BRAHM SWAROOP & ANR.versusSTATE OF U.P.

                 [201 O] 15 (ADDL.) S.C.R. 1


                BRAHM SWAROOP & ANR.                              A
                               V.
                       STATE OF U.P.
            (Criminal Appeal No. 1235 of 2005)

                    OCTOBER 26, 2010
                                                                  B
    [P. SATHASIVAM AND DR. B.5. CHAUHAN, JJ.]

      Penal Code, 1860 - ss. 302134 and 307134 - Prosecution
under - 6 accused causing death of 4 persons - Trial court
convicted accused Nos. 2 and 3 u/s. 302!34_J3lld accused C
Nos. 1 and 4 ulss. 302134 and 307134 -Accused Nos. 5 and
 6 acquitted of all the charges i.e. uls. 148, 302, 149, 307, 396,
 424 /PC and s. 25 of Arms Act - High Court confirming the
conviction order and setting aside the acquittal order,
convicted accused Nos. 5 and 6 u/ss. 302134 and 307134 and o
 upheld the acquittal uls. 25 of Arms Act - On appeal, held: In
 view of the trustworthy evidence of the injured eye-witness and
other eye-witnesses, conviction of the accused persons is
justified - Acquittal u/s. 25 was correct - Arms Act, 1959 - s.
 25.                                                               E
     Code of Criminal Procedure, 1973 - s. 174 - Inquest
report - Evidentiary value of - Held: Inquest report cannot be
treated as substantive evidence - It can be utilized only for
contradicting the evidence of witnesses of the inquest -
Omissions in the inquest report are not sufficient to put the F
prosecution out of court.

     Witnesses:·

     Evidence of witnesses - Discrepancies in - Effect of - G
Held: Minor discrepancies which do not shake the basic
version of the prosecution case, cannot itself prompt the court
to reject the evidence in its entirety.

    Eye-witness - Evidentiary value of - Held: Evidence of
                            1                              H
    2     SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A eye-witnesses cannot be discarded if their names do not figure
    in the inquest report - If the evidence of eye-witnesses is
    credible, question of motive becomes irrelevant - Motive.

        Related witness - Evidentiary value of - Held:
    Relationship of the witness with the deceased is not a factor
8
    which effects his credibility - However, in such cases the court
    has to adopt a careful approach and analyse the evidence
    so as to find out its credibility.

      Injured witness - Evidentiary value of - Held: Generally
C such witness is considered to be reliable - Convincing
  evidence is required to discredit an injured witness.

           Criminal Trial - Delay in sending FIR to the Magistrate
    - Effect of - Held: An unexplained delay by itself may not be
0   fatal.

        Appeal - Appeal against acquittal - Interference with -
    Scope of - Discussed.

       Appellants-accused, alongwith other accused, were
E prosecuted for having caused death of 4 persons. The
  prosecution case was that deceased No. 1 had an enmity
  with the family of accused No. 1. On the day of the
  incident, accused Nos. 1 to 6 surrounded the deceased
  persons and the informant (PW1), and started firing at
F them with their respective weapons. Deceased No. 1 died
  on the spot. Deceased Nos. 2 and 4 sustained serious
  injuries and as a result, became unconscious. Deceased
  No. 3 and PW1 also sustained injuries. Accused No. 5
  took away the rifle of deceased No. 2 and accused No. 6
G took away the licensed gun of one 'G' who had kept the
  same in his jeep. PW2 and one 'S' were also the eye-
  witnesses to the incident. Deceased Nos. 2, 3 and 4 later
  succumbed to the injuries. The trial court acquitted
  accused Nos. 5 and 6 of all the charges i.e. u/ss. 148, 302,
H
    BRAHM SWAROOP & ANR. v. STATE OF U.P.                 3


149, 307, 396 and 424 IPC and u/s. 25 of the Arms Act, A
1959. Accused Nos. 3 and 2 were convicted for the
offence punishable u/s. 302/34 IPC and were awarded
death sentence. Accused Nos. 1 and 4 were convicted for
the offences punishable u/s. 302/34 and 307/34 and were
awarded imprisonment for life. Accused persons as well ·B
as the State filed appeals before the High Court against
the orders of conviction and acquittal respectively. The
High Court dismissed the appeals filed by the accused
persons with the modification that the death sentence
was altered to life imprisonment. Allowing the appeal filed c
by the State, the High Court convicted accused Nos. 5
and 6 for the offences punishable u/ss. 302/34 and 307/
34 IPC and awarded life imprisonment.

