cerebral membrane.

3. Incised wound on left leg 10 cm x 2 cm upto bony region of Tibia.

4. Stab wound on left side of chest between 3rd and 4th rib deep upto lung 1.5 cm x = cm x deep upto left lung puncture. 8

5. Incised wound on left arm of posterior surface 5 cm x 2 cm x = cm.

6. Lacerated wound over the left eye 1 cm x = cm x < cm. In the opinion of the doctor grievous injures to vital organs i.e. head and lungs caused excessive haemorrhage which resulted in death.

13. Dr. R.P. Sharma (PW.3) also performed Autopsy on the body of Shabir Khan and gave Post-Mortem Report Ex.P/8-A. In this report he duly noted the external injuries as under:-

1. Incised wound on head at right frontal level to right ear underneath frontal bone fracture.

2. Incised wound over the left parietal region 4, =” x bone deep .

3. One lacerated wound over the occipital region =” x <” x <“.

4. Stab injury on the right side chest 1″ x <” x <“.

5. Stab injury on the right side chest 1″ x =” x deep upto lung.

6. Incised wound on left shoulder 2, =” x =” x =”.

7. Incised wound on right arm =” x =” x =”.

8. Incised wound on right arm 1″ x <” x <“. 9

The Autopsy Surgeon opined that on account of grievous injury to vital parts i.e. head and chest caused excessive haemorrhage which resulted in coma and death. Cause of death was Syncope.

14. Dr. M.K. Vashistha (PW.5) the Medical Specialist at Biaora, examined Ashfaq (PW.2) and prepared the report (Ex.P.10), according to which, he had sustained four injuries as under:

1. Incised wound 1 x 1/6 x 1/6 cm right side of the neck.

2. One bruise red 3 x 1 cm on the left arm.

3. Patient had complained of pain in the left leg but there was no external injury.

4. Abrasion on hip size = x = cm. The injuries were simple.

15. So far as Abdul Sayeed (A.11) is concerned, as per the prosecution he had a knife of 8″ and assaulted Chand Khan. It is evident from the evidence of Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4) that Chand Khan received cut injuries and stab wounds as found by Dr. R.P. Sharma (PW.3). As per the medical report, his left lung was found punctured due to a stab wound. The knife used in the crime was recovered by the Investigating Officer at the instance of the said appellant. He has also caused injury to Ashfaq (PW.2), an eye-witness. In view of the above, the trial Court as well 10

as the High Court reached the conclusion that he was one of the accused persons responsible for the death of Chand Khan.

16. So far as Rais alias Toun (A.5) is concerned, as per the evidence of Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4) when Shabir (since deceased), came to save his father Chand Khan, Rais Khan (A.5) attacked Shabir with sword. Dr. R.P. Sharma (PW.3) who examined Shabir deposed that the injuries suffered by Shabir were the result of the use of the weapon assigned to Rais alias Toun as well as other co-accused. Rais alias Toun had the sword which resulted these wounds. The trial Court as well as the High Court have found Rais responsible for killing Shabir.

17. So far as Rafiq (A.6) is concerned, as per the evidence of Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4), Rafiq used a Gupti for committing the crime. Injuries caused with the Gupti were found by Dr. R.P. Sharma (PW.3) on the body of Shabir. The Gupti used by Rafiq was 18″ in length and 1-1/2″ in thickness and it was sharp like a knife. The trial Court as well as the High Court recorded the specific finding that the wound found on the body of Shabir was by plying Gupti and this was done by appellant Rafiq on Shabir (deceased).

11

18. So far as Mumtaz Khan (A.9) is concerned, as per the evidence of all the three eye-witnesses, he was holding a Farsi and had beaten Chand Khan. There was a cut wound on the head of Chand Khan due to which the bone of the occipital region cracked and Dr. R.P. Sharma (PW.3) deposed that he had found the skull wound which resulted in cracking of the skull. The trial Court as well as the High Court, after appreciating the entire evidence on record came to the conclusion that Mumtaz Khan took an active part in beating Chand Khan, due to which he died spontaneously.

19. So far as Iqbal alias Bhura is concerned, as per the evidence of Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4), he had a sword and assaulted Shabir and the injury caused by him has been duly supported by the medical evidence. The trial Court convicted him vide judgment and order dated 11.1.2001 in a separate trial. The trial Court and the High Court found him guilty for committing murder of Shabir.

20. Ashfaq (PW.2) has stated that all the accused surrounded his father and attacked him with their weapons from all sides. He has named Rais alias Toun, Mumtaz Khan, Abdul Sayeed and Iqbal alias Bhura. It is also 12

evident from his deposition that while running away from the place of occurrence they mocked him and said: “however many of you come, we will see the end of you.” This shows that there was a common intention. Ashfaq has also explained how he had been injured. Anees (PW.1) has also deposed regarding the participation of all the five appellants and has explained what weapons they were carrying and how they had caused injuries to his father and brother. He has deposed that Chand Khan was killed by Abdul Sayeed and Mumtaz Khan and Shabir by Iqbal alias Bhura, Rais alias Toun and Rafiq. Usman Ali (PW.4), has named all the appellants along with the other co-accused who have been acquitted by the Courts below and has given full details of the incident. He also deposed that while causing the injuries, the culprits were shouting “kill them kill them”. He denied the suggestion that the appellants had not caused injury to Shabir and also denied the suggestion that Iqbal was not present there at the time of incident. He also denied the suggestion that Mumtaz Khan and Abdul Sayeed did not cause any injury to Chand Khan with Farsi and knife respectively.

21. It has strenuously been argued on behalf of the appellants that the injuries found on the person of victims could not be caused with the 13

weapons alleged to have been with the appellants and the same cannot be in consonance with the ocular evidence of Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4). Thus, appellants are entitled for the benefit of doubt as there is clear cut contradiction between the ocular and medical evidence. Identification in a Crowd of Assailants:

22. In cases where there are a large number of assailants, it can be difficult for a witness to identify each assailant and attribute a specific role to him. In Masalti v. State of Uttar Pradesh, AIR 1965 SC 202, this Court held as under:-

“Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the

unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the

unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence 14

carefully and decide which part of it is true and which is not.” [Emphasis added]

23. A similar view was taken by this Court in Kallu alias Masih & Ors. v. State of Madhya Pradesh, (2006) 10 SCC 313; and Viji & Anr. v. State of Karnataka, (2008) 15 SCC 786 observing that in such a case it is not possible that all the witnesses may specifically refer to the acts of each assailants.

24. In Bhag Singh & Ors. v. State of Punjab (1997) 7 SCC 712, while dealing with a similar contention, this Court observed: “It is a general handicap attached to all eyewitnesses, if they fail to speak with precision their evidence would be assailed as vague and evasive, on the contrary if they speak to all the events very well and correctly their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case an eyewitness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequence in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witnessed was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequence as it registered in his 15

mind the testimony cannot be dubbed as artificial on that score alone.”

25. In the instant case, a very large number of assailants attacked Chand Khan and Shabir (deceased), caused injuries with deadly weapons to them. The incident stood concluded within few minutes. Thus, it is natural that the exact version of the incident revealing every minute detail, i.e., meticulous exactitude of individual acts cannot be given by the eye-witnesses. Injured Witness

26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. 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 order to falsely implicate someone. “Convincing evidence is required to discredit an injured witness”. (Vide Ramlagan Singh & Ors. v. State of Bihar, AIR 1972 SC 2593; Malkhan Singh & Anr. v. State of Uttar Pradesh, AIR 1975 SC 12; Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC 957; Appabhai & Anr. v. State of Gujarat, 16

AIR 1988 SC 696; Bonkya alias Bharat Shivaji Mane & Ors. v. State of Maharashtra, (1995) 6 SCC 447; Bhag Singh & Ors. (supra); Mohar & Anr. v. State of Uttar Pradesh, (2002) 7 SCC 606; Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270; Vishnu & Ors. v. State of Rajasthan, (2009) 10 SCC 477; Annareddy Sambasiva Reddy & Ors. v. State of Andhra Pradesh, AIR 2009 SC 2261; Balraje alias Trimbak v. State of Maharashtra, (2010) 6 SCC 673).

27. While deciding this issue, a similar view was taken in, Jarnail Singh v. State of Punjab, (2009) 9 SCC 719, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:- “Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the

assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

In State of U.P. v. Kishan Chand, (2004) 7 SCC 629, a similar view has been reiterated observing that 17

the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana, (2006) 12 SCC 459). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.”

28. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.

29. Ashfaq (PW.2) had given graphic description of the entire incident. His presence on the spot cannot be doubted as he was injured in the incident. His deposition must be given due weightage. His deposition also stood fully corroborated by the evidence of Anees (PW.1) and Usmal Ali (PW.4). The 18

depositions so made cannot be brushed aside merely because there have been some trivial contradictions or omissions.

Medical Evidence versus Ocular Evidence

30. In Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727, this Court held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution’s case and unless reasonably explained it is sufficient to discredit the entire case.

31. In State of Haryana v. Bhagirath &amp; Ors., (1999) 5 SCC 96, it was held as follows:-

“The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.” [Emphasis added]

19

32. Drawing on Bhagirath’s case (supra.), this Court has held that where the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses’ account which had to be tested independently and not treated as the “variable” keeping the medical evidence as the “constant”. Where the eyewitnesses’ account is found credible and trustworthy, a medical opinion pointing to alternative possibilities can not be accepted as conclusive. The eyewitnesses’ account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the “credit” of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Vide Thaman Kumar v. State of Union Territory of Chandigarh, (2003) 6 SCC 380; and Krishnan v. State, (2003) 7 SCC 56). 20

33. In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484, this Court observed,

“Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.” [Emphasis added]

34. A similar view has been taken in Mani Ram & Ors. v. State of U.P., 1994 Supp (2) SCC 289; Khambam Raja Reddy & Anr. v. Public Prosecutor, High Court of A.P., (2006) 11 SCC 239; and State of U.P. v. Dinesh, (2009) 11 SCC 566.

35. In State of U.P. v. Hari Chand, (2009) 13 SCC 542, this Court re- iterated the aforementioned position of law and stated that, “In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy.”

21

36. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-`-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

37. In the instant case as referred to hereinabove, a very large number of assailants attacked one person, thus the witnesses cannot be able to state as how many injuries and in what manner the same had been caused by the accused. In such a fact-situation, discrepancy in medical evidence and ocular evidence is bound to occur. However, it cannot tilt the balance in favour of the appellants.

38. It has been canvassed on behalf of the appellants that there was no charge framed under Section 34 IPC by the trial Court and appellants and other co-accused have been charged under Section 147/148 IPC. All of them have been acquitted for the said charges. Thus, it was not permissible 22

for the High Court to convict the appellants with the aid of Section 34 IPC. Non-framing of charge is fatal to the prosecution. Thus, the appellants are entitled for acquittal on this ground alone.

Effect of Failure to frame proper charges

39. In State of Andhra Pradesh v. Thakkidiram Reddy &amp; Ors., (1998) 6 SCC 554, this Court considered the issue of failure to frame the proper charges. observing as under:

“10. Sub-section (1) of Section 464 of the Code of Criminal Procedure 1973 (`the Code’, for short)

expressly provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. Sub-section (2) of the said section lays down the procedure that the court of appeal, confirmation or revision has to follow in case it is of the opinion that a failure of justice has in fact been occasioned. The other section relevant for our purposes is Section 465 of the Code; and it lays down that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or

irregularity in the proceedings, unless in the opinion of that court, a failure of justice has in fact been occasioned. It further provides, inter alia, that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact 23

whether the objection could and should have been raised at an earlier stage in the proceedings.”

The Court further held that in judging a question of prejudice, as of guilt, the court must look to the substance of the matter and not to technicalities, and its main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. In the said case this Court ultimately came to the conclusion that despite the defect in the framing of charges, as no prejudice had been caused to the accused, no interference was required.

40. A Constitution Bench of this Court in Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116, considered the issue of failure to frame charges properly and the conviction of an accused for the offences for which he has not been charged and reached the conclusion as under:-

“86. … In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, 24

without a charge, can be set aside, prejudice will have to be made out. ….

87. … If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lesser degree, it will be an irregularity and prejudice by way of failure of justice will have to be established.”

41. This Court in Gurpreet Singh v. State of Punjab, (2005) 12 SCC 615, referred to and relied upon its earlier judgments in Willie (William) Slaney (supra) and Thakkidiram Reddy (supra), and held that unless there is a failure of justice and thereby the cause of the accused has been prejudiced, no interference is required if the conviction can be upheld on the evidence led against the accused. The Court should not interfere unless it is established that the accused was in any way prejudiced due to the errors and omissions in framing the charges against him.

A similar view has been re-iterated by this Court in Ramji Singh v. State of Bihar, (2001) 9 SCC 528; and Sanichar Sahni v. State of Bihar, (2009) 7 SCC 198.

42. There is no bar in law on conviction of the accused with the aid of Section 34 IPC in place of Section 149 IPC if there is evidence on record to show that such accused shared a common intention to commit the crime and 25

no apparent injustice or prejudice is shown to have been caused by application of Section 34 IPC in place of Section 149 IPC. The absence of a charge under one or the other or the various heads of criminal liability for the offence cannot be said to be by itself prejudicial to the accused, and before a conviction for the substantive offence without a charge can be set aside, prejudice will have to be made out. Such a legal position is bound to be held good in view of the provisions of Sections 215, 216, 218, 221 and 464 of Code of Criminal Procedure, 1973. (Vide: Dalip Singh & Ors. v. State of Punjab, AIR 1953 SC 364; Malhu Yadav & Ors. v. State of Bihar, (2002) 5 SCC 724; Dhaneswar Mahakud & Ors. v. State of Orissa, (2009) 9 SCC 307; and Annareddy Sambasiva Reddy & Ors. v. State of Andhra Pradesh, AIR 2009 SC 2661).

43. Thus, the law on the issue can be summarised to the effect that unless the accused is able to establish that the defect(s) in framing the charge(s) has caused real prejudice to him; that he was not informed as to what was the real case against him; or that he could not defend himself properly, no interference is required on mere technicalities. 26

44. If the instant case is examined in the light of the aforesaid settled legal propositions we do not find any force in the submissions made on behalf of the appellants.

Section 34 IPC

45. The aforesaid conclusion takes us to the issue raised by the appellants as to whether appellants could be convicted with the aid of Section 34 IPC. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the “common intention” to commit the offence. The phrase “common intention” implies a pre-arranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances existing thereto. The common intention under Section 34 IPC is to be understood in a different sense from the “same intention” or “similar intention” or “common object”. The persons having similar intention which is not the result of the pre- arranged plan cannot be held guilty of the criminal act with the aid of 27

Section 34 IPC. (See Mohan Singh & Anr. v. State of Punjab, AIR 1963 SC 174).

46. The establishment of an overt act is not a requirement of law to allow Section 34 to operate inasmuch this Section gets attracted when a criminal act is done by several persons in furtherance of the common intention of all. What has, therefore, to be established by the prosecution is that all the concerned persons had shared a common intention. (vide : Krishnan & Anr. v. State of Kerala, (1996) 10 SCC 508; and Harbans Kaur & Anr. v. State of Haryana, (2005) 9 SCC 195 ).

Undoubtedly, the ingredients of Section 34, i.e., that the accused had acted in furtherance of their common intention is required to be proved specifically or by inference, in the facts and circumstances of the case. (Vide: Hamlet alias Sasi & Ors. v. State of Kerala, (2003) 10 SCC 108; Pichai alias Pichandi & Ors. v. State of Tamil Nadu, (2005) 10 SCC 505; and Bishna alias Bhiswadeb Mahato & Ors. v. State of West Bengal, (2005) 12 SCC 657).

47. In Gopi Nath @ Jhallar v. State of U.P., (2001) 6 SCC 620, this court observed as under:

28

“8…..Even the doing of separate, similar or diverse acts by several persons, so long as they are done in

furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action — be it that it was not overt or was only a covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre- concerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case.”

48. In Krishnan and Anr. v. State represented by Inspector of Police, (2003) 7 SCC 56, this court observed that applicability of Section 34 is dependent on the facts and circumstances of each case. No hard and fast rule can be made out regarding applicability or non-applicability of Section 34. 29

49. In Girija Shankar v. State of U.P., (2004) 3 SCC 793, it is observed that Section 34 has been enacted to elucidate the principle of joint liability of a criminal act:

“Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances.” [Emphasis added] (Emphasis added)

50. In Virendra Singh v. State of Madhya Pradesh, JT 2010 (8) SC 319, this Court observed that:

“Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a pre- arranged and pre-meditated concert between the

accused persons for doing the act actually done, though 30

there might not be long interval between the act and the pre-meditation and though the plan may be formed suddenly. In order that section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34.”

51. Section 34 can be invoked even in those cases where some of the co- accused may be acquitted provided, it can be proved either by direct evidence or inference that the accused and the others have committed an offence in pursuance of the common intention of the group. (vide: Prabhu Babaji v. State of Bombay, AIR 1956 SC 51).

52. Section 34 intends to meet a case in which it is not possible to distinguish between the criminal acts of the individual members of a party, who act in furtherance of the common intention of all the members of the party or it is not possible to prove exactly what part was played by each of them. In the absence of common intention, the criminal liability of a member of the group might differ according to the mode of the individual’s 31

participation in the act. Common intention means that each member of the group is aware of the act to be committed.

53. In view of the aforesaid discussion, we are of the considered opinion that the High Court has rightly proceeded in the matter while setting aside the conviction of the appellants under Sections 147/148 IPC and convicting them with the aid of Section 34 IPC.

Sum up:

54. In view of the above, it is evident that an FIR had been lodged promptly within 20 minutes from the time of commission of the offence as the place of occurrence was in close proximity of Police Chowki and all the appellants along with other co-accused had been named therein. There had been an injured witness. The prosecution has explained the motive that the appellants did not like intervention of Chand Khan taking side of Kamla Bai who had been molested by persons of the accused party. Several hours after the lodging of the complaint by Chand Khan in that incident, the appellants attacked Chand Khan with motive in a pre-planned manner armed with deadly weapons and caused injuries. Shabir Khan, son of Chand Khan when came to rescue his father was also done away with. In the incident, Ashfaq 32

(PW.2) also got injured. The courts below after appreciating the evidence on record rightly came to the conclusion that the five appellants had been responsible for the said offences. The testimony of these witnesses had been subjected to searching cross-examination, but nothing has been brought on record to discredit the statement of either of the eye-witnesses.

55. In view of the above, we are of the view that the instant case does not present special features warranting review of the impugned judgment. Thus, there is no cogent reason to interfere with the impugned judgment and order dated 12.1.2006 passed by the High Court of Madhya Pradesh. The appeals lack merit and are accordingly dismissed.

……………………………..J.

(P. SATHASIVAM)

…………………………..J.

(Dr. B.S. CHAUHAN)

New Delhi,

September 14, 2010

Relevency of FIR lodged for whatever reasons after recording the inquest-see the Supreme Court Judgement dated 15-09-2010.

It cannot be held that if the FIR is lodged for whatever reason after recording the inquest report the same would be fatal to all the proceedings arising out of the Indian Penal Code…SC jt dt 15.09.2010

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 342 OF 2007

Sri Sambhu Das @ Bijoy Das & Anr.                    ………….. Appellants

Versus

State of Assam                                      …………..Respondent

JUDGMENT

H.L. Dattu, J.

1)     This appeal is directed against the judgment and order passed

by the Gauhati High Court in Criminal Appeal No. 63 of 2005, dated

26.04.2006, whereby and where under, the High Court has affirmed

the order passed by the Sessions Judge, Hailakandi, in Sessions Case

No.2 of 2002. The appellants are convicted under Section 302/34 IPC

and sentenced to imprisonment for life and to pay a fine of Rs.

10,000/- each, and in default, to undergo further imprisonment for six

months each.

2)         The case of the prosecution is that, on 07.06.1997 at about

5.00 P.M. the deceased Fanilal Das was returning home on a

1
rickshaw driven by Manilal Das (PW2). The deceased stopped the

rickshaw near Shiva temple and after offering his prayer, he came

back to the rickshaw and at that point of time, the appellants and

others assaulted the deceased and, thereafter, forcibly took him to

the house of Kunja Mohan where he was assaulted by all the

accused persons. It is their further case, that, one Upendra Das

informed the wife of the deceased about the assault on her husband

by the appellants and on hearing the same, she came to the place of

occurrence and saw the accused persons assaulting the deceased,

and on being informed by PW-3, police came to the place of

incident and took the injured to the hospital where he was declared

dead.   After completing the investigation, the accused persons

were charge-sheeted. Initially, four accused persons were tried by

the Sessions Judge, Hailkandi for commission of the offence under

Section 302/34 IPC. During the trial, four other persons were also

arrayed as accused and tried along with the appellants. All the

accused persons pleaded not guilty. During the course of the trial,

the prosecution examined eight witnesses. After completion of the

trial, the appellants were examined under Section 313 Cr.P.C.,

wherein the appellants completely denied their involvement in the

2
alleged offence. The learned trial Judge convicted the appellants

and two others for the offence under Section 302/34 IPC and

sentenced as stated earlier. This order of the Sessions Court is

confirmed by the Gauhati High Court by rejecting the criminal

appeals filed by the accused persons.

3)          This appeal is filed only by Sambhu Das @ Bijoy Das

(Accused No. 4) and Bibhu Das @ Sekhar Das (Accused No. 5).

4)      While assailing the judgment and order of the High Court, it is

contended by Shri M.N. Rao, learned senior counsel, that

admittedly, the Inquest Report was recorded by the Investigating

Officer at 9.30 PM and the FIR was lodged by the wife of the

deceased at 11.30 PM on 07.06.1997. Therefore, it is contended

that the First Information Report loses all authenticity if written

after Inquest Report. In aid of his submission, reliance is placed

on the observation made by this court in the case of Balaka Singh

& Ors. Vs. The State of Punjab, [1975(4) SCC 511] and Ramesh

Baburao Devaskar and Ors. Vs. State of Maharashtra, [2007(13)

SCC 501]. It is further contended that the High Court has failed to

address itself to certain crucial aspects of evidence and proceeded

3
to dispose of the appeal on general observations and more so, in a

very casual and cavalier manner which is impermissible in law.

Reliance is placed on the observation made by this court in the

case of Badri vs. State of Rajasthan, [1995 Supp. (3) SCC 521],

Ishvarbhai Fuljibhai Patni vs. State of Gujarat, [1995 (1) SCC 178]

and Lal Singh vs. State of Madhya Pradesh, [2003 (9) SCC 464].

It is further contended that the High Court has erred in not

appreciating the fact that the accused has put forward a reasonable

defence throughout the trial and as well as in their statement

recorded under Section 313 of Criminal Procedure Code. While

elaborating this contention, it is stated that prior to the occurrence,

the complainant’s husband and her husband’s younger brother

Chunnulal Das had got involved in the case regarding the murder

of their brother Arun Das and for that reason they have been

implicated in the present case out of that grudge. It is further

submitted that in the instant case, the High Court has made

departure from the rule, that when an accused person puts forward

a reasonable defence which is likely to be true and in addition,

when the same is supported by some prosecution witnesses, the

burden of proof on the other side becomes onerous, because a

4
reasonable and probable story likely to be true when pitted against

a weak and vacillating prosecution case and by that reasonable

doubt, the accused must get the benefit. It is further submitted that

this court, in the case of Hate Singh Bhagat Singh vs. State of

Madhya Bharat, [AIR 1953 SC 468] has held that when an accused

person puts forward a reasonable defence which is likely to be true

and in addition is supported by two prosecution witnesses, then the

burden on the other side becomes all the heavier because            a

reasonable and probable story likely to be true when pitted against

a weak and vacillating case is bound to raise reasonable doubts of

which the accused must get the benefit. It is also contended that

one important material witness, namely, Upen Das, who is said to

have informed PW1 that the accused person killed her husband has

not been examined by the prosecution, nor has any explanation for

not examining him as a witness been given by the prosecution and,

therefore, non-examination of Upen Das is fatal to the prosecution

story.

5)             The learned counsel for the State while justifying the

impugned judgment and order, would submit that the concurrent

5
findings on facts by the Sessions Court and the High Court need

not be interfered by this Court.

6)            The question that requires to be noticed and answered is,

whether this Court in exercise of the powers under Article 136 of

the Constitution of India, can upset the concurrent findings of fact

recorded by the Trial Court and the Appellate Court. Shri M.N.

Rao, learned senior counsel for the appellants, submits that this

court can take a different view and also come to different

conclusion than the one arrived at by the Trial and the Appellate

Court, if this Court prima facie comes to the conclusion that the

findings of fact reached by the Trial Court and confirmed by the

High Court suffers from any patent error of law or has resulted in

miscarriage of justice. In our view, the law on this issue is now

well settled by several pronouncements made by this court.

7)       In Dhananjay Shanker Shetty vs. State of Maharashtra, [(2002)

6 SCC 596], it is stated that :

“Ordinarily, after appraisal of evidence by the two
courts below and recording concurrent verdict of
conviction, this Court does not interfere with the same,
but where it is found that compelling grounds exist and
there would be failure of justice, a duty is enjoined
upon it to reappraise the evidence itself for doing
complete justice in the case.”

6
8)         In Ravinder Parkash & Anr. vs. State of Haryana, [(2002) 8

SCC 426], it is observed :

“…..It is true normally this Court would not substitute
its subjective opinion of the evidence with that of
concurrent findings of the two courts below. However,
having considered the findings of the courts below, we
have noticed that the trial court, though by a lengthy
judgment has found the appellants guilty, we have found
that finding is not supported by the material on record.
Therefore, we have considered the prosecution evidence
independently and have disagreed with the same for
reasons mentioned in this judgment. We have not done
this by merely substituting our subjective satisfaction but
we have done the same for reasons based on material on
record…….” (Para 14)

9)       In Bharat vs. State of Madhya Pradesh, [(2003) 3 SCC 106], it

is observed that :

“….The prosecution has to prove its case against the
appellant beyond reasonable doubt. The chain of
circumstances, in our opinion, is not complete so as to
sustain the conviction of the appellant. There is thus no
substance in the contention urged on behalf of the State
that this Court may not interfere in the concurrent
findings of fact of the courts below.”
(Para 12 )

10)         In Mousam Singha Roy & Ors. vs. State of West Bengal,

[(2003) 12 SCC 377], it is stated :

“We are also aware that this Court does not disturb
the concurrent findings of the courts below if the same
are based on legal evidence merely because another view
is possible. Thus, keeping in mind the caution expressed
by Baron Alderson (supra) as also the need to respect the
concurrent findings of the two courts below, we have
assessed the evidence in this case very carefully, but in

7
spite of the same we are unable to concur with the
findings of the courts below. In our opinion, both the
courts below have departed from the rule of prudence
while appreciating the evidence led by the prosecution.”
(Para 29 )

11) In Ganga Kumar Srivastava vs. State of Bihar, [(2005) 6 SCC

211], it is observed :

“From the aforesaid series of decisions of this Court
on the exercise of power of the Supreme Court under
Article 136 of the Constitution following principles
emerge:
(i) The powers of this Court under Article 136 of the
Constitution are very wide but in criminal appeals this
Court does not interfere with the concurrent findings of
fact save in exceptional circumstances.
(ii) It is open to this Court to interfere with the
findings of fact given by the High Court, if the High
Court has acted perversely or otherwise improperly.
(iii) It is open to this Court to invoke the power under
Article 136 only in very exceptional circumstances as
and when a question of law of general public importance
arises or a decision shocks the conscience of the Court.
(iv) When the evidence adduced by the prosecution
fell short of the test of reliability and acceptability and as
such it is highly unsafe to act upon it.
(v) Where the appreciation of evidence and finding is
vitiated by any error of law of procedure or found
contrary to the principles of natural justice, errors of
record and misreading of the evidence, or where the
conclusions of the High Court are manifestly perverse
and unsupportable from the evidence on record.
(Para 10)

12) This Court, in exercise of its powers under Article 136 of the

Constitution, will not re-open the findings of the High Court when

there are concurrent findings of facts and there is no question of

8
law involved and the conclusion is not perverse. Article 136 of the

Constitution, does not confer a right of appeal on a party. It only

confers a discretionary power on the Supreme Court to be

exercised sparingly to interfere in suitable cases where grave

miscarriage    of   justice   has   resulted   from    illegality       or

misapprehension or mistake in reading evidence or from ignoring,

excluding or illegally admitting material evidence. [See Basudev

Hazra v. Matiar Rahaman Mandal - AIR 1971 SC 722].

13)Keeping in view the aforesaid settled legal principles, we now

proceed to examine the main contention canvassed by learned

senior counsel Shri M.N. Rao, appearing for the appellant. It is

submitted that in the instant case, the investigating officer (PW8),

has recorded/prepared the inquest report on 7.6.1997 at 9.30 PM

and at the instance of PW1, the first information report was

recorded by PW8 on 7.6.1997 at 11.30 PM under Sections 147,

148, 149, 341, 342, 325, 326 and 302 of IPC against four persons

and, therefore, it is contended that since FIR is lodged after inquest

was held, the FIR is not reliable. Alternatively, it is contended that

in a case under Section 302 read with Section 32 IPC, First

Information Report cannot be lodged after the inquest has been

9
held. Reliance, as we have already stated, is on the decision of this

Court in Balkasingh’s case (supra) and in Ramesh Babu Rao

Devaskar’s case (supra).

14)   In Balaka Singh’s case, it was observed by this Court, that the

names of four accused out of nine were missing in the body of the

Inquest Report and this omission was not explained and, therefore,

it lead to the probability that FIR must have been prepared after the

preparation of Inquest Report. That was a case where there were

nine accused persons and the names of five accused were

mentioned in the Inquest Report.          The A.S.I. had no valid

explanation for the same. It was also found by the Court that FIR

was registered subsequently. Therefore, the observation of this

Court is to be understood in that background. We do not think that

this decision lays down that under all circumstances, the First

Information Report loses its authenticity, if it is filed after Inquest

Report.

15) In Ramesh Babu Rao Devaskar’s case, First Information Report

was lodged after inquest was held and the same was based on the

version of alleged eye witness. This court was of the view that

10
there was no explanation why FIR was not lodged by eye witness

and also noticed that the name of only one accused was mentioned

in the FIR. However, in the Inquest Report statements of Panch

witnesses recorded to the effect that some unknown assailants

killed the deceased. Apart from the above omission, copy of the

FIR was sent to the concerned Magistrate after four days, sharing

of common object by other accused persons with the accused who

was named in the FIR was not made out and one of the PWs turned

hostile and testimony of other two PWs was not reliable. In view

of these discrepancies, this Court, on facts, held it would be

hazardous to record conviction of the accused.

16)   In the present case, there is the documentary evidence in the

form of G.D. entry No.164 recorded by PW-8 in the General Diary

on 07.06.1997 at about 6.30 P.M.     That entry was made on the

telephonic   message/information      supplied   by    Asabuddin

Mazumdar, PW-3. It is clearly stated therein by PW-3 that a man

named Fanilal Das was lying in a serious condition on the side of

verandah of Chandan Das. It was on receipt of this information

that PW-8 went to the place of occurrence of the incident, drew up

the inquest report, made seizure of the material objects and

11
recorded the statement of those present, including PW-1.

Admittedly, the inquest report is prepared by PW-8 at 9.30 P.M.

and the formal FIR is lodged by PW-1 at 11.30 P.M. The learned

senior counsel Shri M.N. Rao, by placing his fingers on the

admission made by PW-8 in his evidence would contend, that, FIR

loses its authenticity if it is lodged after the inquest report is

recorded. This submission of the learned counsel is a general

proposition and may not be true in all cases and all circumstances.

This general proposition cannot be universally applied, by holding

that if the FIR is lodged for whatever reason after recording the

inquest report the same would be fatal to all the proceedings

arising out of the Indian Penal Code.

17)The Inquest Report is prepared under Section 174 Cr.P.C. The

object of the inquest proceedings is to ascertain whether a person

has died under unnatural circumstances or an unnatural death and

if so, what the cause of death is? The question regarding the

details as to how the deceased was assaulted or who assaulted him

or under what circumstances he was assaulted, is foreign to the

ambit and scope of the proceedings under Section 174 Cr.P.C. The

12
names of the assailants and the manner of assault are not required

to be mentioned in the inquest report. The purpose of preparing

the inquest report is for making a note in regard to identification

marks of the accused. The inquest report is not a substantive

evidence. Mention of the name of the accused and eye witness in

the inquest report is not necessary. Due to non-mentioning of the

name of the accused in the inquest report, it cannot be inferred that

FIR was not in existence at the time of inquest proceedings.

Inquest report and post mortem report cannot be termed to be

substantive evidence and any discrepancy occurring therein can

neither be termed to be fatal nor even a suspicious circumstance

which would warrant a benefit to the accused and the resultant

dismissal of the prosecution case. The contents of the inquest

report cannot be termed as evidence, but they can be looked into to

test the veracity of the witnesses. When an officer incharge of

Police Station receives information that a person had committed

suicide or has been killed or died under suspicious circumstances,

he shall inform the matter to the nearest Magistrate to hold Inquest.

A criminal case is registered on the basis of information and

investigation is commenced under Section 157 of Cr.P.C. and the

13
information is recorded under Section 154 of Cr.P.C. and,

thereafter, the inquest is held under Section 174 Cr.P.C.      This

Court, in the case of Podda Narayana Vs. State of Andhra Pradesh

[AIR 1975 SC 1252], has indicated that the proceedings under

Section 174 Cr. P.C. have limited scope.        The object of the

proceedings is merely to ascertain whether a person has died in

suspicious circumstances or an unnatural death and if so, what is

the apparent cause of the death. The question regarding details as

to how the deceased was assaulted or who assaulted him or under

what circumstances, he was assaulted is foreign to the ambit and

scope proceeding under Section 174. Neither in practice nor in law

was it necessary for the Police to mention these details in the

Inquest Report. In George Vs. State of Kerala AIR 1998 SC 1376,

it has been held that the Investigating Office is not obliged to

investigate, at the stage of Inquest, or to ascertain as to who were

the assailants. In Suresh Rai Vs. State of Bihar AIR 2000 SC

2207, it has been held that under Section 174 read with Section

178 of Cr. P.C., Inquest Report is prepared by the Investigating

Officer to find out prima facie the nature of injuries and the

possible weapon used in causing those injuries as also possible

14
cause of death.

18)This Court has consistently held that Inquest Report cannot be

treated as substantive evidence but may be utilized for

contradicting the witnesses of the Inquest. Section 175 Cr. P.C.

provides that a Police Officer proceedings under Section 174 may,

by an order in writing, summon two or more persons for the

purpose of the said investigation. The provisions of Sections 174

and 175 afford a complete Code in itself for the purpose of

inquiries in cases of accidental or suspicious deaths.

19)        Section 2 (a) of the Cr.P.C. defines “Investigation” as

including all the proceedings under this code for the collection of

evidence conducted by the police officer.

20)      Section 157 of the Code says that if, from the information

received or otherwise an officer incharge of a police station has

reason to suspect the commission of an offence which he is

empowered to investigate, he shall forthwith send a report of the

same to the Magistrate concerned and proceed in person to the spot

to investigate the facts and circumstances of the case, if he does

15
not send a report to the Magistrate, that does not mean that his

proceedings to the spot, is not for investigation. In order to bring

such proceedings within the ambit of investigation, it is not

necessary that a formal registration of the case should have been

made before proceeding to the spot. It is enough that he has some

information to afford him reason even to suspect the commission

of a cognizable offence. Any step taken by him pursuant to such

information, towards detention etc., of the said offence, would be

part of investigation under the Code.

21)In Maha Singh vs. State (Delhi Administration),               [(1976)

SCC 644], this court considered a case in which police officer

arranged a raid after recording a complaint, but before sending it

for registration of the case. It was held in that case that “the

moment the Inspector had recorded a complaint with a view to take

action to track the offender, whose name was not even known at

that stage, and proceeded to achieve the object, visited the locality,

questioned the accused, searched his person, seized the note and

other documents, turns the entire process into investigation under

the Code.

16
22) In State of U.P. vs. Bhagwant Kishore, [AIR 1964 SC 221], this

court stated that “Though ordinarily investigation is undertaken on

information received by a police officer, the receipt of information

is not a condition precedent for investigation.”

23)         The principles now well settled is that when information

regarding a cognizable offence is furnished to the police that

information will be regarded as the FIR and all enquiries held by

the police subsequent thereto would be treated as investigation,

even though the formal registration of the FIR takes place only

later.

24)Assuming that some report was made on telephone and that was

the real First Information Report, this by itself would not affect the

appreciation of evidence made by the learned Sessions Judge and

the conclusions of fact drawn by him. The FIR under Section 154

Cr. P.C. is not a substantive piece of evidence. Its only use is to

contradict or corroborate the maker thereof. Therefore, we see no

merit in the submission made by learned counsel for the appellants.

17
25)Now we focus our attention to the merits of the appeal. The

Postmortem was conducted by Dr. Ashit Som (PW6). From the

Postmortem Report of the deceased Fanilal Das, it appears that

injuries on their examination were found to be ante mortem in

nature. In his opinion, death is due to shock and haemorrhage

resulting from the injuries sustained which were caused by blunt

weapons.    Unfortunately, the doctor has not stated in his report

whether the injuries sustained by the deceased were of homicidal

in nature. Therefore, we have seen the report furnished by the

doctor, who, as per his post mortem report found lacerated wound

over the middle of frontal region of the scalp with fracture of

frontal bone corresponding to the injury, lacerated wound over

right parietal of the scalp 6cmx2cmx2cm fracture of parietal bone,

two incisior and two canine teeth of both jaws were dislocated.

Dislocation of both elbow and ankle joint was also there. He has

further opined that the injuries were fresh and caused by a blunt

object. It has come in the evidence of PW-8 that immediately after

the inquest report was prepared, the body of the deceased was sent

for post mortem. This would coincide with this evidence on this

aspect. Secondly, the seizure report which is marked as one of the

18
exhibit in the evidence, he has clearly stated the material objects

seized by him, such as nylon rope, bamboo stick, iron chain, dao,

rod and lathi etc. A little comparison of these seized objects and

the wounds found on the body of the deceased, a safe inference can

be drawn that this part of evidence of this witness can be believed,

since it corroborates with the opinion of the Doctor, PW-6.