     In the instant appeals, the appellant-accused
contended that the prosecution did not disclose the D
genesis of the case correctly; that the inquest was
manipulated; that the use of the weapons alleged were
not established; that there was delay in sending the
special report to the Magistrate; that the deceased Nos.
2 and 4 were history-sheeters and had large number of E
enemies, and thus there was possibility of somebody
else having killed them; that the evidence of the first
informant could not be relied on as he could not tell the
names of fathers of PWs 5 and 6; that the prosecution
failed to examine independent witnesses; and that F
reversal of the acquittal order of accused Nos. 5 and 6
by the High Court was unjustified.

    Dismissing the appeals, the Court

    HELD: 1.1. Evidence of eye-witnesses can not be            G
discarded if their names do not figure in the inquest report
prepared at the earliest point of time. The object of the
proceedings u/s. 174 Cr.PC is merely to ascertain whether
a person died under suspicious circumstances or met
                                                               H
    4    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A with an unnatural death and, if so, what was its apparent
  cause. The question regarding the details of how the
  deceased was assaulted or who assaulted him or under
  what circumstances he was assaulted is foreign to the
  ambit and scope of such proceedings i.e. the inquest
B report is not the statement of any person wherein all the
  names of the persons accused must be mentioned.
  Omissions in the inquest report are not sufficient to put
  the prosecution out of court. The basic purpose of
  holding an inquest is to report regarding the apparent
c cause of death, namely, whether it is suicidal, homicidal,
  accidental or by some machinery etc. It is, therefore, not
  necessary to enter all the details of the overt acts in the
  inquest report. The inquest report cannot be treated as
  substantive evidence but may be utilised for contradicting
  the witnesses of inquest. [Para 7] [20-G-H; 21-A-B]
0
       Podda Narayana and Ors. v. State of Andhra Pradesh
  AIR 1975 SC1252; Khujji v. State of Madhya Pradesh AIR
  1991 SC 1853; Georgeand Ors. v. State of Kera/a and Anr.
  (1998) 4 SCC 605; Shaikh Ayub v. State of Maharashtra
E (1998) 9 SCC 521; Suresh Rai v. State of Bihar (2000) 4 SCC
  84; Amar Singh v. Ba/winder Singh and Ors. (2003) 2 SCC
  518; Radha Mohan Singh alias Lal Sahab and Ors. v. State
  of Uttar Pradesh (2006) 2 SCC 450; Aqeel Ahmad v. State
  of UttarPradesh AIR 2009 SC 1271 - relied on.
F
      1.2 Even where, the attention of the author of the
  inquest is drawn to the alleged discrepancy, overwriting,
  omission or contradiction in the inquest report and the
  author in his deposition has also admitted that through
G a mistake he omitted to mention the crime number in the
  inquest report, just because the author of the report had
  not been diligent did not mean that reliable and clinching
  evidence adduced by the eye-witnesses should be
  discarded by the court. [Para 9] [21-G-H; 22-A]
H
    BRAHM SWAROOP & ANR. v. STATE OF U.P.                  5


    Dr. Krishna Pal and Anr. v. State of Uttar Pradesh (1996)   A
7 sec 194 - relied on

     1.3 In the instant case, it cannot be said that any
omission or discrepancy in the inquest is fatal to the
prosecution's case and such omissions would
                                                            8
necessarily lead to the inference that FIR is ante-timed.
The Sub Inspector (PW.7) had denied the suggestion
made by defence that till the time of preparing the report,
the names of the accused persons were not available. He
further stated that the column for filling up the nature of
weapons used in the crime was left open as it could be C
ascertained only by the Doctor what weapons had been
used in the crime. [Para 1O] [22-B-C]

     Bairam Singh and Anr. v. State of Punjab (2003) 11 SCC
286; State of Rajasthan v. Teja Singh and Ors. (2001) 3 SCC D
147; Ramesh Baburao Devaskar and Ors. v. State of
Maharashtra (2007) 13 SCC 501 ; Sarvesh Narain Shukla v.
Daroga Singh and Ors. AIR 2008 SC 320; Aqeel Ahmad v.
State of Uttar Pradesh AIR 2009 SC 1271 - relied on.

    Badam Singh v. State of M.P. (2003) 12 SCC 792 -            E
referred to.