Therefore, it can be safely inferred that the deceased died because

of the injuries sustained by the assault made by other persons and

not by self inflicted wounds.

26)The prosecution case solely rests on the evidence of PW1. She is

the wife of the deceased. PW2, though turned hostile, has spoken

to a part of the incident. PW3 is the U.D.P. Secretary of Paikan

Bazar. He is alleged to have gone to Paikan Tempur Bazar to

purchase sweets and having heard from the people gathered on the

side of the verandah of Chandu Das’s house at the Paikan Bazar,

that Fanilal Das lying in a serious condition, he informed the

Police from Ballu Das’s telephone. This version of PW3 appears

to be correct. This information, in fact, triggered the Investigating

19
Agency to reach the place of incident after making necessary

entries in the Registers at the Police Station.

27)The evidence of PW1 requires a thorough scrutiny. PW1 is the

wife of the deceased. According to her, one Upendra Das informed

her that the accused persons including the appellants are assaulting

her husband in Kunja Mohan’s house and on receiving the

information, it is further stated by her, that she immediately rushed

to that place and found that the accused persons had tied the hands

of her husband and were assaulting him. It has also come in her

evidence that she saw all the accused persons dragging her

husband inside their house. She has further stated around that

time, the Police Party reached the spot and took her husband in a

vehicle and she also accompanied her husband in the same vehicle

and on arriving at the hospital, the doctors declared that her

husband was dead and after inquest of the dead body, she returned

home with the help of police and immediately she lodged the First

Information Report (Ext.1). In her cross-examination, suffice it to

say, that nothing very striking except minor contradiction has been

elicited, which would not shake her credibility. In fact, she has

20
stated that immediately after the Postmortem of the dead body, she

lodged the FIR with the Police and she has further denied the

suggestion that she did not tell the police that the accused persons

had assaulted her husband and killed him while he was returning

home from Hailkandi Town on a Rickshaw.               Therefore, two

important aspects emerge from her evidence before the Trial Court.

Firstly, she has seen that her husband was tied by means of a rope

in the house of Kunj Mohan Das and secondly, the accused persons

including the appellants were assaulting her husband. The case of

the prosecution and the fate of the accused entirely depend on her

version and, therefore, as we said earlier, it is on her testimony that

the fate of these accused persons/appellants really hinges. The

reasons for not examining Upendra Das, who is supposed to have

informed PW1 about the incident, is not explained by the

prosecution. Therefore, we might have to eschew this part of the

evidence of PW1, since no effort is made by the prosecution to

explain the reason for non-examination of one of the important

persons, who is said to have informed PW1 about the assault and

dragging of the deceased into the house of first accused, who is not

before us. Then, the next question that would arise is, can we

21
believe, as has been done by both the Courts below, the other part

of the testimony of this witness. At this juncture, we intend to add

that if the prosecution fails to explain the reason for non-

examination of an important witness, who is supposed to have

informed the alleged incident, should the accused persons go scot

free.   It is a difficult question, sometimes difficult to answer.

Since, it is noticed by this Court time and again that in number of

criminal cases, because of sloppy attitude shown by the

prosecution, the real culprit goes scot free. It is no doubt true that

when her statement was recorded under Section 161 Cr.P.C., she

had not implicated four other accused persons but certainly

implicated the appellants and two other accused persons. Merely

because she has made some improvement in the FIR lodged by her,

we cannot totally discard her testimony.

28)PW8 is the Investigating Officer. He was attached to Hailakandi

Police Station. He was the one who visited the place of occurrence

on being directed to do so by the office-in-charge of the Police

Station. In his evidence, he has stated that Iti Mohan Das-PW3

took him to the place of occurrence and he found the injured

22
Fanilal Das tied at the veranda of the accused persons. It has also

come in his evidence that on reaching the place of occurrence, he

drew up sketch map of the place of occurrence, and seized

incriminating materials. He has also stated that he removed the

injured to Hailakandi Civil Hospital where the Medical Officer

declared him dead. It has also come in his evidence that he was

the one who prepared the Inquest Report. He further narrates that

PW2 informed him that the deceased was travelling in his rickshaw

and at that time, Chandra Das@Smritikanta and two unknown

persons dragged him out of the rickshaw and assaulted him by

means of rod, hunter etc. Though PW2 turned hostile, their part of

evidence supports the case of the prosecution.       In his cross

examination, defence has elicited from him that Inquest Report

was prepared by him at 9.30 PM and FIR was registered at 11.30

PM. Much was made at out of this admission by learned senior

counsel arguing for the appellants, we have already answered this

issue while considering the issue that whether FIR loses all

authenticity if written after Inquest Report. The other important

admission that was made by him that when he recorded the

statement of PW1, she did not mention the names of Subhash, Bela

23
Krishna and Rajan, but had mentioned the names of all the other

accused persons.    Her version that she went to the place of

occurrence on being informed to her about the assaulting of her

husband by the accused persons is corroborated in his testimony.

It is also of some importance that PW-1 for the first time, in her

evidence before the Court, implicated them and that is how, they

were arrayed as co-accused and tried along with others.         The

learned Trial Judge, however, has acquitted those accused persons.

In our view, rightly so. In our opinion, it is not necessary for the

prosecution to examine every other witness cited by them in the

charge-sheet. Mere non-examination of some persons does not

corrode the vitality of the prosecution version, particularly, the

witnesses examined have withstood the cross-examination and

pointed to the accused persons as perpetrators of the crime. The

Trial Court and the High Court have come to the conclusion that

the evidence of PW1 is trustworthy and reliable. We have also

carefully perused the evidence of PW1, whose evidence is

corroborated by PW-8 and the Postmortem report issued by PW6,

we are convinced that the Trial Court and the High Court were

justified in believing the testimony the testimony of PW-1.

24
29)Manilal Das – PW2        is declared hostile by the prosecution.

However, in his examination-in-chief, he says that he was carrying

Fanilal Das in his Rickshaw and he stopped the Rickshaw at Tepur

Bazar on the request made by the deceased and it is at that time,

the deceased had a quarrel with some people and some persons

assaulted him with blunt objects. In his cross-examination by the

learned counsel for the prosecution, he denies the suggestions put

to him with reference to his statement made under Section 161 Cr.

P.C. before the Investigating Officer.

30)Md. Asaf Ali Majumdar – PW3, Md. Masuraff Ali Barbhuiya -

PW4, Harmendra Das-PW5 are brought in by the prosecution as

eye-witnesses to the occurrence.     But all of them have turned

hostile. Unfortunately, the trend in this country appears to be, as

the time passes, dead are forgotten and the living with a criminal

record are worshipped and adored and no witness would like to

speak against them. The Trial Court and the High Court has not

given any credence to their evidence.

25
31)The testimony of Itimohan Das -PW7 has some relevance. He is a

local tea shop owner. He has stated that he accompanied the

Police to the house of the accused and found the deceased tied with

a rope in the verandah of Kunja Mohan. He also states that he saw

some injuries on the body of the deceased person.           He also

confirms that the Investigating Officer seized a chain, a lathi, one

dao and a rope.

32)In our view, having carefully seen the evidence of PW1, which is

corroborated by the postmortem report issued by PW6 and the

evidence of PW8, it is trustworthy and reliable. The Trial Court

and the High Court have accepted her evidence while holding that

the accused persons in furtherance of the common intention,

assaulted Fanilal Das and killed him. We do not find any good

reason to upset this finding of the Trial Court and the High Court.

33)The learned senior counsel submitted that the High Court in a most

casual manner has rejected the appeals filed by the accused. This

assertion, in our opinion, is not justified. The High Court has

arrived at its findings after examination and consideration of the

26
main features of evidence. It is only thereafter, the High Court has

affirmed the findings of the trial court while convicting the accused

persons.

34)In view of the foregoing discussion, we do not see any merit in this

appeal. Accordingly, it is dismissed.

……………………………………….J.
[ DR. MUKUNDAKAM SHARMA ]

……………………………………….J.
[ H.L. DATTU ]

New Delhi,
September 15, 2010.

27

Consequence of contradiction-Supreme Court Judgement dated 16-09-2010

Unless a contradiction is proved by putting it to the person who records the original statement, such contradiction is of no consequence…sc JT DT 16.09.2010

1

“Reportable”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1164 OF 2005

Sunder Singh                                 … Appellant

Versus

State of Uttaranchal                               … Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1.   Appellant herein challenges the judgment of the High

Court affirming the judgment passed by the Sessions Court.

The Sessions Judge convicted the appellant/accused Sunder

Singh for offences under Sections 302, 307 and 436, Indian

Penal Code (IPC).    While he was awarded the death sentence

along with a fine of Rs.5,000/- and in default to suffer

further rigorous imprisonment for one year, he was given the

punishment of seven years along with fine of Rs. 5,000/- and

in default to suffer further rigorous imprisonment for one

year separately on the other two counts.

2.   The incident in this case had taken place on 30.6.1989

in village Mahargheti, Patwari Circle Dangoli in the newly

formed District Bageshwar (which was part of District Almora
2

at the time of incident).    In this ghastly incident, Pratap

Singh, his wife Nandi Devi, his elder son Balwant Singh

(aged about 28 years), another son Prem Singh (aged about 19

years), daughter Kamla (aged about 16 years) lost their

lives while wife of Balwant Singh, namely, Vimla Devi (PW-1)

sustained grievous burn injuries.      Five victims who lost

their lives including Balwant Singh were roasted alive and

died either on the spot or while being taken to the hospital

or in the hospital.       Balwant Singh, however, was almost

beheaded while he also suffered the burn injuries.        The

prosecution alleged that this incident took place at about

10 p.m. when all the victims were taking their dinner in the

ground floor room of their house.       The appellant/accused

came there with jerry can containing petrol and burning

torch and threw the petrol in the room and after setting

fire by torch, he shut the door of the room. Though Balwant

Singh was in flames he managed to come out of the room by

opening the door.     However, as soon as he came out of the

room, the accused who was still waiting there gave him a

sword blow on the neck because of which he fell down dead

out side the house.       The other five family members who

sustained severe burns also died barring Vimla Devi who

alone survived.     Nandi Devi died on the way to the Primary

Health Centre at Baijnath while Pratap Singh also died there
3

itself.    Kamla and Prem Singh died in the District hospital,

Almora later on, where they were shifted from Baijnath.

3.   Informant Kheem Singh (PW-2) prepared a written report

and handed over to the Circle Patwari, Hyat Singh (PW-13).

In fact Hyat Singh (PW-13) came almost immediately after the

incident and so did the other witnesses like Chanar Singh

(PW-3) and Rewadhar (PW-4).        At the time when they reached

the spot almost simultaneously, Pratap Singh was alive, who

told these witnesses that accused Sunder Singh had burned

them by throwing petrol from jerry can and by torching the

house    thereafter.    Even   Vimla     Devi   (PW-1),    the   wife    of

Balwant Singh told Hyat Singh (PW-13) about the incident and

also about the attack on Balwant Singh by the accused.                 Hyat

Singh (PW-13) started the investigation.            He inspected the

burnt house and the spot where Balwant Singh’s body was

lying.     He   found   that   Balwant    Singh   was     dead   and    had

suffered a serious injury on his neck.             The other injured

barring Balwant Singh were sent first to the Primary Health

Centre, Baijnath.       Nandi Devi, however, died even before

reaching the Primary Health Centre, Baijnath, while Pratap

Singh is said to have died after reaching the Health Centre.

Dr. K.C. Joshi (PW-12) examined Vimla Devi (PW-1) and noted

the injuries suffered by her, so also Kamla and Prem Singh
4

were examined by him, and he noted their injuries in the

medical   certificates   (Exhibits         Ka-9,      Ka-10   and   Ka-11).

Thereafter,   the   injured   were       sent    to   District   Hospital,

Almora in view of the seriousness of their injuries.                  When

the three injured were at District Hospital, Almora, the

dying declarations of Prem Singh and Vimla Devi (PW-1) were

recorded on 1.7.1989 by Narender Singh Patel (PW-9), Sub-

Divisional Magistrate, Baramandal, District Almora.                  Before

this, Hyat Singh (PW-13) had completed his inspection of all

the spots and had attached burnt radio, damaged plastic

gallons, burnt breads and cut pieces of can from the scene

of offence.   He also found a cover of the sword (described

as `Khol’) and also a pistol which had two bullets in it.

He also held the inquest on the dead body of Balwant Singh

and thereafter on the body of Pratap Singh and Nandi Devi.

These bodies were sent for post mortem.                  In the District

Hospital, Almora, Prem Singh died on 1.7.1989 itself while

Kamla died later on after the treatment.               Vimla Devi (PW-1),

however, miraculously survived.            The inquests and the post

mortem on the dead bodies of Kamla and Prem Singh were also

conducted later on by the doctors.              All the five dead bodies

had suffered extensive burn injuries, almost to the extent

of 70% or 80%.      Vimla Devi (PW-1), however, miraculously

escaped and survived, though she had also suffered 70% of
5

the burn injuries.         After the preliminary investigation was

completed by Hyat Singh (PW-13), the same was entrusted to

C.B.C.I.D. and Inspector K.R. Tamta (PW-14), who completed

the remaining formalities of the investigation.                     The accused

was absconding.       He was found only in July, 2002 after a

lapse   of   12   years.      It    was       then    that    the   matter   was

committed    to   Sessions     on   the       basis    of     the   chargesheet

already filed.

4.   The chargesheet was for the offences under Sections

302, 307 and 436, IPC.         The Sessions Judge framed charges.

Fourteen witnesses were examined in support of the charges

including Vimla Devi (PW-1) who was the injured eye witness.

Kheem   Singh     (PW-2),    who    was       the    author    of    the   First

Information Report (FIR), was examined to prove the same.

Chanar Singh (PW-3) and Rewadhar (PW-4) were the witnesses

who reached the spot almost immediately after the incident.

They were examined as the panch witnesses.                    Dan Singh (PW-5)

also acted as a panch on the inquest, so also Daya Krishna

(PW-7) and Ramesh Singh Rotella (PW-8) were examined to

prove the inquest panchnamas on the dead bodies.                       Narender

Singh Patel (PW-9), Sub-Divisional Magistrate, Baramandal,

District Almora was examined to prove the dying declarations

of Vimla Devi (PW-1) and Prem Singh, which was recorded by
6

him on 1.7.1989.       Dr. N.D. Punetha (PW-6), Dr. H.G.S. Manral

(PW-10)   and   Dr.    Nanda   Vallabh   Sharma   (PW-11)   were   the

doctors conducting the post mortem, while Dr. K.C. Joshi

(PW-12) was the doctor who had examined Vimla Devi (PW-1)

and Prem Singh and had issued medical certificates to them.

Hyat Singh (PW-13), the investigating Patwari and Inspector

K.R.   Tamta    (PW-14)   were   examined   as    the   investigating

witnesses.

5.     The accused abjured his guilt.       He raised the defence

of false implication on account of the enmity due to land.

However, learned Sessions Judge came to the conclusion on

the basis of the evidence of Vimla Devi (PW-1) and the dying

declaration of Prem Singh and the other substantive evidence

that it was accused Sunder Singh who had torched the ground

floor room on the fateful day resulting in the victims being

roasted alive.        It was also held that the prosecution had

proved that the accused had dealt a sword blow on Balwant

Singh almost beheading him and on that count proceeded to

convict the accused and awarded the sentences which have

already been mentioned.

6.     Since the death sentence was ordered there was a death

reference made in the High Court. The accused also filed an

appeal challenging his conviction. The High Court came to
7

the   conclusion   that   the   Sessions   Judge   was   right   in

convicting the accused.     The High Court also endorsed the

opinion of the Sessions Judge that this was a rarest of rare

case and, therefore, affirmed the death sentence awarded to

the accused by the Sessions Judge.     The judgment affirmed by

the High Court has now fallen for our consideration.

7.    Shri Y.P. Singh who was appointed as Amicus Curiae

urged before us that it could not be said that it was the

accused who was the perpetrator of this crime.       According to

the learned Counsel, the prosecution was not able to prove

the guilt.    He contended that the evidence of Vimla Devi

(PW-1) could not be accepted as there were inherent pitfalls

in her evidence.   Firstly, she was an interested witness and

secondly, her ability to see at night at 10 O’clock was

suspect. We have been taken through the whole evidence to

show that there were contradictions and material omissions

in her evidence.     The learned Counsel further argued that

the so-called dying declaration by Prem Singh was also a

suspect document and was not creditworthy.         He pointed out

that the said dying declaration of Prem Singh did not have

the endorsement of the doctor about Prem Singh being in fit

condition to make a dying declaration.
8

8.     Lastly, learned Counsel suggested that this could not

be said to be a rarest of rare case and the High Court has

erred in affirming the death sentence.

9.     As   against    this,     the    learned      Counsel     appearing      on

behalf of the State supported the judgment and contended

that    the   evidence     of    Vimla       Devi    (PW-1)     was    extremely

important     and   credible      and    she       was   herself      an   injured

witness.      He pointed out that being a relative and having

lost her near and dear ones she is not likely to screen the

real offender.        She had all the opportunity to see and since

the accused was the real uncle of her husband, there was no

question of any mis-identity also.                  He pointed out that the

evidence is extremely natural and she had not tried to rope

in other persons.         It was further pointed out that there was

nothing to suspect the dying declaration of Prem Singh.                        As

regards the absence of the endorsement of the doctor, the

learned Counsel suggested that it cannot be forgotten that

the said dying declaration is recorded by an independent

witness.      He also pointed out that the victim was fully

conscious and had survived after the dying declaration for

substantial time which would suggest that he was completely

conscious     at    the   time    when       the    dying     declaration      was

recorded.     It was further argued by the learned Counsel that
9

this was the most dastardly act on the part of the accused

that he not only set the house to fire but also closed the

door thereby he displayed his foul intention to eliminate

the whole family and he was successful in eliminating the

whole family. Learned Counsel pointed out that two of the

victims were extremely young being 16 years and 19 years old

and had not even seen their lives.            The learned Counsel

brought to our notice the fact that the accused remained

absconding   for     12   long   years.     His   being   remaining

absconding for 12 years was also a clear cut circumstance

against him. According to the learned Counsel, therefore,

this was a rarest of rare case.

10.   It has to be borne in mind in this case that there is

no scope of a mistaken identity for the simple reason that

the accused was the real brother of Pratap Singh.            Again,

because the house was set to fire there was ample light

available for identifying the accused.

11.   The prosecution basically relied on the evidence of

Smt. Vimla Devi (PW-1) whose evidence was examined by us

very closely.      She is a natural witness and there can be no

dispute about her presence on the spot.           She is also an

injured witness as she has herself suffered 70% burns.         She

was very fortunate to survive.          Learned counsel criticized
10

the evidence by saying that she had obviously deposed in an

unnatural manner by claiming that the accused was carrying

three Jerry cans, opened them one by one and poured petrol.

It was also pointed out that initially in her statement

which was recorded as dying declaration, she had suggested

that the room was set to fire by a match stick.                       In her

cross   examination,     however,       she   refuted     that    claim.     A

fantastic    theory    was   introduced       in    her   cross-examination

that her husband died because he dashed against sharp stone.

Considering the overall evidence which has been accepted by

the Trial Court and the High Court, we are of the clear

opinion that this witness is reliable and the Courts below

committed no error in accepting the evidence of Vimla Devi

(PW-1).      It     cannot   be    forgotten       that   the    witness    has

identified the jerry cans, the sword etc. which were lying

in her courtyard. There were undoubtedly some contradictions

and omissions in her evidence and the dying declaration but

in our opinion they were not substantial enough so as to

affect the credibility of her evidence.                    She undoubtedly

suggested in her Examination-in-Chief that the accused was

carrying    jerry    cans.        She   has   referred    `jerry    cans’    in

plurals- “Uske hath me petrol va diesel k jerry can thhe”.

She then identified the three jerry cans when the three

jerry cans, which were attached, were produced in the Court.
11

She also identified the cover of the sword and also the

pistol which was left behind and was found by Hyat Singh

(PW-13).     She has then identified all the other material

objects like radio etc.     In her Cross-Examination, she again

asserted that the accused had three jerry cans, which she

described as gallons.     She then described that the caps of

these jerry cans were cut.      She could not, however, tell as

to the capacity of the said jerry cans nor could she speak

about their colour.      She accepted the suggestion that the

accused first threw the petrol from one jerry can and then

from the second and the other.        She then asserted that they

were not set to fire with the match box on which she was

contradicted with her previous statement, wherein she had

suggested that the accused had set fire by the match stick.

This was, by far, the only contradiction which was brought

in her Cross-Examination.

12.   Very strangely, a suggestion was put to her that since

the accused threw the petrol from three jerry cans one after

the other, they could run out and catch the accused.            In her

further Cross-Examination, however, she admitted that her

statement was properly recorded by Narender Singh Patel (PW-

9), Sub-Divisional Magistrate, Baramandal, District Almora.

She   also   admitted   that   she    had   stated   in   her   dying
12

declaration that there was one jerry can.                  In our opinion,

the     witness,   in   her   dying      declaration      dated    1.7.1989,

mentioned about one jerry can as she had seen the accused

throwing the petrol from one jerry can.                    Very strangely,

this contradiction was not got proved from Narender Singh

Patel      (PW-9),      Sub-Divisional          Magistrate,       Baramandal,

District     Almora     nor   was   it        put   to   him.      Unless   a

contradiction is proved by putting it to the person who

records the original statement, such contradiction is of no

consequence.       The only Cross-Examination of Narender Singh

Patel (PW-9), Sub-Divisional Magistrate was to the effect

that there was no certification on the dying declarations to

the effect that both the witnesses were in fit condition to

give the statement.       When we see again the evidence of Vimla

Devi (PW-1), even she was not specifically questioned about

her previous statement nor was she given an opportunity to

explain as to why she had made the statement in her evidence

that there were three jerry cans as in her statement in

dying declaration that there was one jerry can.                   Unless the

witness is specifically given an opportunity to explain such

contradiction, it cannot be taken note of.                The very purpose

of putting the contradiction to the witness is to give an

opportunity to him/her to explain a contradictory statement,

if any.     There can be no dispute that when a witness making
13

a dying declaration survives, the said dying declaration

does not remain substantive evidence.             However, as held in

Ramprasad v. State of Maharashtra [1999 (5) SCC 30] when

such dying declaration has been recorded by a Magistrate

then it can be used as a corroboration to the oral evidence

of such witness.        This Court in the aforementioned decision

of Ram Prasad (cited supra) specifically held that where

such statement is recorded by a Police Officer, its user is

barred   under   Section    162    Cr.P.C.      However,       where   it   is

recorded   by    a    Magistrate    under    Section    164,    Cr.P.C.     it

becomes usable to corroborate the witness as proved under

Section 157 of the Evidence Act.            That is precisely the case

here.      We    have     very     critically    examined       the    dying

declaration and we are of the clear opinion that the dying

declaration was voluntary, truthful and uninfluenced by any

other factor.        We have considered the dying declaration vis-

`-vis the substantive evidence given by this witness.                       The

only criticism against this dying declaration was that the

Magistrate had not got it certified by the doctor to the

effect that the witness was in a fit state of mind to make

the dying declaration.        That really appears to be the case.

However, it can not be forgotten that in his evidence, the

Magistrate   Narender      Singh    Patel    (PW-9)    very    specifically

asserted that he had obtained the opinion of the doctor.
14

Very surprisingly, there was no cross-examination at all on

this very vital aspect.             Therefore, the assertion that he

had asked the doctor and was convinced that the injured was

in a fit position to make a dying declaration has gone

unchallenged.        This witness has very specifically stated

that he completed all the formalities and had taken all the

cautions.

13.   When    we    see   the   Exhibits     Ka-30      and   31,   which   are

seizure Panchnamas duly proved by Rewadhar (PW-4), it is

seen that there were three jerry cans found which were cut

from the above, and as such, were open.                  Out of these three

jerry cans, one was white and the others were black.                    It is

specifically stated in the panchnama that all the jerry cans

were smelling of petrol.            In Exhibit Ka-31, the cut parts of

the jerry cans were shown, which were found lying on some

distance     on    the    Western    side    of   the   spot   of   incident.

Therefore, there can be no dispute that actually the accused

had carried the three jerry cans full of petrol and the

witness had seen the accused pouring petrol from one of

them.   It can also be that the accused might have utilized

the two jerry cans in sprinkling the petrol on the roof from

outside and then opening the door, threw the petrol from the

third jerry can remaining with him.                The witness had after
15

all seen the three jerry cans being presented in the Court

and   had,   therefore,    tried   to    improve   upon   the   story.

However, if the three burnt jerry cans were actually found

by Hyat Singh (PW-13) immediately on the spot in a semi-

burnt condition, the so-called contradiction loses all its

rigor.   The witness was very candid when she admitted before

the Court that she had not stated that her husband was cut

by the accused and that she had not, therefore, referred to

the pistol in her statement.        She was also candid in saying

that she had not seen the accused assaulting her husband.

She then asserted that the accused assaulted her husband on

his neck only once.         She also asserted that besides the

accused, she did not see anyone else on the spot.           All this

suggests her truthfulness.         She did not implicate anybody

else than the accused.      Therefore, the fact that the accused

was alone and further that Balwant Singh (deceased), after

opening the door, ran out and was thereafter immediately

found cut, leads to the only inference that it was the

accused alone who assaulted Balwant Singh.            It has to be

kept in mind that at that time, the whole house was burning.

The witness has explained that the other people came and

extinguished the fire; otherwise the whole house would have

burnt.   There was, therefore, enough light for the witness

to see the accused.       We, therefore, do not find anything to
16

disbelieve      this   witness          on    account       of    the     so-called

contradictions.         In       fact,       the   presence       of     this     lady

alongwith    the    other    victims          on   the   spot,         goes   without

challenge.      Had she not been present there, she would not

have suffered 70% burns.            She thus had the best opportunity

to watch everything.              It was suggested that she was an

interested    witness       as    the    accused      had    enmity        with   her

father-in-law Pratap Singh.              It must be remembered that she

herself had lost all her kith and kin including her husband

and, therefore, she would not be interested in screening the

real accused. We cannot view her evidence as the evidence of

an interested person.            In fact, Dr. K.C. Joshi (PW-12), in

his first medical statement (Exhibit Ka-9), has specifically

mentioned that she was conscious when she was examined at

the   Primary      Health    Centre,         Baijnath.           The    certificate

describes    her    condition       “patient       fully     conscious,         needs

urgent (probably treatment), referred to Hospital, Almora

for management”.       Therefore, even at Primary Health Centre,

Baijnath, where she was examined at 9.30 A.M. on the next

day, the patient was fully conscious, thereby it cannot be

said that was not able to see and comprehend.

14.   In fact, the way this lady was sitting in the room

which was 10 cubic long and 5 cubic wide she would have had
17

the best opportunity to see the accused.           The High Court has

also taken stock of her inability to tell the colour of the

container, length etc. of the blade of the sword and the

omission in her statement as regards the pistol which was

found lying in the courtyard after the incident.                However,

the Sessions Judge as well as the High court have chosen to

accept the evidence of the witness who has survived 70 %

burns.        The High Court also endorsed view of the Sessions

Judge that she was wholly reliable witness and there was no

requirement of corroboration to her evidence from any other

witness. We are, therefore, of the opinion that the dying

declaration is reliable and properly recorded and truthful

and corroborates the oral evidence of Vimla Devi (PW-1).

That     is    a   very   strong   circumstance   in   favour   of   the

prosecution.

15.    This takes us to the other material circumstance and

that is the dying declaration of Prem Singh.               This dying

declaration was recorded on 01.07.1989 i.e. on the next day

at 3.45 p.m. in the District Hospital, Almora by Narender

Singh Patel (PW-9).         The said dying declaration is Exhibit

Ka-6.    In fact this was a witness who had recorded the dying

declaration of Vimla Devi (PW-1) also. In his evidence,

Narender Singh Patel (PW-9) asserted that before recording
18

the    dying   declaration        of     Prem      Singh,     he   had    sought   the

opinion of the doctor about the witness being in fit state

of mind to make a dying declaration.                        He also asserted that

the witness was not in any kind of mental pressure nor was

he depressed and was fully conscious and in possession of

the mental faculties.            The witness also asserted that before

recording      the    dying      declaration           he    had   taken     all   the

precautions and the dying declaration was written in the

language of the witness himself.                       There is practically no

Cross Examination of this witness.                     The only thing that was

brought     out     was   that    he    did     not    obtain      the    endorsement

certification by the Doctor that they were in a position to

make    a   statement.           We    have     seen    the    dying      declaration

itself.        It    is   true    that    the      dying      declaration     is   not

endorsed by the doctor but for the same comments for dying

declaration of Vimla Devi (PW-1) we would accept the dying

declaration of Prem Singh which would become substantive

evidence.

16.    In his dying declaration, Prem Singh had specifically

alleged that while he along with other members of his family

like    father,       mother,         sister-in-law,          elder      brother   and

younger sister were having food, at that time accused Sunder

Singh who was his uncle was coming towards his house with a
19

torch and he was carrying a jerry can (named as `gallons’ by

witness)    and    he    poured      the     petrol       and   closed       the    door.

After throwing the torch he closed the door resulting in the

room catching fire.                He then said that his elder brother

Balwant    Singh    pushed         the    door     though     his    body     had       also

caught fire.        He then asserted that Sunder Singh cut him

with some sharp weapon.                  He also explains that they could

not go out because the whole room had caught fire.                                      The

witness further stated in his dying declaration that the

other villagers came.              However, he could not recognize them

as he had suffered burn injuries.                         He was specific that

Sunder Singh alone had come to set the house on fire.                                   This

declaration was recorded on 1.7.1989 at 3.45 p.m. as is

recorded     in    the       dying       declaration       itself.           The    dying

declaration bears the thumb impression on both the pages.

When this dying declaration is considered in the light of

the    evidence     of       Narender        Singh      Patel       (PW-9),        it    is

established       that       the     dying       declaration        was      not        only

voluntary but it was the correct depiction of the facts of

which took place.            There is no reason for us to reject the

dying declaration again solely for the reason that there was

no    endorsement       of    the    doctor        on   the     dying     declaration

regarding    the    fit      condition       of     the    injured      to    make       the

statement.        We have already, while discussing the dying
20

declaration of Vimla Devi (PW-1), held that the Magistrate,

Narender Singh Patel (PW-9) had specifically asserted that

he had got himself satisfied by asking the doctor that the

injured witness were in a fit mental and physical condition

to make a statement.

17.   Hyat Singh did not specifically name Vimla Devi (PW-1)

having made oral dying declaration to him but asserted that

the   injured      victims    had   told       him    about    Sunder      Singh’s

involvement.         We   would     use    this       circumstance      only    as

corroboration to Vimla Devi’s evidence.                       It is true that

Vimla Devi (PW-1) had specifically not stated that she made

a statement to Hyat Singh.                However, we are of the clear

opinion     that    the      evidence      of     Vimla       Devi   (PW-1)     as

corroborated by dying declaration (Exhibit Ka-5) was totally

acceptable and was rightly relied upon by the Trial and the

appellate Court.

18.   There can be no dispute that the dying declaration can

be made a basis of conviction.                       There again can be no

dispute     that    for   basing     the        conviction      on   the     dying

declaration, the dying declaration must pass all the tests

of voluntariness, the fit condition of mind of the maker of

the dying declaration and the witness not being influenced

by    any   other     factors       and     the       truthfulness      of     the
21

declaration.     The   law    is   settled   by   this   Court   in   the

decision of Laxman Vs. State of Maharashtra [2002 (6) SCC

710].    There, of course, the Court has discussed implication

of the doctor’s statement.         The Court has further considered

the subject in Shanmugham @ Kulandaivelu v. State of Tamil

Nadu [(2002) 10 SCC 4] as also in P.V. Radhakrishnan v.

State of Karnataka [(2003) 6 SCC 443].              We hasten to add

that we do not want to understate the importance of the

evidence of doctors.         However, there could be cases where

though there is no certification by the doctor, still the

dying declaration can be accepted and in our opinion present

is such a case.    In Laxman’s case (cited supra), the court

had observed in paragraph 3:

“normally, therefore, the Court in order to
satisfy whether the deceased was in a fit mental
condition to make the dying declaration look up
to the medical opinion.      But where the eye
witnesses state that the deceased was in a fit
and conscious state to make the declaration, the
medical opinion will not prevail, nor can it be
said that since there is no certification of the
doctor as to the fitness of the mind of the
declarant,   the   dying   declaration  is   not
acceptable.”

19.   This decision was by the Constitution Bench of this

Court and has taken stock of all the earlier decisions.               It

has been through out followed by this Court in the later

cases.   After examining all the circumstances, particularly,
22

the evidence of the Magistrate, we are of the clear opinion

that the dying declarations of Vimla Devi and Prem Singh do

pass    the     test    of    credibility.         Of    course,   the    dying

declaration of Vimla Devi cannot be substantive evidence and

it can only be corroborative evidence of oral testimony

since she survived.             However, the evidence of Prem Singh

does become substantive evidence and in our opinion, wholly

reliable.       We, therefore, hold that the Trial Court and the

appellate Court have committed no error in relying on that

dying declaration.

20.    There    is     immediate      disclosure    of    the   name     of   the

accused in the FIR.            This report was in the same night at

3.30 a.m. where it is specifically stated that at 10 O’clock

Sunder Singh had set the house on fire when the family

members of Prem Singh were having food.                  It is also asserted

therein that even Balwant Singh’s neck was cut by him.                        The

FIR is not substantive evidence.               However, it corroborates

the assertion of Kheem Singh that Hyat Singh came on the

spot and had enquired into the matter.                   Therefore, the name

of the accused was reported almost immediately without any

waste of time.

21.    Chanar    Singh       (PW-2)    asserted    that    he   was    told   by

injured Pratap Singh that Sunder Singh had set the house on
23

fire and he had injured.                  This assertion on the part of

Chanar       Singh   has     not       been    challenged       in      the   cross-

examination at all.          In fact Chanar Singh is the brother of

the   accused.        It    is     true    that      in   cross-examination        he

admitted that he had not seen Sunder Singh setting the house

on fire nor did he see him assaulting Balwant Singh with a

sword.   Even this witness was told by Vimla Devi that it was

Sunder Singh who had set the house on fire.                           His evidence,

therefore, corroborates the evidence of Vimla Devi.                           It is

relevant as a previous statement made to other witness and

usable as such.            Similarly, Rewadhar (PW-3) also asserted

that Pratap Singh had told him that when they were having

their food at that time Sunder Singh had poured the petrol

and had put the house on fire.                     Even this assertion in the

examination-in-chief             was    not    challenged        in     the   cross-

examination.         The only challenge in the cross examination

was that he had himself not seen the incident.                         The evidence

of    this     witness      also       thus    went       unchallenged.          Very

unfortunately,       though       the     Panchnamas       on   which    these    two

witnesses have put their signatures were put to the accused.

However, this fact of oral dying declaration by Pratap Singh

to both of them was not put to the accused.                       It is really a

matter of concern that even the trial Judge did not frame

the question in Section 313 Cr.P.C. examination specifically
24

putting the names of these two witnesses.                    Thereby a very

important      circumstance       is    lost.      We     have    not      allowed

ourselves      to     be   influenced      by     these     two     oral     dying

declarations.         However, we are mentioning these facts only

with a view to caution the Trial Courts to be extremely

careful about the questions to be put to the accused persons

in examination under Section 313 Cr.P.C.                    Record must show

that meticulous care is taken to put all the incriminating

circumstances to the accused.              It is found that the Trial

Courts sometimes are extremely casual about this aspect and

fail   to    put    all    the   incriminating      circumstances          to    the

accused.      We would expect the Trial Courts to be extremely

careful in this behalf.            It is only with this idea that we

are mentioning these facts.

22.    However, the fact remains that even ignoring these oral

dying declaration allegedly made by Pratap Singh to the two

witnesses, namely, Chanar Singh (PW- 3) and Rewadhar (PW-4)

the prosecution still is successful in proving its case on

the basis of the oral evidence of Vimla Devi and the dying

declaration by Prem Singh.

23.    The evidence of four doctors was led. It is obvious

from   the    evidence     that   only    two     victims    when    they       were

alive,      namely,    Vimla     Devi    (PW-1)    and     Prem     Singh       were
25

examined by Dr. K.C. Joshi (PW-12).              The other doctors were

namely Dr. N.D. Punetha (PW-6) who conducted the post-mortem

on Balwant Singh’s dead body.               He has specifically proved

the injury No.1 on the neck of Balwant Singh which was bone

deep.     He also described that all the body was burnt.                   He

also confirmed the opinion that the injury No.1 on the neck

could have been possible by a sharp weapon like a sword.                   He

also conducted the post-mortem of Smt. Nandi Devi who had

died almost immediately after she was burnt.               He opined that

she had died of the burn injuries.               Both these post-mortem

reports    have    been     proved    as     Exhibits    Ka-2    and     Ka-3

respectively.      He also conducted the post-mortem of Pratap

Singh on 02.07.1989 and opined that the deceased had died on

account of the shock of the burn injuries.                 He proved the

post-mortem report at Exhibit Ka-5.                Dr.H.G.S. Manral was

examined as PW-10.         He conducted the post-mortem of body of

Prem Singh.       He opined that Prem Singh had suffered 90% of

second and third degree burns.             The whole body was blackened

and the black soots were found in the respiratory track up

to his lungs.       He also opined that Prem Singh had died on

account of the burn injuries and shock.                 Dr. Nanda Ballabh

Sharma was examined as PW-11. He conducted the post-mortem

on   13.10.1989    on   the   body    of    Kamla.      Thus,    Kamla    had

survived    for   almost    three    and    a   half   months.    However,
26

ultimately she succumbed on 12.10.1989.                   According to this

witness,    the    deceased     had     died   after    substantially       long

period after she was burnt on account of the shock, paucity

of blood and on account of extensive weakness on account of

burns.     Thus, it is clear that all the deceased persons had

died on account of the burn injuries.                   Dr. K.C. Joshi who

was examined as PW-12, had medially examined Vimla Devi and

Prem Singh on 1.7.1989.             He had described as many as five

burn   injuries     on   the    body     of    Vimla    Devi.    He   had   also

examined Kamla Devi and noted her burn injuries as also Prem

Singh for his burn injuries.              All the three witnesses were

alive when he examined them.              He proved the injury reports

at Ka-9, Ka-10 and Ka-11, respectively.                   Nothing has been

brought in the cross-examination of these doctors excepting

the suggestion to practically all of them that if there was

an accidental fall of a can containing oil or petrol in the

hearth,    there    could      be   a   possibility      of     the   witnesses

receiving burn injuries.                 We    have    already    pointed    out

that such possibility was merely an imagination and there is

no material whatsoever to see any such possibility.                     This is

all the more true considering that Balwant Singh was given a

blow by a sword resulting in his instantaneous death.                        The

defence thus could not get any advantage from the medical

evidence.
27

24.   This takes us to the quality of investigation.                   We must

say that the investigation in this case was not up to the

mark.       In   the     distant      hilly    areas   in   the    State      of

Uttarakhand,      the    investigation        is   conducted      by   village

Police through a Patwari who is the lowest officer in the

revenue department.        Much more could have been done in this

case.      For example, the investigation officer could have

recorded the dying declaration of Pratap Singh, Nandi Devi,

Kamla, Vimla Devi and Prem Singh.               They were alive when the

investigating officer allegedly reached the spot as per his

own   evidence.         That    was    not    done.    We   also       fail   to

understand as to why K.R. Tamta (PW-14), the investigating

officer did not even bother to get the dying declaration of

Kamla recorded.         Even Hyat Singh (PW-13) could have got the

said dying declaration recorded.                Even that was not done.