     2.1 The report to the Magistrate is indispensable and
absolute and it must be sent at the earliest, promptly and
without any undue delay as the purpose is to avoid the F
possibility of improvement in the prosecution's case and
the introduction of a distorted version by deliberations
and consultation and to enable Magistrate concerned to
keep a watch on progress of investigation. However, no
rule of universal application can be laid down that G
whenever there is some delay in sending the FIR to the
Magistrate, the prosecution version becomes unreliable.
It would depend upon the facts of each case. If there has
been some lapse on the part of the Investigating Officer
                                                                H
    6     SUPREME COURT REPORTS [2010) 15 (ADDL.) $.C.R.


A that would not affect the credibility of the prosecution's
  witnesses. In case the prosecution offers a satisfactory
  explanation for the delay, the court has to test it. An
  unexplained delay by itself may not be fatal, but it is
  certainly a relevant aspect which can be taken note of
B while considering the role of the accused persons for the
  offence. [Paras 15 and 16] [23-F-H; 24-A-D]

      2.2 In the instant case, the prosecution had not been
  asked to explain the delay in sending the special report.
  More so, the plea that the FIR was ante-timed, cannot be
C accepted in view of the evidence available on record
  which goes to show that the FIR had been lodged
  promptly within 20 minutes of the incident as the Police
  Station was only 1 k.m. away from the place of
  occurrence and names of all the accused had been
D mentioned in the FIR. [Para 18] (25-B]

         State of Kera/a v. Anilachandran @ Madhu and Ors. AIR
    2009 SC 1866; Pala Singh v. State of Punjab AIR 1972 SC
    2679; Sarwan Singh v. State of Punjab AIR 1976 SC 2304;
E   PandurangChandrakant Mhatre and Ors. v. State of
    Maharashtra (2009) 10 SCC 773; Akbar Sheikh and Ors. v.
    State of WB. (2009) 7 sec 415 - relied on.

       3. Courts attach great importance to the prompt
  lodging of FIR and prompt interrogation of a witness u/
F s. 161 Cr.P.C. as the same substantially eliminates the
  chances of embellishment and concoction creeping into
  the account contained therein. The prompt lodging of the
  FIR is proved from the chik report and the statement of
  the complainant u/s. 161 Cr.P.C., which was recorded
G immediately after lodging the FIR. Any defect in the
  preparation of the inquest report by the investigating
  officer cannot lead to an inference that the FIR was not
  registered at the alleged time. The FIR contains all the
  essential features of the prosecution's case including
H names of eye-witnesses, time and place of incident,
    BRAHM SWAROOP & ANR. v. STATE OF U.P.                 7

names of the victim, motive, name of the accused               A
persons, weapons in their hands and manner of assault.
Thus, all these things lend a seal of assurance not only
to the presence of eye-witnesses at the place of the
incident, but also to the participation of the appellants in
the crime. [Para 18] [25-F-H; 26-A]                            B

     4. The eye-witnesses have been cross-examined
thoroughly, but nothing useful to the accused could be
elicited from them. The testimony of the eye- witnesses
is credible and worthy of confidence. If the evidence of
the eye-witnesses is trustworthy and believed by the           C
court, the question of motive becomes totally irrelevant.
[Para 37] [35-E; 36-B]

     5. The plea of the accused that the place of
occurrence is not free from doubt as it has been stated        D
by the Investigating Officer (PW.10) that on receiving the
phone call purported to have been made from the
residence of D.1 that dacoits had attacked them, he made
an entry in the General Diary, and proceeded to that place
and recorded the statement of some persons there; and          E
that vehicle in which D.2 and D.4 were sitting did not have
any blood marks and no blood stains were. found near
the jeep and no pellets had been recovered from the said
place, is not acceptable. If this plea is accepted then the
question of collecting the blood stained cement from the
                                                               F
counter of the repairing shop could not arise. The 1.0.
(PW.10) has stated that the tool box was found marked
with splinters and badly damaged. More so, the statement
of PW.1, the informant, cannot be ignored as he has
stated that 0.3 was bleeding but blood did not fall on the     G
ground as his clothes absorbed all the blood. He had
further stated that D.1 was sitting at the counter and there
was quite a lot of blood from the wounds of D.1 which
fell on the ground and not on the counter. [Paras 19 and
20] [26-8-H]
                                                               H
    8     SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A      6. Merely because the witnesses were close relatives
  of the deceased, that cannot be a ground to discard their
  evidence. Their relationship to one of the parties is not a
  f<1ctor that effects the credibility of a witness, more so, a
  relation would not conceal the actual culprit and make
B allegations against an innocent person. A party has to lay
  down a factual foundation and prove by leading
  impeccable evidence in respect of its false implication.
  However, in such cases, the court has to adopt a careful
  approach and analyse the evidence to find out whether
C it is cogent and credible evidence. [Paras 21) [27-B-C]

        Dalip Singh and Ors. v. State of Punjab AIR 1953 SC
    364; Masalti v. State of U.P. AIR 1965 SC 202; Lehna v. State
    of Haryana (2002) 3 SCC 76; Rizan and Anr. v. State of
    Chhattisgarh Through The Chief Secretary, Government of
D Chhatisgarh, Raipur, Chhatisgarh (2003) 2 SCC 661 - relied
  on.