We again fail to understand as to why the FSL report was not

obtained and filed.            The trial was started only after the

arrest of the accused after 12 years.                  All this suggests

that the investigation was conducted in a very casual and

careless manner.        Same is the story of prosecution.              We have

already commented on proper questions not being put to the

accused.     It is obvious that the prosecuting agency did not

even bother to look into the questions before they were

asked to the accused in his Section 313 Cr.P.C. examination.
28

Merely because this heinous offence took place in the remote

corner of District Bageshwar which – at the time when the

offence took place was Almora                 District – it did not mean

that   the    investigating       agency       could        do    some       slipshod

investigation       and   thereafter       the    prosecution            could     be

allowed to be equally casual as it appears to have been in

conducting the prosecution.         This also speaks about the duty

of the Trial Court Judge who cannot be a mere spectator to

what goes on in the name of the trial.                  The Trial Judge has

to control the trial by active application of mind.                           A time

has come when the village police system prevalent in the

State of Uttaranchal in respect of distant areas would have

to be changed and the distant villagers would have to be

given the protection and services of the regular police.                           It

is really strange that the four Districts which are in the

plains have had advantage of the police system while in the

remaining Districts, the distant part of those Districts

should be deprived of a police system.                       Such deprivation

undoubtedly        results   in   affecting           the        law    and     order

situation, the detection of crimes and the protection of the

poor villagers.        In fact effective policing is the need of

the whole society, urban as also rural.                     However, all these

factors have not prejudiced the accused.                         Even with these

factors,     the    prosecution    has        fully    proved          the    heinous
29

offence committed by him.             This Court has time and again

held that incompetent investigation should not result in the

accused getting any unfair advantage.                 We reiterate the same

principle.

25.    Considering overall situation the evidence led by the

prosecution through Vimla Devi which has been corroborated

by    her    dying   declaration    as    also    the    dying   declaration

(Exhibit Ka-6) of Prem Singh and the other circumstances

proved on record through the evidence of Panchas and the

Panchnamas.          It must be said that it was the accused and

accused      alone    whose   guilt      has   been     proved   beyond    all

reasonable doubts.        We, therefore, endorse the judgments of

the    Trial    Court   and   the     High     Court    and   confirm     their

findings on conviction.

26.    This takes us to the sentencing part.                  Both the Trial

Court and the High Court have confirmed the death sentence.

It was urged by the learned Amicus Curiae that this could

not be the case which can be described as the rarest of rare

case.       It was urged that long standing enmity has resulted

in the accused committing this offence.                  It was also urged

that merely because the accused set the house on fire, it

cannot be said that it was his intention to commit murder of

all inmates as the accused might not have been able to
30

foresee the horrible results that were likely to follow from

his act of setting the house on fire and, therefore, at the

most it could be described as indiscretion on the part of

the accused.        The learned Amicus Curiae further urged that

this incident had taken place in the year 1989 and to send

the accused to gallows after 21 years of the incident would

be inhuman.         Further it was pointed out that the first

judgment of the Trial Court came in the year 2004 and for

six years thereafter, the accused is under the shadow of

death and, therefore, it would not be proper to confirm his

death sentence.

27.   As   against    this,     the   learned      counsel    appearing    on

behalf of the State pointed out that this act of burning the

house and as a result of roasting of six persons alive

appears to have been committed by the accused with cool mind

and in a cold blooded manner.               The learned counsel was at

pains to point out that there was no immediate provocation

by any of the deceased persons which could drive the accused

to take such a horrible step.             Learned counsel pointed out

that secondly, the accused came with full preparation to

eliminate as many persons as possible as he had come with

the   sword   and    also   a   pistol.      The    counsel    invited    our

attention to the fact that the pistol was found lying in the
31

courtyard which had two bullets. He further pointed out that

as many as three jerry cans were also found in the same

condition and it was obvious that the accused had used the

petrol to bathe the house with petrol.         Otherwise, the room

which was 10 cubic long and 5 cubic wide could not be burnt

so extensively.      The learned counsel further pointed out

that thirdly, after pouring the petrol and setting the house

on fire by a torch, the accused closed the door which fact

was   proved   by   the   evidence    of   Vimla   Devi   which   was

corroborated by her dying declaration and also the dying

declaration of Prem Singh.     According to the learned counsel

when the whole room was aflame, to close the door was a

definite pointer towards the evil intention of the accused

who must have seen the six family members burning.             As if

all this was not sufficient, according to the leaned counsel

forthly, as Balwant Singh was able to open the door and run

out, though he himself was in flames at that time, the

accused almost beheaded him.

28.   Our attention was invited to the injury No.1 proved in

the post-mortem report of Balwant Singh (Ka-2).           The learned

counsel then urged that as a result of his assault Balwant

Singh died on the spot while the remaining five members of

the same family were extensively burnt though Vimla Devi
32

miraculously escaped death though she had suffered 70 %

burns.     The learned counsel further invited our attention to

the fact that all those who died had suffered extensive

burns which suggests the quantity of petrol used by the

accused.     According to the counsel, therefore, the quantity

of petrol used from three jerry cans was itself another

definite pointer to the evil intention of the accused.                      As

regards the lapse of 21 years, the learned Counsel pointed

out that showing scant respect to law the accused absconded

and remained absconding for 12 years.               Unfortunately, it has

not come in the evidence of Hyat Singh or K.R. Tamta as to

how or in what manner the accused was apprehended, nor has

it been put to the accused in his examination that he was

absconding    for   12    years.    However,        the    learned   counsel

further     submitted      that    the        accused     was   undoubtedly

apprehended only when he was found to have been arrested for

offences under Sections 323, 504 and 506 IPC registered in

police    station   Karnprayag.      He       was   in    Pursadhi   jail   of

Chamoli District.        Learned counsel, therefore, urged that it

was because the accused himself remained absconding for good

long almost 12 years, that the time of 21 years has elapsed.

Learned counsel then pointed out that the accused cannot

take advantage of his own wrong of remaining absconding for

12 years.      Lastly, learned Counsel urged that because of
33

this cruel and inhuman act as many as six persons of the

same family were burnt and five of them died resulting in

the    family   of    Pratap    Singh   completely      being     wiped    out

excepting for his daughter-in-law Vimla Devi who has to

spend rest of her life with extensive burn injuries.                       The

learned     government         pleader,       therefore,     urged        that

considering     the    balance-sheet         of   circumstances    for     and

against the accused, the Court should confirm the death

sentence.

29.    On these rival contentions, we would have to take stock

of few rulings of this Court.

30.    The law is now well settled in the decision in Bachan

Singh Vs. State of Punjab [AIR 1980 SC 898], where it was

held that the death penalty can be inflicted only in the

gravest of the grave cases.               It was also held that such

death penalty can be imposed only when the life imprisonment

appears to be inadequate punishment.              Again it was cautioned

that    while   imposing       the   death    sentence,    there    must   be

balance between circumstances regarding the accused and the

mitigating circumstances and that there has to be overall

consideration of the circumstances regarding the accused as

also the offence.       Some aggravating circumstances were also

culled out, they being:-
34

(a)   where    the    murder    has    been   committed     after    previous
planning and involves extreme brutality; or

(b)   where the murder involves exceptional depravity.

The mitigating circumstances which were mentioned in

that judgment were:-

(a)     That the offence was committed under the influence
of extreme mental or emotional disturbance;

(b)     The age of the accused.            If the accused is young
or old, he shall not be sentenced to death;

(c)     The probability that the accused would not commit
criminal acts of violence as would constitute a
continuing threat to society;

(d)     The probability that the accused can be reformed
and rehabilitated.         The State shall by evidence
prove   that     the    accused    does     not    satisfy   the
conditions (c) and (d) above;

(e)     That in the facts and circumstances of the case,
the accused believed that he was morally justified
in committing the offence;

(f)     That    the    accused     acted    under    the    duress    or
domination of another person; and

(g)     That the condition of the accused showed that he
was mentally defective and that the said defect
impaired       his      capacity     to     appreciate       the
criminality of his conduct.
35

The law was further settled in the decision in Machhi

Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], where

this Court insisted upon the mitigating circumstances being

balanced       against       the     aggravating         circumstances.              The

aggravating circumstances were described as under:-

(a)   When the murder is in extremely brutal manner so as to
arouse intense and extreme indignation of the community.

(b)   When the murder of a large number of persons of a
particular caste, community, or locality is committed.

(c)   When the murder of an innocent child, a helpless woman
is committed.

The    matter      was    further         considered       in    Devender     Pal

Singh    Vs.    State     of    NCT       of    Delhi    [AIR     2002      SC    1661],

wherein, after examining both the aforementioned cases, it

was held that when a murder is committed in an extremely

brutal      manner,     or     for    a        motive    which    suggests         total

depravity      and    meanness       or    where      the   murder     is    by    hired

assassin for money or reward, or a cold blooded murder for

gains,   the     death       sentence          is    justified.        Similar      such

observation was made even in the decision in                                Atbir Vs.

Govt. of NCT of Delhi [JT 2010 (8) SC 372].                           Relying on all

these cases, this Court, in Criminal Appeal Nos. 127-130 of

2008 (C. Muniappan & Ors. Vs. State of Tamil Nadu) decided

on 30.8.2010, confirmed the death sentence.                              That was a
36

case where the accused persons, while demonstrating against

the    arrest    of    their       leader,         started     damaging       public

transport vehicles.              Some girl students of a University

were   travelling      in    a     bus.       The     three    accused       persons

attacked the bus and sprinkled petrol in the bus full of

girl and boy students and set it on fire with the students

still inside the bus.               As a result, the inmates started

escaping; however, three of the girls could not escape and

were roasted alive.           The unprovoked attack on the bus and

the burning of the bus by sprinkling petrol on the bus, and

the death of three students as a result of such burning was

viewed by this Court as a barbaric and inhuman act of the

highest     degree.          The    offence         was   viewed      as     brutal,

diabolical,      grotesque       and    cruel,      shocking    the     collective

conscience of society.              It was on that account that the

death sentence was confirmed.                     Several comments have also

been   made     by   this    Court      on   the     inaction     shown      by   the

general public and the police who remained passive and did

not try to help the unfortunate victims.

31.    In   Ravji    Alias    Ram      Chandra      Vs.   State    of      Rajasthan

[1996 (2) SCC 175], relying on the decision in Dhananjoy

Chatterjee Vs. State of West Bengal [1994 (2) SCC 220],

this Court confirmed the death sentence, where the murder
37

by    the    accused      of     his    wife    in        the    advanced         stage    of

pregnancy and of his three minor children was viewed as

rarest      of   the     rare    cases.    The       Court       observed          that    the

accused has not even spared his mother, who very rightly

tried to prevent him, and the accused assaulted her with

the   same       axe   with     which     he    killed          his    wife       and   minor

children.          The    accused       was     described             as   blood-thirsty

demon.       In Dhananjoy Chatterjee Vs. State of West Bengal

(cited supra), the murder was of a helpless girl who was

raped and then murdered.                That was viewed as the rarest of

the rare cases.            In State of U.P. Vs. Dharmendra Singh &

Anr. [1999 (8) SCC 325], it was held that the High Court

was not right in avoiding the death sentence on the ground

that the convict was languishing in death cell for more

than 3 years.             In that case, the accused had committed

murder of 5 persons including an old man of 75 years, a

woman aged 32 years, two boys aged 12 years and a girl aged

15 years when they were asleep only to wreak vengeance on

the part of the accused.                The High Court considered the act

on the part of the accused in denuding the lower part of

the body of the girl.                  This Court observed that the High

Court had misdirected itself in refusing to confirm the

death    sentence        on     account    of       the    so-called          3    years    of

languishing in death cell.                For this proposition, the Court
38

relied on the decision in Triveniben Vs. State of Gujarat

[1988 (4) SCC 574], where it was held that the delay in

executing the sentence was of no consequence.

32.   In   Atbir    Vs.    Govt.     of   NCT    of    Delhi    (cited     supra),

which was a case dependant upon a dying declaration, the

allegation was that the accused had stabbed all the three

persons of a family so that he and his brother could enjoy

the entire property and money.                   The repeated stabbing of

the deceased was viewed as the act for which the accused

could be legitimately awarded death sentence.                      The incident

therein had occurred on 22.1.1996 while the Sessions Judge

had awarded       the    death     sentence     on    27.9.2004.          The    High

Court had confirmed the death sentence on 13.1.2006 while

this Court affirmed this sentence by its judgment dated

9.8.2010.         This    Court,    after       taking    the     stock    of     the

aggravating circumstances and mitigating circumstances, as

pointed out in Bachan Singh Vs. State of Punjab (cited

supra) and Machhi Singh & Ors. Vs. State of Punjab (cited

supra),    came    to    the   conclusion       that     though    Atbir        was   a

young person of 25 years of age and had already spent 10

years in jail, that was not a mitigating circumstance in

his favour.        The three murders were held to be extremely

brutal and diabolical, committed with deliberate design in
39

order      to   inherit      the       entire      property        of    Jaswant         Singh

without waiting for his death.                         In Sushil Murmu Vs. State

of Jharkhand [AIR 2004 SC 394], which was a case of human

sacrifice of a 9 years old child, this Court found the

accused     guilty      on     the      basis     of    circumstantial             evidence.

While culling out the aggravating circumstances, this Court

named five circumstances on the basis of the earlier case

law   in    Machhi    Singh        &      Ors.   Vs.    State      of    Punjab      (cited

supra), Bachan Singh Vs. State of Punjab (cited supra) and

Ediga Anamma Vs. State of A.P. [AIR 1974 SC 799].                                    Two of

the said circumstances are as follows:-

1.    When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as
to arouse intense and extreme indignation of the community.

2.    When      the   crime          is     enormous        in     proportion.            For
instance when multiple murders, say of all or almost all
the members of a family or a large number of persons of a
particular caste, community or locality, are committed.

In this case, the Court recorded that the murder was a

dastardly       murder       by    sacrificing          a     hapless        and   helpless

child      of   another      for       personal        gain      and    to    promote     his

fortunes by pretending to appease the deity or was a brutal

act   which      is   amplified            by    the    grotesque        and       revolting

manner     in   which     it      was      committed.            This    case      was   even
40

relied upon by the High Court while confirming the death

sentence.

33.    In another decision in Gurdev Singh & Anr. Vs. State

of Punjab with Piara Singh & Anr. Vs. State of Punjab [AIR

2003 SC 4187], this Court specifically held in Para 19 that

there could be no fixed or rigid formula or standard for

invoking extreme penalty of death sentence.                  This was a

case   where    this   Court   took   notice      of   the   decision   in

Rajendra Prasad Vs. State of Uttar Pradesh [1979 (3) SCC

646], where this Court had held that the focus had shifted

from crime to criminal and the special reasons necessary

for imposing death penalty must relate not to the crime as

such but to the criminal.           The Court, however, noted that

this was overruled in Bachan Singh Vs. State of Punjab

(cited supra) later on.        The Court also referred to various

cases like (i)     A. Devendran Vs. State of Tamil Nadu [1997

(11) SCC 720], which was a case of triple murder, where the

Court had refused to pass the death sentence, (ii)                Kumudi

Lal Vs. State of U.P. [1999 (4) SCC 108], which was a case

of rape and murder of a young girl aged 14 years and where

this Court had refused to confirm the death sentence on the

ground   that    the   death   of   the    girl   must   not   had   been

intended by the accused, and (iii)           Om Prakash Vs. State of
41

Haryana [1999 (3) SCC 19], which was a case where a BSF

Jawan had murdered as many as 7 persons.                  This was also a

case where the Court refused to confirm the death sentence

on   the   ground    that    the    bitterness    in    the    mind     of   the

accused had       increased    to   a   boiling   point       and    the   agony

suffered by the accused and his family members at the hands

of the other party, and for not getting protection from the

police officers concerned and the total inaction on their

part inspite of repeated written prayers, had goaded or

compelled the accused to take law in his own hands.                          Two

other cases where the death sentence was not confirmed were

also referred to in Gurdev Singh & Anr. Vs. State of Punjab

with Piara Singh & Anr. Vs. State of Punjab (cited supra).

They were Mohd. Chaman Vs. State (NCT of Delhi) [2001 (2)

SCC 28] and Lehna Vs. State of Haryana [2002 (3) SCC 76].

However, this Court then took notice of the facts and noted

that the accused in that case had fired at the marriage

party as he knew that there was going to be a marriage on

the next day in the house of the complainant.                       The accused

had fired at the time when the feast was going on and 13

persons    were     killed    on    the    spot   and    8     persons       were

seriously injured.          Out of all those 13 persons, one was 7

years’ child.       This Court, under the circumstances, refused

to convert the death sentence into the sentence for life.
42

34.   There are three other cases which we must mention.                            In

Haru Ghosh Vs. State of West Bengal [2009 (15) SCC 551],

where one of us was a party (V.S. Sirpurkar, J.), there was

a murder of a helpless lady and a child by a person who was

already suffering death sentence.                        However, that act was

not found to be a pre-meditated act.                        It was found that the

accused had acted on account of the previous enmity and

since he thought that his livelihood was being attacked by

the husband of the deceased, though in an incorrect manner.