      7.1 Where a witness to the occurrence has himself
  been injured in the incident, the testimony of such a
E 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
F an injured witness." [Para 22) [27-F-G]

      State of UP. v. Kishan Chand and Ors. (2004) 7 SCC
  629; Krishan and Ors. v. State of Haryana (2006) 12 SCC
  459; Dinesh Kumar v. State of Rajasthan (2008) 8 SCC 270;
  Jarnail Singh and Ors. v. State of Punjab (2009) 9 SCC 719;
G Vishnu and Ors. v. State of Rajasthan (2009) 10 SCC 477;
    Anna Reddy Sambasiva Reddy and Ors. v. State of Andhra
    Pradesh AIR 2009 SC 2661; Balraje @ Trimbak v. State of
    Maharashtra (2010) 6 SCC 673 - relied on.

H       7.2 In the instant case, the injured witness PW.1 has
    BRAHM SWAROOP & ANR. v. STATE OF U.P.                  9


been examined, his testimony cannot be discarded, as his        A
presence on the spot cannot be doubted, particularly, in
view of the fact that immediately after lodging of FIR, the
injured witness had been medically examined on the
same day. without any loss of time. The injured witness
had been put through a grueling cross-examination but           B
nothing can be elicited to discredit his testimony. [Para
21] [27-E]

    8. In the fact-situation of the instant case, though D.1
was history-sheeter and D.2 and D.4 had criminal cases          C
against them and they had large number of enemies, it
cannot be inferred that somebody else had killed them.
[Para 23] [28-8]

     9.1 While appreciating the evidence of a witness,
minor discrepancies on trivial matters, which do not            D
affect the core of the prosecution's case, may not prompt
the court to reject the evidence in its entirety. "Irrelevant
details which do not in any way corrode the credibility of
a witness cannot be labelled as omissions or
contradictions." Difference in some minor detail, which         E
does not otherwise affect the core of the prosecution
case, even if present, would not itself prompt the court
to reject the evidence on minor variations and
discrepancies. After exercising care and caution and
sifting through the evidence to separate truth from             F
untruth, exaggeration and improvements, the court
comes to a conclusion as to whether the residuary
evidence is sufficient to convict the accused. Thus, an
undue importance should not be attached to omissions,
contradictions and discrepancies which do not go to the         G
heart of the matter and shake the basic version of the
prosecution witness. As the mental capabilities of a
human being cannot be expected to be attuned to absorb
all the details, minor discrepancies are bound to oc.cur
in the statements of witnesses. [Paras 25] [28-H; 29-A-C]
                                                                H
    10    SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A     9.2 In the facts and circumstances of the case, there
  was no conflict between the direct evidence and medical
  evidence. Even if deceased were having some minor
  abrasions and contusions for the reason that they might
  have reacted to the assault and tried to save themselves,
B cannot create a doubt in the prosecution case about the
  presence of the witnesses. The High Court has furnished
  a cogent explanation for contradiction between the
  medical and ocular evidence. [Paras 25 and 37] [35-H; 36-
    A]
c       State of UP. v. M.K. Anthony AIR 1985 SC 48; State of
    Rajasthan v.Om Prakash AIR 2007 SC 2257; State v.
    Saravanan and Anr. AIR 2009 SC 152; Prithu @ Prithi Chand
    and Anr. v. State of Himachal Pradesh (2009) 11 SCC 588 -
    referred to.
D
       10.1 The appellate court should not ordinarily set
  aside a judgment of acquittal in a case where two views
  are possible, though the view of the appellate court may
  be more, the probable one. While dealing with a judgment
E of acquittal, the appellate court must consider the entire
  evidence on record, so as to arrive at a finding as to
  whether the views of the trial court were perverse or
  otherwise unsustainable. The appellate court is entitled
  to consider whether in arriving at a finding of fact, the trial
F court had failed to take into consideration any admissible
  evidence and/or had taken into consideration evidence
  brought on record contrary to law. Similarly, the incorrect
  placing of the burden of proof may also be a subject
  matter of scrutiny by the appellate court. The court of
G appeal may not interfere where two views are possible
  for the reason that in such a case it can be held that
  prosecution failed to prove the case beyond reasonable
  doubt and accused is entitled for benefit of doubt. [Para
  26] [29-F-G; 30-A]

H        Balak Ram and Anr. v. State of UP. AIR 1974 SC 2165;
    BRAHM SWAROOP & ANR. v. STATE OF U.P.                11

Allarakha KMansuri v. State of Gujarat (2002) 3 SCC 57;        A
Raghunath v. State ofHaryana (2003) 1 SCC 398; State of
UP. v. Ram Veer Singh and Ors. AIR 2007 SC 3075; S.
Rama Krishna v. S. Rami Reddy (0) by his LRs. and Ors.
AIR 2008 SC 2066; Sambhaji Hindurao Deshmukh and
Ors. v. State of Maharashtra (2008) 11 SCC 186; Arulvelu and   B
Anr. v. State (2009) 10 SCC 206; Perla Somasekhara Reddy
and Ors. v. State of A.P. (2009) 16 SCC 98; Ram Singh alias
Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445 -
relied on.

      10.2 In exceptional cases where there are compelling C
circumstances, and the judgment under appeal is found
to be perverse, the appellate court can interfere with the
order of acquittal. The appellate court should bear in mind
the presumption of innocence of the accused and further
that the trial court's acquittal bolsters the presumption of D
his· innocence. Interference with the decision of the trial
court in a routine manner, where the other view is
possible should be avoided, unless there are good
reasons for such interference. [Para 30] [32-D]
                                                             E
      Sheo Swaroop and Ors. v. King Emperor AIR 1934 PC
227; Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC
415; Stateof Uttar Pradesh v. Banne @ Baijnath and Ors.
(2009) 4 sec 271, relied on.

    11.1 The acquittal of Accused Nos. 5 and 6 by the trial    F
court cannot be held to be based on cogent reasons. The
High Court has rightly reversed their acquittals for
offences u/ss. 302/34 and 307/34 IPC, but has rightly
upheld their acquittal u/s. 25 of the Arms Act. [Para 37]
~6~                                                            G
     11.2 The fact that PW-1 failed to name the fathers of
the two accused persons namely A-5 and A-6, alone could
not discount their involvement in the crime. More so, it is
evident from the record that there was no suggestion to        H
    12   SUPREME COURT REPORTS (201 OJ 15 (ADDL.) S.C.R.


A PW.1 that the names of the fathers of the two accused
  persons were mentioned at the instance of some other
  persons. He had not been asked as to how the name of
  their father had been mentioned in the FIR. Such an
  inference could not have been drawn by the trial court
B without giving an opportunity of explanation to PW.1.
  [Paras 33) [34-A-B]

        Sane Lal and Ors. v. State of UP. AIR 1978 SC 1142;
    Rotash v. State of Rajasthan (2006) 12 SCC 64- relied on.

C      11.3 The inference of the trial court that the FSL
  report did not corroborate the usage of the gun recovered
  from AS, in the crime and was a major flaw in the
  prosecution's case was rightly held by High Court as
  perverse. The case of the prosecution had all along been
D that A-5 was armed with a DBBL gun (which is a different
  type of gun from the recovered gun), and the said gun
  was not mentioned either in the FIR or in the testimonies
  of any of the prosecution witnesses. It was the statement
  of A-5 that he had used the said gun in the crime. Further,
E this statement was inadmissible as A-5 had made the
  statement to a police officer, while he was in custody.
  [Para 34) [34-C-E]

       11.4. So far as the question of the other gun, which
  A-6 took from one 'G' from the complainant party and its
F recovery from A-5 is concerned, both the trial court and
  the High Court disbelieved the recovery. However, the
  High Court took the view that no benefit can be given to
  the accused persons on the ground that the recovery of
  the said gun was not worth to be believed. Even in the
G absence of the proper recovery of the said gun, there
  was enough evidence to prove beyond reasonable doubt,
  the guilt of the accused. The High Court took the view
  that in the light of the fact that the eye-witness accounts
  and the medical evidence were in harmony with each
H other and clearly established the guilt of A-5 and A-6, the
   BRAHM SWAROOP & ANR. v. STATE OF U.P.               13


decision of the trial court to acquit them could not be in   A
consonance with the evidence available on record and
thus, perverse. [Para 35] [34-G-H; 35-A]