It was found that he had not come armed to the scene of

offence.        It     was   also   found          that      though     he   was    not

justified in eking out his livelihood by selling liquor,

but the fact of the matter was that he and his family was

surviving only on that, and the effort on the part of the

husband of the deceased to stop the activity of the accused

was   sufficient       to    nurture    deep           hatred   in     his   mind   on

account of which the accused acted.                         Such is not the case

here.      In Dilip Premnarayan Tiwari & Anr. Vs. State of

Maharashtra etc. [2010 (1) SCC 775], again where one of us

(V.S. Sirpurkar, J.) was a party, this Court refused to

confirm the death sentence, where the accused was guilty of

committing      multiple      murders        (4        in    number).        However,

considering the fact that the sister of the accused was

married    to    the     deceased      out        of    a    love     affair,   which
43

marriage    was    not    approved    at    all   by   the    family     of   the

accused    being     an    inter-caste      marriage    and    further        they

being    neighbours       and   the   accused     having     to    suffer      the

ignominy because of the so-called marriage on day to day

basis, this Court took the view that this was not a case

where the death sentence was to be awarded.                         The Court

considered the psychology of the accused, the taunts that

he had suffered on account of his sister’s marriage with a

person of different community and further the fact that the

situation had gone out of his hand as his sister was on the

family way.        The Court, therefore, viewed that this could

not be the rarest of the rare cases.                    Lastly, in Swamy

Shraddananda @ Murali Manohar Mishra Vs. State of Karnataka

[AIR 2008 SC 3040], though there was one of the most cold-

blooded     murder        for   gains,      the   Court       recorded        that

considering       the     absolute    irrevocability          of   the    death

penalty, sentencing accused to death would not be proper.

We do not find anything in this decision, which will be

helpful to the accused in the present matter.

35.   Considering all these cases, on the backdrop of the

facts, which have taken place and provided in this case, it

must be said that this is one of the rarest of the rare

cases.     Here is a case where the whole family is wiped out.
44

Five persons have lost their life while the sixth person, a

helpless lady, who has now been left to be the only member

of the family, has to live her life with 70% burn injuries.

The   murder    was     committed     in    a    cruel,       grotesque   and

diabolical manner.          When all the members of the family were

having their food, the accused poured petrol in the room

and set it to fire and went to the extent of closing the

door also.     He closed the door as established by Vimla Devi

(PW-1) and Prem Singh in the dying declaration.                      This was

the most fouled act, by which the accused actually intended

to burn all the persons inside the room and precisely that

had happened.       Barring Vimla Devi (PW-1), everybody in that

room was burnt with the exception of Balwant Singh, who

somehow, was able to open the room and come out.                      Even he

was not spared and almost beheaded by the accused.                     It was

clear that the accused had done this with pre-meditated and

cold-blooded mind, as he had taken the trouble of carrying

petrol to his own cousin’s house.                As if all this was not

sufficient,    he     was   also   carrying      a   sword,    and   probably

prepared himself to fire on the complainant party, as a

pistol with two bullets in it was also found on the spot.

The accused shown extreme depravity of mind in causing a

sword blow on the neck of Balwant Singh, who himself was

burnt and was trying to escape.                 A murder by burning, by
45

itself, would be a very cruel act.                    The agony caused to the

dying witnesses because of their burn injuries would be

enormous.        Again,    when     it    is     seen    that    there     was   no

immediate provocation to the accused and all this only was

on account of the enmity going on in respect of the family

lands, the enormousness of the crime is increased by many

folds.        The accused showed scant respect for the law by

remaining absconding for about 12 years and only because of

that he could not be brought to books.                          It is only his

accidental arrest and being lodged in other jail that the

prosecuting agency was able to prosecute him.                        Out of the

five persons who lost their life, Kamla was barely 16 years

old while Prem Singh was 19 years old only.                      Their life was

nipped in bud.         Both the ladies who lost their life, as

also    the    other   three      persons       who   lost   their    life   were

without any arms and were helpless.                      They could not have

even saved themselves and did succumb to the burn injuries.

The    balance    sheet    of   the      aggravating      circumstances      thus

exceeds the mitigating circumstances.                   In fact, there is no

mitigating circumstance in this case.                     The age is not on

the side of the accused.            We cannot appreciate the argument

that it was only a rash act on the part of the accused

without an intention to commit the murder.                       That does not

appear    to    be   the   case    at    all.         Pouring   of   the   petrol
46

extensively would rule out the intention on the part of the

accused only to burn the house.             Again, his act of closing

the   door   after    setting    the   house      to        fire,            would     speak

completely against him.          Insofar as the other circumstance

of the accused remaining under the shadow of death sentence

right from 2004 is concerned, we do not think that that

circumstance,    by    itself,    is   sufficient               to        mitigate      his

horrible crime as the time factor is identical with the

case of Atbir Vs. Govt. of NCT of Delhi (cited supra).

36.   Considering the overall circumstances, we are of the

opinion that the death sentence was rightly awarded by the

Trial Court and was rightly confirmed by the High Court.

We find no reasons to interfere in this appeal.                                  The appeal

is dismissed.

……………………………..J.
(V.S. Sirpurkar)

………………………………..J.
(A.K. Patnaik)

New Delhi;
September 16, 2010
47

Congress leader Sajjankumar’s Appeal is dismissed by Supreme Court

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                    OF 2010
(Arising out of S.L.P. (Crl.) No. 6374 of 2010)

Sajjan Kumar                                   …. Appellant (s)

Versus

Central Bureau of Investigation               …. Respondent(s)

JUDGMENT

P. Sathasivam, J.

1)   Application for intervention is allowed.

2)   Leave granted.

3) This appeal is directed against the order of the High

Court of Delhi at New Delhi dated 19.07.2010 whereby the

learned    single   Judge     confirmed     the   order     dated

15.05.2010 passed by the District Judge-VII/NE-cum-

Additional Sessions Judge, Karkardooma Courts, Delhi in

S.C. No. 26/10, RC SII 2005 S0024. By the said order,

1
the Additional Sessions Judge has ordered the framing of

charges against the appellant for offences punishable

under Section 120B read with Sections 153A, 295, 302,

395, 427, 436, 339 and 505 of the Indian Penal Code

(hereinafter referred to as “IPC”) and for the offence under

Section 109 read with Sections 147, 148, 149, 153A, 295,

302, 395, 427, 435, 339 and 505 IPC, besides framing of a

separate charge for offence punishable under Section

153A IPC and rejected the application for discharge filed

by the appellant.

4)    Brief Facts:-

(a)   The present case arises out of 1984 anti-Sikh Riot

cases in which thousands of Sikhs were killed.        Delhi

Police has made this case a part of FIR No. 416 of 1984

registered at Police Station Delhi Cantt. In this FIR, 24

complaints were investigated pertaining to more than 60

deaths in the area. As many as 5 charge-sheets were filed

by Delhi Police relating to 5 deaths which resulted in

acquittals.    One    supplementary   charge-sheet    about

2
robbery, rioting etc. was also filed which also ended in

acquittal.   The investigation pertaining to the death of

family members of Smt. Jagdish Kaur PW-1, was reopened

by the anti-Riot Cell of Delhi Police in the year 2002 and

after investigation, a Closure Report was filed in the Court

on 15/22.12.2005.

(b) After filing of the Closure Report in the present case,

on 31.07.2008, a Status Report was filed by the Delhi

Police before the Metropolitan Magistrate, Patiala House

Court, New Delhi.     Pursuant to the recommendation of

Justice Nanavati Commission, the Government of India

entrusted the investigation to the Central Bureau of

Investigation   (hereinafter    referred      to   as   “CBI”)   on

24.10.2005.     On receipt of the said communication, the

respondent-CBI registered a formal FIR on 22.11.2005.

The   Closure    Report   was    filed   by    Delhi    Police   on

15.12.2005/22.12.2005, when a case had already been

registered by the CBI on 22.11.2005 and the documents

had already been transferred to the respondent-CBI.

3
(c)    After fresh investigation, CBI filed charge-sheet

bearing No. 1/2010 in the present case on 13.01.2010.

After committal, charges were framed on 15.05.2010. At

the same time, the appellant has also filed a petition for

discharge raising various grounds in support of his claim.

Since he was not successful before the Special Court, he

filed a revision before the High Court and by the impugned

order dated 19.07.2010, after finding no merit in the case

of the appellant, the High Court dismissed his criminal

revision and directed the Trial Court for early completion

of the trial since the same is pending from 1984.

5)    Heard Mr. U.U. Lalit, learned senior counsel for the

appellant, Mr. H.P. Rawal, learned Additional Solicitor

General for the respondent-CBI and Mr. Dushyant Dave,

learned senior counsel for the intervenor.

6)    Submissions:

(a)   After taking us through the charge-sheet dated

13.01.2010, statements of PW-1, PW-2 and PW-10, order

dated 15.05.2010 framing charges by the District Judge,

4
Karkardooma Courts, Delhi and the impugned order of the

High Court dated 19.07.2010, Mr. Lalit, learned senior

counsel for the appellant submitted that i) the statement

of Jagdish Kaur is highly doubtful and later she made an

improvement, hence the same cannot be relied upon to

frame charge against the appellant; ii) reliance on the

evidence of Jagsher Singh PW-2, who gave a statement

after a gap of 25 years cannot be accepted; iii) the

statement of Nirprit Kaur PW-10 is also not acceptable

since the same was also made after a gap of 25 years of

the occurrence; iv) other witnesses who were examined in

support of the prosecution specifically admitted that they

did not see the appellant at the time of alleged commission

of offence; v) inasmuch as the charge has been framed

after 25 years of occurrence, proceeding against the

appellant, at this juncture, is violative of his constitutional

right under Article 21; vi) after filing of the closure report

by the Delhi Police, by following the procedure, the

present   action   of   the   CBI   conducting    further   re-

5
investigation and filing charge-sheet based on fresh and

improved materials is impermissible in law; vii) follow-up

action based on the recommendation of Justice Nanavati

Commission is also impermissible at this juncture; viii)

many remarks/observations made by the High Court are

uncalled for and based on conjectures and surmises and

also without there being any material on record. If those

observations are not deleted from the order of the High

Court, it would amount to directing the trial Judge to

convict the appellant without proper proof and evidence.

(b)   On   the   other   hand,     Mr.   H.P.   Rawal,    learned

Additional   Solicitor   General    appearing     for    the   CBI

submitted that in view of categorical statement by the

victims before Justice Nanavati Commission and its

recommendation which was deliberated in the Parliament,

the Government of India took a decision to entrust

further/re-investigation in respect of 1984 anti-Sikh riots

through CBI. According to him, the present action by the

CBI and framing of charges against the appellant and

6
others is in consonance with Sections 227 and 228 of the

Code of Criminal Procedure (hereinafter referred to as

“Cr.P.C.”). He also submitted that at the stage of framing

of the charges, the material on record has not to be

examined meticulously; a prima facie finding of sufficient

material showing grave suspicion is enough to frame a

charge. He pointed out that there is nothing illegal with

the order framing charge which was rightly affirmed by the

High Court. He further submitted that the High Court has

not exceeded in making observations and, in any event, it

would not affect the merits of the case.

(c)   Mr. Dushyant Dave, learned senior counsel for the

intervenor, while reiterating the stand taken by the

learned Additional Solicitor General supported the order of

the District Judge framing charges as well as the order of

the High Court dismissing the criminal revision filed by

the appellant. He pointed out that it is not a case for

interference under Article 136 of the Constitution of India.

No prejudice would be caused to the appellant and he has

7
to face the trial.    He further contended that the delay

cannot be a ground for interference.

Relevant Provisions:

7)   Before considering the claim of the parties, it is

useful to refer Sections 227 and 228 of the Cr.P.C. which

are reproduced below:

“227. Discharge.- If, upon consideration of the record of
the case and the documents submitted therewith, and
after hearing the submissions of the accused and the
prosecution in this behalf, the Judge considers that
there is not sufficient ground for proceeding against the
accused, he shall discharge the accused and record his
reasons for so doing.

228. Framing of charge- (1) If, after such consideration
and hearing as aforesaid, the Judge is of opinion that
there is ground for presuming that the accused has
committed an offence which-

(a) is not exclusively triable by the Court of Session, he
may, frame a charge against the accused and, by order,
transfer the case for trial to the Chief Judicial
Magistrate or any other Judicial Magistrate of the first
class and direct the accused to appear before the Chief
Judicial Magistrate, or, as the case may be, the Judicial
Magistrate of the first class, on such date as he deems
fit, and thereupon such Magistrate shall try the offence
in accordance with the procedure for the trial of
warrant-cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in
writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b)
of sub-section (1), the charge shall be read and

8
explained to the accused and the accused shall be
asked whether he pleads guilty of the offence charged or
claims to be tried.”

It is clear that the Judge concerned has to consider all the

records of the case, the documents placed, hear the

submission of the accused and the prosecution and if

there is “not sufficient ground” (Emphasis supplied) for

proceeding against the accused, he shall discharge the

accused by recording reasons. If after such consideration

and hearing, as mentioned in Section 227, if the Judge is

of the opinion that “there is ground for presuming”

(Emphasis supplied) that the accused has committed an

offence, he is free to direct the accused to appear and try

the offence in accordance with the procedure after framing

charge in writing against the accused.

Statements of PW-1, PW-2, PW-8 and PW-10

8)   Mr. Lalit, learned senior counsel for the appellant

pointed   out   that   the   prosecution,     for   framing     the

impugned charges, heavily relied on the statements of

9
Jagdish Kaur, Jagsher Singh and Nirprit Kaur. He also

took us through their statements made at various stages

which are available in the paper-book.       It is true that

Jagdish Kaur PW-1, in her statement under Section 161

Cr.P.C. dated 20.01.1985, did not mention the name of

the appellant.   Even in the affidavit dated 07.09.1985,

filed before Justice Ranganath Misra Commission she has

not whispered a word about the role of the appellant.

According to him, for the first time i.e. in the year 2000,

after a gap of 15 years an affidavit was filed before Justice

Nanavati Commission, wherein she referred the name of

the appellant and his role along with certain local

Congress workers.     According to Mr. Lalit, except the

above statement in the form of an affidavit before Justice

Nanavati Commission, she had not attributed anything

against the appellant in the categorical statements made

on 20.01.1985 as well as on 07.09.1985 before Justice

Ranganath Misra Commission.

10
9)   He also pointed out that even after submission of

Justice Nanavati Commission’s report and entrusting the

investigation to CBI, she made a statement before the CBI

officers at the initial stage by mentioning “that the mob

was being led by Congress leaders”. Only in later part of

her statement, she mentioned that “she learnt that Sajjan

Kumar,   the   Member    of   Parliament   was   conducting

meeting in the area”. She confirmed the statement in the

form of an affidavit dated 07.09.1985 filed before Justice

Ranganath Misra Commission as well as her deposition

with regard to the appellant before Justice Nanavati

Commission on 08.01.2002. No doubt, in the last part of

her statement, it was stated that in the year 1984-85, the

atmosphere was totally against the Sikh community and

under pressure she did not mention the name of Sajjan

Kumar. She also informed that she could not mention his

name for the safety of her children.

10) The other witness Jagsher Singh, first cousin of

Jagdish Kaur, in his statement recorded by the CBI on

11
07.11.2007 i.e. after a gap of 23 years, mentioned the

name of the appellant and his threat to Sikhs as well as to

Hindus who had given shelter to Sikhs. According to Mr.

Lalit, this witness mentioned the name of the appellant for

the first time before the CBI nearly after 23 years of the

incident which, according to him, cannot be relied upon.

11) The other witness relied on by the prosecution in

support of framing of charges is Nirprit Kaur PW-10. It is

pointed out that she also made certain statements to the

CBI after a gap of 23 years and she did not mention the

name of the appellant except stating that one Balwan

Khokhar who is alleged to be a nephew of Sajjan Kumar,

came to her house for discussing employment for her

nephew as driver.

12) The other statement relied on by the prosecution in

support of framing of charges against the appellant is that

of Om Prakash PW-8.        He narrated that during the

relevant time he had given shelter to a number of women

and children of Sikh community including Jagdish Kaur

12
PW-1. Mr. Lalit pointed out that in his statement, he did

not even utter a word about the appellant but at the end

of his statement on being asked, stated that he knew Shri

Sajjan Kumar, Member of Parliament.          However, he

further stated that he did not see him in that mob or even

in their area during the said period. In the last sentence,

he expressed that he had heard from the people in general

that Sajjan Kumar was also involved in the 1984 riots.

13) By pointing out the earlier statement of Jagdish Kaur

PW-1, recorded by the CBI, her affidavit before Justice

Nanavati Commission and the statement of Jagsher Singh

PW-2, Nirpreet Kaur PW-10 and Om Prakash PW-8 before

the CBI, Mr. Lalit submitted that there was no assertion

by anyone about the specific role of the appellant except

the bald statement and that too after 23 years. In such

circumstances, according to him, the materials relied on

by the prosecution are not sufficient to frame charges.

According to him, mere suspicion is not sufficient for

which he relied on the judgments of this Court in Union

13
of India vs. Prafulla Kumar Samal and Another,

(1979) 3 SCC 4 and Dilawar Balu Kurane vs. State of

Maharashtra, (2002) 2 SCC 135.

14) In Prafulla Kumar Samal (supra), the scope of

Section 227 of the Cr.P.C. was considered. After adverting

to various decisions, this Court has enumerated the

following principles:

“(1) That the Judge while considering the question of
framing the charges under Section 227 of the Code has
the undoubted power to sift and weigh the evidence for
the limited purpose of finding out whether or not a
prima facie case against the accused has been made
out.
(2) Where the materials placed before the Court disclose
grave suspicion against the accused which has not been
properly explained the Court will be fully justified in
framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By
and large however if two views are equally possible and
the Judge is satisfied that the evidence produced before
him while giving rise to some suspicion but not grave
suspicion against the accused, he will be fully within his
right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227
of the Code the Judge which under the present Code is
a senior and experienced court cannot act merely as a
Post Office or a mouthpiece of the prosecution, but has
to consider the broad probabilities of the case, the total
effect of the evidence and the documents produced
before the Court, any basic infirmities appearing in the
case and so on. This however does not mean that the
Judge should make a roving enquiry into the pros and

14
cons of the matter and weigh the evidence as if he was
conducting a trial.”

15) In Dilawar Balu Kurane (supra), the principles

enunciated in Prafulla Kumar Samal (supra) have been

reiterated and it was held:

“12. Now the next question is whether a prima facie
case has been made out against the appellant. In
exercising powers under Section 227 of the Code of
Criminal Procedure, the settled position of law is that
the Judge while considering the question of framing the
charges under the said section has the undoubted
power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case
against the accused has been made out; where the
materials placed before the court disclose grave
suspicion against the accused which has not been
properly explained the court will be fully justified in
framing a charge and proceeding with the trial; by and
large if two views are equally possible and the Judge is
satisfied that the evidence produced before him while
giving rise to some suspicion but not grave suspicion
against the accused, he will be fully justified to
discharge the accused, and in exercising jurisdiction
under Section 227 of the Code of Criminal Procedure,
the Judge cannot act merely as a post office or a
mouthpiece of the prosecution, but has to consider the
broad probabilities of the case, the total effect of the
evidence and the documents produced before the court
but should not make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was
conducting a trial (see Union of India v. Prafulla Kumar
Samal).

14. We have perused the records and we agree with the
above views expressed by the High Court. We find that
in the alleged trap no police agency was involved; the
FIR was lodged after seven days; no incriminating
articles were found in the possession of the accused and
statements of witnesses were recorded by the police
after ten months of the occurrence. We are, therefore, of
the opinion that not to speak of grave suspicion against

15
the accused, in fact the prosecution has not been able
to throw any suspicion. We, therefore, hold that no
prima facie case was made against the appellant.”

16) It is clear that at the initial stage, if there is a strong

suspicion which leads the Court to think that there is

ground for presuming that the accused has committed an

offence, then it is not open to the court to say that there is

no sufficient ground for proceeding against the accused.