                    Case Law Reference:
  AIR 1975 SC 1252        Relied on.      Para 7             B
  AIR 1991 SC 1853        Relied on.      Para 7
  (1998) 4 sec 605        Relied on.      Para 7
  (1998) 9 sec 521        Relied on.      Para 7
                                                             c
  (2000) 4 sec 84         Relied on.      Para 7
  (2003) 2 sec 518        Relied on.      Para 7
  (2006) 2 sec 450        Relied on.      Para 7
                                                             D
   AIR 2009 SC 1271       Relied on.      Paras 7 and 15
  (1996) 1 sec 194        Relied on.      Para 9
  (2003) 12 sec 192       Referred to.    Para 11
  (2003) 11 sec 286       Relied on.      Para 12            E

  c2001) 3 sec 147        Relied on.      Para 13
  (2001) 13 sec 501       Relied on.      Para 13
  AIR 2008 SC 320         Relied on.      Para 14            F
  AIR 2009 SC 1866        Relied on.      Para 16
  AIR 1972 SC 2679        Relied on.      Para 16
  AIR 1976 SC 2304        Relied on.      Para 16
                                                             G
  (2009) 1o sec 113       Relied on.      Para 16
  (2009) 1 sec 415        Relied on.      Para 17
  AIR 1953 SC 364         Relied on.      Para 21
                                                             H
    14      SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.


A        AIR 1965 SC 202     Relied .on.    Para 21
         (2002) 3 sec 76     Relied on.     Para 21
         (2003) 2 sec 661    Relied on.     Para 21

B        (2004) 1 sec 629    Relied on.     Para 22
         (2006) 12 sec 459   Relied on.     Para 22
         (2008) 8 sec 210    Relied on.     Para 22
         (2009) 9 sec 119    Relied on.     Para 22
c
         (2009) 10 sec 477   Relied on.     Para 22
         AIR 2009 SC 2661    Relied on.     Para 22
         (201 O) 6 sec 673   Relied on.     Para 22
D        AIR 1985 SC 48      Relied on.     Para 25
         AIR 2007 SC 2257    Relied on.     Para 25
         AIR 2009 SC 152     Relied on.     Para 25
E        (2009) 11 sec 588   Relied on.     Para 25
         AIR 1974 SC 2165    Relied on.     Para 26
         (2002) 3 sec 57     Relied on.     Para 26
         (2003) 1 sec 398    Relied on.     Para 26
F
         AIR 2007 SC 3075    Relied on.     Para 26
         AIR 2008 SC 2066    Relied on.     Para 26
         (2008) 11 sec 186   Relied on.     Para 26
G
         (2009) 1o sec 206   Relied on.     Para 26
         (2009) 16 sec 98    Relied on.     Para 26
         (2010) 2 sec 445    Relied on.     Para 26
H
   BRAHM SWAROOP & ANR. v. STATE OF U.P.                  15


  AIR 1934 PC 227          Relied on.       Para 27             A
  (2007) 4 sec 415         Relied on.       Para 28

  (2009) 4 sec 211         Relied on.       Para 29

  AIR 1978 SC 1142         Relied on.       Para 32
                                                                B
  (2006) 12 sec 64         Relied on.       Para 33

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1235 of 2005.

    From the Judgment & Order dated 4.5.2005 of the High        C
Court of Judicature at Allahabad in Govt. Appeal No. 6180 of
2003.

                           WITH
                                                                D
Crl.A.No. 1295-1296 of 2005.

     KTS Tulsi, Ravinder Singh, Anurag Dubey, D.P. Pande,
S.R. Setia for the Appellants.

    Shail Kr. Dwivedi, AAG, Ashutosh Kumar Sharma, Anuvrat      E
Sharma, Raj Singh Rana for the Respondent.

    The Judgment of the Court was delivered by

     DR. B.S. CHAUHAN, J. 1. These appeals have been
preferred against the judgment and order dated 4th May, 2005,   F
of the High Court of Judicature at Allahabad, passed in
Criminal Appeal No. 6180 of 2003, along with Criminal Appeal
Nos.3749 of 2003 and 4648 of 2004, against the judgment and
order of the Sessions court, Bareilly dated 5th August, 2003,
in Sessions Trial No. 855 of 2001 in Crime No. 384/2000.        G

     2. Fact and circumstances giving rise to these appeals
are as under:

    (A) First Information Report No.239/2000 was lodged on
                                                                H
    16    SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.


A        31st May, 2000 at 3.20 P.M. by Atar Singh (PW.1) at
         Police Station Bahedi, Distt. Bareilly. It stated that his
         grand father Natthu Singh @ Raghunath Singh had an
         enmity with the family of one Nern Chand Gangwar and on
         that date he along with Natthu Singh @ Raghunath Singh,
B        Rajendra Singh @ Gali, Virendra Singh, Dharam Pal
         Singh, Rajendra Singh and Satyapal Singh had come to
         Bahedi to get the Dynamo of their Jeep No. ODA 6162
         repaired. Natthu Singh @ Raghunath Singh was sitting at
         the counter of the repairing shop, while Dharam Pal Singh
         and Rajendra Singh were sitting in the Jeep. Virendra
c        Singh was standing in front of the Jeep. Gyanendra Singh
         kept his gun in the Jeep near Dharam Pal Singh and went
         towards the grove to urinate. At about 3.00 P.M., Nern
         Chand Gangwar (A.1) and his sons Balwant (A.2) and
         Chandra Pal (A.3), Jogendra (A.4), Brahm Swaroop (A.5)
D
         and Jagdish Baggar (A.6) armed with deadly weapons
         came there and started firing, after surrounding these
         persons with their respective weapons. Nern Chand
         Gangwar (A.1) assaulted Natthu Singh (D.1) with his
         Kanta. He died on the spot. Rajendra Singh (D.2) and
E        Dharampal Singh (D.4) received serious injuries by fire
         arm and became unconscious. Virendra Singh (D.3) fell
         near the Jeep after receiving fire arm injuries. The
         informant, Atar Singh (PW.1) also received injuries in the
         incident. Brahm Swaroop (A.5) took away the rifle of
F        Rajendra Singh (D.2) and Jagdish Baggar (A.6) took away
         the licensed gun of Gyanendra. It was also alleged that the
         chap Serial No. 5809 of the gun of the accused had fallen
         on the spot. All the three injured persons were taken to the
         hospital at Bahedi. Rajendra Singh (PW.2) and Satyapal
G        Singh also witnessed the incident.

         (B) After investigation of the case, the prosecution
         submitted the chargesheet under Sections 396, 148, 302
         read with 149, 307/149 of the Indian Penal Code, 1860
         (hereinafter called the IPC). Brahm Swaroop (A.5) and
H
BRAHM SWAROOP & ANR. v. STATE OF U.P.                       17
        [DR. B.S. CHAUHAN, J.]
Balwant (A.2) were further charged under Section 25 of the        A
Arms Act (hereinafter referred to as 'Arms Act'). During
the trial, the prosecution examined 12 witnesses to prove
its case. After considering the whole case and
appreciating the evidence, on the conclusion of the trial,
the Sessions court vide judgment and order dated 5th              B
August, 2003, in Sessions Trial No. 855 of 2001 acquitted
Brahm Swaroop (A.5) and Jagdish Baggar (A.6) of all the
charges under Sections 148, 302, 149, 307, 396, 424
l.P.C. and Section 25 of the Arms Act. Chandra Pal (A.3)
and Balwant (A.2) were convicted under Section 302 read           c
with 34 l.P.C. and were awarded death sentence and a
fine of Rs.5,000/- and, in case of failure to deposit the fine,
six months imprisonment in addition. Nern Chand Gangwar
(A.1) and Jogendra (A.4) were convicted under Sections
302/34 l.P.C. and awarded imprisonment for life with fine         D
of Rs. 10,000/- each, and in case of failure to deposit the
fine, one year further imprisonment. Nern Chand Gangwar
(A.1) and Jogendra (A.4) were further convicted under
Sections 307/34 l.P.C. and awarded 10 years rigorous
imprisonment and fine of Rs.5000/- each and in case of            E
failure to deposit the fine, they would undergo 6 months
imprisonment in addition.

(C) Being aggrieved by the aforesaid judgment and order
of the Sessions Court, three appeals bearing Criminal
Appeal No. 4648 of 2004, Criminal Appeal No. 3749 of              F
2003 and Government Appeal No. 6180 of 2003 were filed
before the High Court of Judicature at Allahabad. The High
Court vide its judgment and order dated 4th May, 2005,
disposed of the aforesaid three appeals by the impugned
common judgment and order dismissing the appeals filed            G
by the convicts, however, with the modification that the
sentence of death imposed by the trial court on Chandra
Pal (A.3) and Balwant (A.2) was altered to life
imprisonment. The Government appeal against acquittal
of Braham Swaroop (A.5) and Jagdish Baggar (A.6) stood            H
    18     SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A        allowed, and they were convicted under Section 302 read
         with 34 l.P.C. and sentenced to undergo imprisonment for
         life with a fine of Rs.10,000/- and, in default of payment of
         fine, rigorous imprisonment for a further period of one year.
         Both the said accused were further convicted under
B        Sections 307/34 l.P.C. and sentenced to undergo 10 years
         rigorous imprisonment with a fine of Rs.5,000/- each and,
         in default of payment of fine, for a further period of six
         months R.I. The High Court directed that all the
         punishments would run concurrently. However, their
c        acquittal for the offences under Section 25 of the Arms Act,
         was upheld.