The presumption of the guilt of the accused which is to be

drawn at the initial stage is only for the purpose of

deciding prima facie whether the Court should proceed

with the trial or not. If the evidence which the prosecution

proposes to adduce prove the guilt of the accused even if

fully accepted before it is challenged in cross-examination

or rebutted by the defence evidence, if any, cannot show

that the accused committed the offence, then there will be

no sufficient ground for proceeding with the trial.           A

Magistrate enquiring into a case under Section 209 of the

Cr.P.C. is not to act as a mere Post Office and has to come

to a conclusion whether the case before him is fit for

16
commitment of the accused to the Court of Session. He is

entitled to sift and weigh the materials on record, but only

for   seeing   whether   there   is   sufficient   evidence   for

commitment, and not whether there is sufficient evidence

for conviction. If there is no prima facie evidence or the

evidence is totally unworthy of credit, it is the duty of the

Magistrate to discharge the accused, on the other hand, if

there is some evidence on which the conviction may

reasonably be based, he must commit the case. It is also

clear that in exercising jurisdiction under Section 227 of

Cr.P.C., the Magistrate should not make a roving enquiry

into the pros and cons of the matter and weigh the

evidence as if he was conducting a trial.

17) Exercise of jurisdiction under Sections 227 & 228 of

Cr.P.C.

On consideration of the authorities about the scope of Section

227 and 228 of the Code, the following principles emerge:-

(i) The Judge while considering the question of framing the

charges under Section 227 of the Cr.P.C. has the undoubted

17
power to sift and weigh the evidence for the limited purpose of

finding out whether or not a prima facie case against the

accused has been made out. The test to determine prima facie

case would depend upon the facts of each case.

ii) Where the materials placed before the Court disclose grave

suspicion against the accused which has not been properly

explained, the Court will be fully justified in framing a charge

and proceeding with the trial.

iii)   The Court cannot act merely as a Post Office or a

mouthpiece of the prosecution but has to consider the broad

probabilities of the case, the total effect of the evidence and the

documents produced before the Court, any basic infirmities

etc. However, at this stage, there cannot be a roving enquiry

into the pros and cons of the matter and weigh the evidence as

if he was conducting a trial.

iv)    If on the basis of the material on record, the Court could

form an opinion that the accused might have committed

offence, it can frame the charge, though for conviction the

conclusion is required to be proved beyond reasonable doubt

that the accused has committed the offence.

18
v)      At the time of framing of the charges, the probative value

of the material on record cannot be gone into but before

framing a charge the Court must apply its judicial mind on the

material placed on record and must be satisfied that the

commission of offence by the accused was possible.

vi)     At the stage of Sections 227 and 228, the Court is

required to evaluate the material and documents on record

with a view to find out if the facts emerging therefrom taken at

their face value discloses the existence of all the ingredients

constituting the alleged offence. For this limited purpose, sift

the evidence as it cannot be expected even at that initial stage

to accept all that the prosecution states as gospel truth even if

it is opposed to common sense or the broad probabilities of the

case.

vii)    If two views are possible and one of them gives rise to

suspicion only, as distinguished from grave suspicion, the trial

Judge will be empowered to discharge the accused and at this

stage, he is not to see whether the trial will end in conviction or

acquittal.

19
18) With    the   above        principles,   if   we   discuss   the

statements of PW-1, PW-2, PW-10 as well as of PW-8, it

cannot be presumed that there is no case at all to proceed.

However, we are conscious of the fact that the very same

witnesses did not whisper a word about the involvement of

the appellant at the earliest point of time. It is the

grievance of the appellant that the High Court did not take

into account that the complainant Jagdish Kaur PW-1 had

not named him in her first statement filed by way of an

affidavit dated 07.09.1985 before Justice Ranganath Misra

Commission nor did she named him in her subsequent

statements made before the Delhi Police (Riots Cell) and in

her deposition dated 08.01.2002 before Justice Nanavati

Commission except certain hearsay statement.               It is the

stand of Jagdish Kaur PW-1, the prime prosecution

witness, that apart from her statement dated 03.11.1984,

she has not made any statement to Delhi Police at any

stage. However, it is also the claim of the C.B.I. that the

alleged   statements      of     Jagdish     Kaur      PW-1,   dated

20
20.01.1985 and 31.12.1992 are doubtful.             Likewise,

Nirprit Kaur PW-10, in her statement under Section 161

Cr.P.C., has denied having made any statement before the

Delhi Police.   At the stage of framing of charge under

Section 228 of the Cr.P.C. or while considering the

discharge petition filed under Section 227, it is not for the

Magistrate or a Judge concerned to analyse all the

materials   including   pros   and    cons,   reliability   or

acceptability etc. It is at the trial, the Judge concerned

has to appreciate their evidentiary value, credibility or

otherwise of the statement, veracity of various documents

and free to take a decision one way or the other.

Investigation by the C.B.I.

19) Learned Additional Solicitor General has brought to

our notice the letter dated 24.10.2005 from Mr. K.P.

Singh, Special Secretary (H) to Mr. U.S. Mishra, Director,

Central Bureau of Investigation, North Block, New Delhi.

A perusal of the said letter shows that in reply to the

discussion held in the Lok Sabha on 10.08.2005 and the

21
Rajya Sabha on 11.08.2005 on the report of Justice

Nanavati Commission of Inquiry into 1984 anti-Sikh riots,

the Prime Minister and the Home Minister had given an

assurance that wherever the Commission has named any

specific individuals as needing further examination or re-

opening of case the Government will take all possible

steps to do so within the ambit of law. The letter further

shows that based on the assurance on the floor of the

Parliament, the Government examined the report of

Justice     Nanavati   Commission,    its   recommendations

regarding     investigation/re-investigation   of   the   cases

against (a) Shri Dharam Das Shastri, (b) Shri Jagdish

Tytler, and (c) Shri Sajjan Kumar.          The letter further

shows that the Government had decided that the work of

conducting further investigation/re-investigation against

the abovementioned persons as per the recommendations

of Justice Nanavati Commission should be entrusted to

the CBI. Pursuant to the said decision, Home Department

forwarded the relevant records connected with the cases

22
against the abovementioned persons. It also shows those

additional records/information required in connection

with investigation are to be obtained from the Delhi Police.

The materials placed by the CBI show that Justice

Nanavati Commission submitted its report on 09.02.2005,

its recommendations were discussed by the Lok Sabha on

10.08.2005      and    the    Rajya    Sabha            on   11.08.2005,

Government      of    India   asked        CBI     to    inquire   those

recommendations on 24.10.2005 and the F.I.R. No. 416 of

1984 dated 04.11.1984 of Police Station, Delhi Cantt was

re-registered   by     the    CBI     as    case        RC-24(S)/2005-

SCU.I/CBI/SCR.I/New Delhi. Pursuant to the same, on

22.11.2005, investigation was taken up and it revealed

that the accused persons committed offences punishable

under Section 109 read with Sections 147, 148, 149,

153A, 295, 302, 396, 427, 436, 449, 505 and 201 IPC and

accordingly filed the charge-sheet.              It is relevant to note

that no one including the appellant has not challenged

appointment of CBI to inquire into the recommendations

23
made by Justice Nanavati Commission.

Status Report by Delhi Police

20) Mr. Lalit heavily relied on the status report of the

Delhi Police and consequential order of the Magistrate. By

pointing out the same, he contended that the CBI is not

justified in re-opening the case merely on the basis of

observations made by Justice Nanavati Commission. The

following conclusion in the status report dated 31.07.2008

filed by the Delhi Police was pressed into service.

“From the investigation and verification made so far
it was revealed that:-
(a)      There is no eye-witness to support the
version of the complaint of Smt. Jagdish Kaur.
(b)   The complaints and affidavits made by Smt.
Jagdish Kaur are having huge contradictions.
(i) In her first statement recorded by local
police during the investigation, she did not
name any person specifically and also
stated that she could not identify any one
among the mob.
(ii) She even did not name Shri Sajjan Kumar

in her statement recorded by the I.O. of the
Spl. Riot Cell after a gap of seven years.

24
(iii) She   suspected the involvement of one
Congress Leader Balwan Khokhar in these
riots but she had not seen him personally.
She was told by one Om Prakash who was
colleague of her husband, about the killing
of her husband and son.
(iv) In the statement recorded on 22.01.1993
under Section 161 Cr.P.C. during the
course of further investigation, the witness
Om Prakash stated that he had seen
nothing about the riots.     Jagdish Kaur
stayed at his house from 01.11.1984 to
03.11.1984 but she did not mention the
name of any person who was indulged in
the killing of her husband and son.”

It is seen from the report that taking note of lot of

contradictions in the statement of Jagdish Kaur PW-1

before the Commissions and before different investigating

officers and after getting legal opinion from the Public

Prosecutor, closure report was prepared and filed before

the Metropolitan Magistrate, Patiala House Courts, New

Delhi on 31.07.2008.       It is further seen that before

25
accepting the closure report, the Magistrate issued

summons to the complainant i.e, Smt. Jagdish Kaur

number of times and the same were duly served upon her

by the officers of the Special Riot Cell but she did not

appear before the Court.       In view of the same, the

Magistrate, on going through the report and after hearing

the submissions and after noting that the matter under

consideration is being further investigated by the CBI and

the investigation is still pending and after finding that no

definite opinion can be given in respect of the closure

report, without passing any order closed the matter giving

liberty to the prosecution to move appropriate motion as

and when required.

21) Mr. Lalit, learned senior counsel, by placing copy of

the final report under Section 173 Cr.P.C. by Delhi Police

as well as endorsement therein including the date on

which the said report was filed before the Court,

submitted that the action taken by Delhi Police cannot be

faulted with.   In other words, according to him, till the

26
entrustment of further investigation by the CBI, Delhi

Police was free to proceed further and there is no error in

the action taken by the Delhi Police. In view of the order

dated 31.07.2008 of the Magistrate, declining to give

definite opinion on the closure report since the same was

under further investigation by CBI, we are of the view that

no further probe/enquiry on this aspect is required.

Delay

22) Learned senior counsel appearing for the appellant

further submitted that because of the long delay, the

continuation of the prosecution and framing of charges

merely on the basis of certain statements made after a gap

of 23 years cannot be accepted and according to him, it

would go against the protection provided under Article 21

of the Constitution. Mr. Lalit heavily relied on para 20 of

the decision of this Court in Vakil Prasad Singh vs.

State of Bihar, (2009) 3 SCC 355 which reads as under:

“20. For the sake of brevity, we do not propose to
reproduce all the said propositions and it would suffice

27
to note the gist thereof. These are: (A.R. Antulay case,
SCC pp. 270-73, para 86)
(i) fair, just and reasonable procedure implicit in Article
21 of the Constitution creates a right in the accused to
be tried speedily;
(ii) right to speedy trial flowing from Article 21
encompasses all the stages, namely, the stage of
investigation, inquiry, trial, appeal, revision and retrial;
(iii) in every case, where the speedy trial is alleged to
have been infringed, the first question to be put and
answered is — who is responsible for the delay?;
(iv) while determining whether undue delay has
occurred (resulting in violation of right to speedy trial)
one must have regard to all the attendant
circumstances, including nature of offence, number of
accused and witnesses, the workload of the court
concerned, prevailing local conditions and so on–what
is called, the systemic delays;
(v) each and every delay does not necessarily prejudice
the accused. Some delays may indeed work to his
advantage. However, inordinately long delay may be
taken as presumptive proof of prejudice. In this context,
the fact of incarceration of the accused will also be a
relevant fact. The prosecution should not be allowed to
become a persecution. But when does the prosecution
become persecution, again depends upon the facts of a
given case;
(vi) ultimately, the court has to balance and weigh
several relevant factors–`balancing test’ or `balancing
process’–and determine in each case whether the right
to speedy trial has been denied;
(vii) ordinarily speaking, where the court comes to a
conclusion that right to speedy trial of an accused has
been infringed the charges or the conviction, as the case
may be, shall be quashed. But this is not the only
course open and having regard to the nature of offence
and other circumstances when the court feels that
quashing of proceedings cannot be in the interest of
justice, it is open to the court to make appropriate
orders, including fixing the period for completion of
trial;
(viii) it is neither advisable nor feasible to prescribe any
outer time-limit for conclusion of all criminal
proceedings. In every case of complaint of denial of right
to speedy trial, it is primarily for the prosecution to

28
justify and explain the delay. At the same time, it is the
duty of the court to weigh all the circumstances of a
given case before pronouncing upon the complaint;
(ix) an objection based on denial of right to speedy trial
and for relief on that account, should first be addressed
to the High Court. Even if the High Court entertains
such a plea, ordinarily it should not stay the
proceedings, except in a case of grave and exceptional
nature. Such proceedings in the High Court must,
however, be disposed of on a priority basis.”

After adverting to various decisions including Abdul

Rehman Antulay and Ors. vs. R.S. Nayak & Anr., this

Court further held:

“24. It is, therefore, well settled that the right to speedy
trial in all criminal persecutions (sic prosecutions) is an
inalienable right under Article 21 of the Constitution.
This right is applicable not only to the actual
proceedings in court but also includes within its sweep
the preceding police investigations as well. The right to
speedy trial extends equally to all criminal prosecutions
and is not confined to any particular category of cases.
In every case, where the right to speedy trial is alleged
to have been infringed, the court has to perform the
balancing act upon taking into consideration all the
attendant circumstances, enumerated above, and
determine in each case whether the right to speedy trial
has been denied in a given case.
25. Where the court comes to the conclusion that the
right to speedy trial of an accused has been infringed,
the charges or the conviction, as the case may be, may
be quashed unless the court feels that having regard to
the nature of offence and other relevant circumstances,
quashing of proceedings may not be in the interest of
justice. In such a situation, it is open to the court to
make an appropriate order as it may deem just and
equitable including fixation of time-frame for conclusion
of trial.”

29
Considering the factual position therein, namely, alleged

demand of a sum of Rs.1,000/- as illegal gratification for

release of payment for the civil work executed by a

contractor, a charge was laid against Assistant Engineer

in the Bihar State Electricity Board and taking note of

considerable length of delay and insufficient materials,

based on the above principles, ultimately the Court after

finding that further continuance of criminal proceedings

pending against the appellant therein is unwarranted and

quashed the same. Though the principles enunciated in

the said decision have to be adhered to, considering the

factual position being an extraordinary one, the ultimate

decision quashing the criminal proceedings cannot be

applied straightaway.

23) In P. Vijayan vs. State of Kerala and Another,

(2010) 2 SCC 398, this Court while considering scope of

Section 227 of Crl.P.C. upheld the order dismissing the

petition filed for discharge and permitted the prosecution

to proceed further even after 28 years. In that case, from

30
1970 till 1998, there was no allegation that the encounter

was a fake and only in the year 1998 reports appeared in

various newspapers in Kerala that the killing of Varghese

in the year 1970 was in a fake encounter and that senior

police officers were involved in the said fake encounter.

Pursuant to the said news reports, several writ petitions

were filed by various individuals and organisations before

the High Court of Kerala with a prayer that the

investigation may be transferred to the Central Bureau of

Investigation (CBI). In the said writ petition, Constable

Ramachandran     Nair   filed   a   counter   affidavit   dated

11.01.1999 in which he made a confession that he had

shot Naxalite Varghese on the instruction of the then

Deputy Superintendent of Police (DSP), Lakshmana. He

also stated that the appellant was present when the

incident occurred. By order dated 27.01.1999, learned

Single Judge of the High Court of Kerala passed an order

directing CBI to register an FIR on the facts disclosed in

the counter affidavit filed by Constable Ramachandran

31
Nair. Accordingly, CBI registered an FIR on 3-3-1999 in

which Constable Ramachandran Nair was named as

Accused 1, Mr Lakshmana was named as Accused 2 and

Mr. P. Vijayan, the appellant, was named as Accused 3 for

an offence under Section 302 IPC read with Section 34

IPC. After investigation, CBI filed a charge-sheet before the

Special Judge (CBI), Ernakulam on 11.12.2002 wherein

all the abovementioned persons were named as A-1 to A-3

respectively for an offence under Sections 302 and 34 IPC.

The appellant – P. Vijayan filed a petition under Section

227 of the Code on 17.05.2007 for discharge on various

grounds including on the ground of delay. The trial Judge,

by order dated 08.06.2007, dismissed the said petition

and passed an order for framing charge for offences under

Sections 302 and 34 IPC.       Aggrieved by the aforesaid

order, the appellant – Vijayan filed Criminal Revision

Petition No. 2455 of 2007 before the High Court of Kerala.

By an order dated 04.07.2007, learned Single Judge of the

High Court dismissed his criminal revision petition. The

32
said order was challenged by Mr. P. Vijayan before this

Court. Taking note of all the ingredients in Section 227 of

the Criminal Procedure Code and the materials placed by

the prosecution and the reasons assigned by the trial

Judge for dismissing the discharge petition filed under

Section 227, this Court confirmed the order of the trial

Judge as well as the order of the High Court.        Though,

there was a considerable lapse of time from the alleged

occurrence and the further investigation by CBI inasmuch

as adequate material was shown, the Court permitted the

prosecution to proceed further.

24) Though delay is also a relevant factor and every

accused is entitled to speedy justice in view of Article 21 of

the Constitution, ultimately it depends upon various

factors/reasons and materials placed by the prosecution.

Though Mr. Lalit heavily relied on paragraph 20 of the

decision of this Court in Vakil Prasad Singh’s case

(supra), the learned Additional Solicitor General, by

drawing our attention to the subsequent paragraphs i.e.,

33
21, 23, 24, 27 and 29 pointed out that the principles

enunciated in A.R.Antulay’s case (supra) are only

illustrative and merely because of long delay the case of

the prosecution cannot be closed.

25) Mr. Dave, learned senior counsel appearing for the

intervenor has pointed out that in criminal justice “a

crime never dies” for which he relied on the decision of

this Court in Japani Sahoo vs. Chandra Sekhar

Mohanty, (2007) 7 SCC 394. In para-14, C.K. Thakker, J.

speaking for the Bench has observed:

“It is settled law that a criminal offence is considered as
a wrong against the State and the society even though it
has been committed against an individual. Normally, in
serious offences, prosecution is launched by the State
and a court of law has no power to throw away
prosecution solely on the ground of delay.”

In the case on hand, though delay may be a relevant

ground, in the light of the materials which are available

before the Court through CBI, without testing the same at

the trial, the proceedings cannot be quashed merely on

the ground of delay.      As stated earlier, those materials

34
have to be tested in the context of prejudice to the accused

only at the trial.

Observations by the High Court

26) Coming to the last submission about the various

observations made by the High Court, Mr. Lalit pointed

out   that    the    observations/reference/conclusion    in

paragraphs 64, 65, 69, 70, 72, 73 and 50 are not

warranted.    According to him, to arrive such conclusion

the prosecution has not placed relevant material.      Even

otherwise, according to him, if the same are allowed to

stand, the trial Judge has no other option but to convict

the appellant which would be against all canons of justice.

He further submitted that even if it is clarified that those

observations are to be confined for the disposal of the

appeal filed against framing of charges and dismissal of

discharge petition and need not be relied on at the time of

the trial, undoubtedly, it would affect the mind of the trial

Judge to take independent conclusion for which he relied

on a judgment of this Court in Common Cause, A

35
Registered Society vs. Union of India & Ors. (1999) 6

SCC 667. He pressed into service paragraph 177 which

reads as under:

“177. Mr Gopal Subramaniam contended that the Court has
itself taken care to say that CBI in the matter of investigation,
would not be influenced by any observation made in the
judgment and that it would independently hold the
investigation into the offence of criminal breach of trust or any
other offence. To this, there is a vehement reply from Mr
Parasaran and we think he is right. It is contended by him that
this Court having recorded a finding that the petitioner on being
appointed as a Minister in the Central Cabinet, held a trust on
behalf of the people and further that he cannot be permitted to
commit breach of the trust reposed in him by the people and
still further that the petitioner had deliberately acted in a wholly
arbitrary and unjust manner and that the allotments made by
him were wholly mala fide and for extraneous consideration, the
direction to CBI not to be influenced by any observations made
by this Court in the judgment, is in the nature of palliative. CBI
has been directed to register a case against the petitioner in
respect of the allegations dealt with and findings reached by
this Court in the judgment under review. Once the findings are
directed to be treated as part of the first information report, the
further direction that CBI shall not be influenced by any
observations made by this Court or the findings recorded by it,
is a mere lullaby.”

On the other hand, learned Additional Solicitor General

highlighted that these observations by the High Court are

based on the materials placed and, in any event, it would

not affect the interest of the appellant in the ultimate trial.

In view of the apprehension raised by the learned senior

counsel for the appellant, we also verified the relevant

36
paragraphs. In the light of the fact that it is for the trial

Judge     to   evaluate    all   the    materials    including    the

evidentiary value of the witnesses of the prosecution such

as Jagdish Kaur PW-1, Jagsher Singh PW-2, Nirpit Kaur

PW-10 and Om Prakash PW-8, alleged contradictory

statements, delay and the conduct of the Delhi Police in

filing   Status   Report     and       on   the   basis   of   further

investigation by the CBI, we clarify that all those

observations of the High Court would not affect the

ultimate analysis and final verdict of the trial Judge.

Conclusion:

27) In the light of the above discussion, we are of the

view that it cannot be concluded that framing of charges

against the appellant by the trial Judge is either bad in

law or abuse of process of law or without any material.

However, we clarify that de hors to those comments,

observations      and     explanations      emanating      from   the

judgment of the learned single Judge, which we referred

in para 26, the trial Judge is free to analyse, appreciate,

37
evaluate and arrive at a proper conclusion based on the

materials being placed by prosecution as well as the

defence. Inasmuch as the trial relates to the incident of

the year 1984, we direct the trial Judge to take sincere

efforts for completion of the case as early as possible for

which the prosecution and accused must render all

assistance.   Interim order granted on 13.08.2010 is

vacated.   With the above observation and direction, the

appeal is disposed of.

……………………………………J.
(P. SATHASIVAM)

……………………………………J.
(ANIL R. DAVE)

NEW DELHI;
SEPTEMBER 20, 2010.

38

Judgement of Supreme Court on declaration of title and possession

A finding on the question of title recorded in a suit for eviction would how far be binding in a subsequent suit for declaration of title and recovery of possession between the same parties?…SC Jt dt 22.09.2010

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2579 OF 2004

Md. Nooman & Ors.                                               ….Appellants

Versus

Md. Jabed Alam & Ors.                                          ….Respondents

JUDGMENT

AFTAB ALAM, J.

1.    A finding on the question of title recorded in a suit for eviction would

how far be binding in a subsequent suit for declaration of title and recovery

of possession between the same parties? This is the question that arises for

consideration in this appeal. The answer to the question would depend on, in

what manner the question of title was raised by the parties and how it was

dealt with by the court in the eviction proceedings. Ordinarily, it is true, in a

suit for eviction even if the court goes into the question of title, it examines

the issue in an ancillary manner and in such cases (which constitute a very
2

large majority) any observation or finding on the question of title would

certainly not be binding in any subsequent suit on the dispute of title. But

there may be exceptions to the general rule and as we shall find presently,

the case in hand seems to fall in that exceptional category of very limited

number of cases.

2.    Amina Khatoon, the mother of respondent nos.1-4, (who were

substituted in her place and brought on record after her death) instituted a

suit for eviction (Title Suit No.36 of 1973) in the Court of Second Munsif,

Arrah, against Md. Lukman, the father of appellant nos.1-6 (who were

similarly substituted in his place and brought on record after his death).

According to the plaintiff Amina Khatoon, the suit property originally

belonged to her mother-in-law, Sulakshana. Sulakshana had two other sons,

Md. Lukman (the original defendant) and Md. Jan, apart from Amina’s

husband, Mahmood Hassan. Amina further claimed that Sulakshana sold the

suit house to her through a registered sale deed dated August 13, 1957.

Following the purchase of the suit house, she moved the Block Development

Officer (BDO) and the municipality for mutation of her name in respect of

the suit house in the revenue and municipal records. The defendant Md.

Lukman, filed an objection before the BDO, but his objection was

disallowed and her name was entered in the revenue and municipal records.
3

Later on, the municipality filed a suit against her for arrears of tax

whereupon all the outstanding dues of tax were paid by her. It was further

the case of Amina, that she had let out the suit house to the defendant about

4 or 5 years prior to the filing of the suit on a monthly rent of Rs.10.00

(rupees ten only). The defendant did not pay the rent from September, 1971

to February 13, 1973. She then sent a registered notice to him under section

106 of the Transfer of Property Act, 1882 through her lawyer determining

the defendant’s tenancy and asking him to vacate the house by March 31,

1973. The defendant did not vacate the house forcing her to go to the court.

3.    The defendant in his written statement, apart from the formal

objections to the maintainability of the suit, denied that Sulakshana executed

any sale deed with respect to the suit house in favour of the plaintiff. He

described the sale deed, relied upon by the plaintiff as the basis of her title,

as a forged and fabricated document. In this connection, the defendant stated

that Sulakshana had an attack of paralysis before August 13, 1957 when the

sale was said to have been executed by her. She had lost her senses and she

was not in a position to execute any sale deed. No consideration was paid by

the plaintiff to Sulakshana and the title to the house never passed to her. The

defendant set up a rival claim of title over the suit house. He stated that

Sulakshana had transferred the suit house in his favour in 1950, by Hiba
4

(oral gift) and since then he was coming in possession of the suit property.

Originally, it was parti (vacant) land. He submitted a plan in the

municipality for construction of the house on it and constructed the house

after the plan was sanctioned. He was living in the house constructed by him

over the land which was given to him by his mother by Hiba. He denied any

relationship of landlord and tenant with the plaintiff and also denied to have

taken the suit house from the plaintiff on a monthly rent of Rs.10.00 (rupees

ten only). He never paid any rent to the plaintiff, nor was any rent due

against him.

4.    On the basis of the pleadings of the parties, the trial court framed

seven issues, of which issue nos.3 & 4 relating to the plaintiff’s claim of title

over the suit property and issue no.5 about the relationship of landlord and

tenant between the parties are relevant for this appeal. Those three issues are

as under:

“3. Has the plaintiff got title to the suit land?
4. Is the sale deed genuine, valid and for consideration?
5. Is there any relationship of landlord and tenant between the
Parties?”
5.    In support of the rival claims of title over the suit property, both the

plaintiff and the defendant led their respective evidences, both oral and

documentary. The defendant also examined the third brother, Md. Jan from
5

his side as DW11. On a consideration of the evidences adduced before it, the

trial court upheld the plaintiff’s claim of title to the property arriving at the

following finding:

“In view of the discussion made above I hold that the sale deed
(Ext.4) is genuine and that story set up by the defendant that an
oral hiba was made by Sulachna to him has not been proved.
The plaintiff has got Title to the suit land and the sale deed is
genuine valid and for consideration.”

6.    It then took up issue nos.5 and 6 (about the plaintiff’s entitlement to a

decree of eviction) together and came to hold and find that the relationship

of landlord and tenant between the parties had not been proved. In light of its

finding on issue no.5, the court further observed that in case the question of

title is raised by the defendant and if it is found that there is no contract of

tenancy, the proper course would be to dismiss the suit and not to convert it

into a declaratory or possessory suit which is of altogether a different nature.

The court further pointed out that the suit before it was neither for

declaration of title nor the plaintiff had paid ad valorem court fee. The

plaintiff was, therefore, not entitled to a decree of eviction since the

relationship of landlord and tenant was not established between the parties.

It, accordingly, dismissed the suit by judgment and order dated December

23, 1974.
6

7.    The plaintiff took the matter in appeal, (Title Appeal No.12 of 1975)

which too was dismissed by the Second Additional District Judge, Arrah, by

judgment and order dated February 19, 1975. From the judgment of the first

appellate court, it appears that before it the main focus was on the issue of

relationship of landlord and tenant between the parties. The trial court found

that the suit property was vacant land and not a house (the case of the

plaintiff was that the suit property was a piece of land 3 kathas and 5 dhurs

in area with a fallen down house). It also noted that on behalf of the

respondent no argument was advanced on the invalidity of the sale deed and

the controversy was mainly about the relationship of landlord and tenant

between the parties. On this issue, the appellate court came to the same

finding as the trial court and dismissed the plaintiff’s appeal observing as

follows:

“10. It is quite clear from the above enunciated principle that in
order to get a decree in such a suit the plaintiff must not come
to the Court with a false story. In the present case, it is quite
obvious the plaintiff has come with a false case that she let out
a house on the suit land to the deft (sic defendant) on a rent of
Rs.10/- per month. If there is no relationship of landlord and
tenant between the parties the plaintiff should have prayed for
declaration her title and recovery of possession after paying
advalorem Court fee on the current market value of the suit
property. By filing a suit for eviction of the defendant and
paying small Court fee on twelve month alleged rent of the
house, the plaintiff has adopted a tricky way of getting her title
7

declared and possession of the suit house recovered after paying
very low amount of the court fee.”

8.    The plaintiff did not take the matter any further but filed

another suit (Title Suit No.16/82 of 1978-79) against Md. Lukman

seeking declaration of title over the property and recovery of its

possession from the defendant. In this suit, her claim of title over the

suit property was exactly the same as in the previous suit. The

defendant too, apart from raising the objections based on limitation

and res judicata and similar other formal pleas mainly stuck to the

same story as in the previous case. According to the defendant, the

sale deed relied upon by the plaintiff was not a genuine document for

consideration and it was not executed by Sulakshana, who was the

mother of the defendant. It was stated on behalf of the defendant that

Sulakshana died in 1957. In the beginning of that year she suffered

from fever for about a month and remained confined to bed and

thereafter she suffered an attack of paralysis. She lost all power of

understanding and continued in that state till her death in August

1957. The defendant specifically pleaded that on August 13, 1957

when the disputed sale deed was shown to have been executed, she

had no power of understanding. It was further stated on his behalf that
8

the plaintiff’s husband was a clever litigant and he manoeuvred to

fabricate the sale deed by setting up some other woman as

Sulakshana. It was also stated that if there was in existence any sale

deed purportedly executed by Sulakshana, it must have been

manufactured in collusion with the scribe, the attesting witnesses and

the registrar and it would not confer any right, title or interest in the

suit property on the plaintiff. It was further the case of the defendant

that the disputed sale deed was never acted upon and the plaintiff

never came in actual possession of the suit property on this basis. The

defendant also denied the case of the plaintiff that she had inducted

him as a tenant in the suit premises on a monthly rental of Rs.10.00

(rupees ten only) or as a licensee, as totally false and concocted. The

defendant claimed that his mother Sulakshana had given him the suit

property in the year 1950 by Hiba (oral gift) and put him in actual

physical possession of the suit premises and since then he was coming

in its possession. He constructed a boundary wall around the land and

a house consisting of five rooms, etc. It was lastly claimed that the

defendant was coming and continuing in possession to the knowledge

of everyone, including the plaintiff and, thus, the defendant had, in

any event, acquired title by adverse possession.
9

9.    It is, thus, to be seen that in the second suit too both parties went to

the court with the same stories as in the previous suit, though, it is true

that this time each side led some additional evidence in support of its

case, for example, the plaintiff relied upon and produced a copy of the

judgment in the earlier suit in which her claim of title over the suit

property was upheld.

10.    The trial court framed a number of issues, of which issue nos. III, IV,

V & VI are relevant for this appeal and are as follows:

“III) Has the plaintiff got title over the suit property?
IV) Is there any relationship of landlord and tenant between the
plaintiff and the defendant?

V) Has the plaintiff acquired title by adverse possession?
VI) Is the plaintiff entitled to recovery of possession? “

The trial court considered issue nos. III, IV & V together and came to find

and hold that the plaintiff had succeeded in proving her title whereas the

defendant had failed to prove his adverse possession. Issue nos. III & V were

therefore decided in the plaintiff’s favour while issue no. IV was decided

against her. On the basis of its findings, the trial court held that the plaintiff

had valid cause of action and it, accordingly, decreed the suit by judgment

and order dated February 28, 1981.
10

11.   Against the judgment and order passed by the trial court the defendant

preferred an appeal (Title Appeal No.33 of 1981). The first appellate court

(the eighth Additional District Judge, Arrah), on a reappraisal of the

evidence produced by the parties, came to find and hold that the plaintiff had

failed to prove that Sulakshana had put her left thumb impression on the sale

deed (Ext.3) after understanding its contents and she had, thus, failed to

prove her title to the suit premises on the basis of the sale deed. The

appellate court, accordingly, allowed the appeal and by judgment and order

dated May 21, 1987 set aside the judgment and decree passed by the trial

court and dismissed the plaintiff’s suit.

12.   The original plaintiff was dead by this time and her heirs and legal

representatives, the present respondents, took the matter in second appeal

(Appeal from Appellate Decree No.236 of 1987) to the High Court. In the

High Court, the second appeal was heard on the substantial question of law

framed as under:

“…whether the judgment and decree regarding title passed in
Title Suit No.36 of 1973 (Ext.15) shall operate as res judicata
between the parties on the question of title.”

13.   The High Court by judgment and order dated May 24, 2002 answered

the question in the affirmative, in favour of the appellants (respondents
11

herein), allowed the appeal, set aside the judgment and order passed by the

appeal court below and restored the judgment and decree of the trial court.

The High Court noted that the earlier suit (for eviction) and the later suit for

declaration of title and recovery of possession were between the same parties

and were contested on exactly the same claims raised by the two sides. The

plaintiff on each occasion was claiming title to the suit premises on the basis

of a sale deed executed by Sulakshana in her favour in the year 1950. The

defendant on each occasion alleged that the sale deed was sham, fake and

fabricated and set up a rival claim of title on the plea that his mother

Sulakshana had made an oral gift of the suit premises in his favour in the

year 1950 and since then he was coming in possession over it. The premises,

when it was given to him in gift, was a vacant land over which he had

constructed a house after obtaining sanction from the municipality. The High

Court, therefore, observed as under:

“9… The facts of the earlier Title Suit No.36 of 1973, which
was between the same parties and present Title Suit No.16 of
1978 also between the same parties, show that the plea taken by
both the parties regarding title in both the Title Suits are same.

10. In the facts and circumstances of the case, the judgment and
decree regarding title passed in Title Suit No.36 of 1973
(Ext.15) shall operate as res judicata between the parties on the
question of title.”
12

14.   Mr. H.L. Agrawal, learned senior advocate, appearing for the

appellant contended that the High Court had seriously erred in holding that

the finding in the earlier suit of eviction would operate as res judicata in the

subsequent suit for declaration of title and recovery of possession. Mr.

Agrawal contended that a court dealing with an eviction suit was a creature

of the Rent Act and was a court of limited jurisdiction. It had no authority or

jurisdiction to decide disputes of title and hence, any finding recorded by it

on the larger issue of title could not be binding on a court under the Code of

Civil Procedure adjudicating upon a dispute of title between the two sides.

He further submitted that there may be instances where in a suit for eviction

the tenant might deny the title of the person seeking his ejectment and in

those cases the rent court may incidentally go into the question of title in

order to decide on the primary issue of eviction. But its findings on the issue

of title would only be incidental and never binding in a proper suit for

declaration of title and recovery of possession. In support of the submission

he relied upon a decision of this Court in Shamim Akhtar v. Iqbal Ahmad &

Anr., (2000) 8 SCC 123, in which it is said that in an eviction suit under the

Rent Act, the question of title can be considered by the court as an incidental

question and the final determination of title must be left to the decision of

the competent court. The decision in Shamim Akhtar arose from U.P. Urban
13

Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and the

Provincial Small Cause Courts Act, 1887 and it was on a totally different set

of facts. The observation of the court relied upon by Mr. Agrawal was of

course stating the general rule and no more than that. The decision in

Shamim Akhtar in no way helps the case of the appellants in the present

appeal.

15.        The counsel for the respondents on the other hand relied upon a

decision of this court in Sajjadanashin Sayed Md. B.E.Edr.by LRs. (D) vs.

Musa Dadabhai Ummer and Ors., (2000) 3 SCC 350. The decision in this

case dealt with the question when a matter can be said to be directly and

substantially in issue and when it is only collaterally and incidentally in

issue. The decision in Sajjadanashin does seem to help the case of the

respondents. But we may state here that Mr. Agrawal with great fairness

brought to our notice a decision of the Patna High Court1 in Pardip Singh vs.

Ram Sundar Singh, AIR (36) 1949 Patna 510, though it is clearly against

him. It is an old decision in which the division bench of the High Court

placed reliance on two earlier decisions of the Privy Council. In Pardip

Singh Meredith J., speaking for the division bench of the court observed as

follows:

1
To which both, Mr. Agrawal and the two of us have been very closely associated at some time.
14

“The decision in a rent suit is not res judicata on the question of
title unless the question of title had to be decided, was expressly
raised, and was expressly decided between the parties and in
each case it is necessary to examine carefully the decision in the
rent suit before any opinion can be formed as to whether it
operates as res judicata on the question of title or not.
Ordinarily the decision would be res judicata only with regard
to the existence of the relationship of landlord and tenant. The
difference in the two classes of cases is very well illustrated in
two Privy Council decisions, namely, Run Bahadoor Singh v.
Mt. Lucho Koer, 12 I.A. 23: (11 Cal. 301 P.C.), where it was
held that the decision was not res judicata as the question of
title had been gone into only incidentally and collaterally, and
Radhamadhub Holdar v. Manohar Mookerji, 15 I.A. 97: (15
Cal. 756 P.C.), where the question of title was directly decided
in a rent suit, and the decision was held to be res judicata.”

16.   We respectfully concur with the view expressed in the decision in

Pardip Singh.

17.   We have carefully examined the pleadings of the parties in the two

suits and the evidences led by them in support of their respective claims

regarding title in the two suits. And, we are satisfied that the issue of title

was expressly raised by the parties in the earlier eviction suit and it was

expressly decided by the eviction court. The question of title was directly

and substantially in issue between the parties in the earlier suit for eviction.

Hence, the High Court was right in holding that the finding recorded in

favour of the plaintiff in the earlier suit for eviction would operate as res
15

judicata in the subsequent suit for declaration of title and recovery of

possession between the parties.

18.   We, thus, find no merit in the appeal. It is dismissed, but in the facts

and circumstances of the case there will be no order as to costs.

……………………………..J
(AFTAB ALAM)

………………………………J
(R.M. LODHA)

Follow

Get every new post delivered to your Inbox.

Join 36 other followers