       3. Shri K.T.S. Tulsi, learned senior counsel appearing for
  the appellants in all three appeals, has submitted that the place
0 of occurrence is not free from doubt for the reason that no blood
  stained earth had been lifted from the place near the Jeep and
  no blood stains were found in the Jeep. The incident had
  occurred at the residence of Natthu Singh @ Raghunath Singh
  (D.1) as an entry has been made in this regard in the General
E Diary at about 11.00 A.M. and the investigating officer Raj Guru,
  Inspector, P.S. Bahedi (PW.10) had gone to that place. The
  prosecution did not disclose the genesis of the case correctly.
  Natthu Singh @ Raghunath Singh (D.1) was a history-sheeter
  and a large number of criminal cases were pending against
  him. Virendra Singh (D.3) and Dharampal Singh (D.4) were
F involved in criminal cases and facing trial in the said cases.
  Therefore, they have large number of enemies and the whole
  case of the prosecution becomes totally improbable. Had the
  incident occurred as alleged by the prosecution, the Jeep
  should have got some bullet marks as Rajendra Singh (D.2)
G and Virendra Singh (D.3) were sitting in the Jeep. Neither were
  any bullet marks on the Jeep nor had any pellets been recovered
  from the Jeep or the nearby area. An FIR had initially been
  registered under Section 396 l.P.C. and, in view of the fact, that
  one of the victims died on the spot and another died enroute
H to the hospital, had the prosecution given the correct version
    BRAHM SWAROOP & ANR. v. STATE OF U.P.                         19
            [DR. B.S. CHAUHAN, J.]
of events, the FIR ought to have been registered under Sections         A
302 and 307 l.P.C. along with other Sections. The inquest has
been manipulated and there are five blanks therein which make
the whole prosecution case doubtful. The use of weapons was
not established. The Magistrate received the Special Report
after five days. Atar Singh (PW.1) could not tell names of the          B
father of Brahm Swaroop (A.5) as well as of Jagdish Baggar
(A.6) though the same had been mentioned in the FIR lodged
by him. The prosecution did not examine any independent
witness. The reversal of the acquittal of Brahm Swaroop (A.5)
and Jagdish Baggar (A.6) by the High Court is totally                   c
unwarranted and unjustified. Thus, the appeals deserve to be
allowed.

      4. On the contrary, Shri Shail Kumar Dwivedi, learned
Additional Advocate General for the State of U.P., has
vehemently opposed the appeals, contending that the FIR had             D
been lodged promptly; without any loss of time. The incident
occurred at 3.00 P.M. and the FIR had been lodged at 3.20
P.M. on the same day giving the names of all the accused; the
soil containing blood was mentioned in General Diary. The
omission of the names of fathers of Brahm Swaroop (A.5) and             E
Jagdish Baggar (A.6) cannot be fatal to the prosecution case
and it is not necessary that the informant must be aware of all
the contents of the FIR itself. The prosecution examined the
injured witness, who would not spare the real culprits and
involve someone falsely. The deposition of the injured witness          F
has to be given due weightage. The manner in which the inquest
report is made, has to be ignored as law does not require to it
to furnish all the information and it is not necessary to fill up the
names of all the accused. Even if the Special Report reached
the Judicial Magistrate at a belated stage, it would not be fatal       G
to the prosecution case. The prosecution case is duly supported
by the medical evidence and though the eye witnesses were
closely related to the deceased persons, their depositions are
required to be examined with care and caution, but cannot be
ignored. Minor discrepancies in the evidence, cannot adversely          H
    20    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A   affect the prosecution case. Thus, the appeals are liable to be
    dismissed.

        5. We have considered the rival contentions of the parties
    and perused the evidence on record.
8 Legal Issue

    Inquest : Section 174 Cr.P.C.

        6. Undoubtedly, there are five blanks in the inquest report.
C The crime number and names of the accused have not been
  filled up. The column for filling up the penal provisions under
  which offences have been committed is blank. The time of
  incident and time of dispatch of the special re.port have not
  been mentioned. Therefore, Shri Tulsi has submitted that the
D FIR is ante-timed and there is manipulation in the case of the
  prosecution.

         7. The whole purpose of preparing an inquest report under
    Section 174 of the Code of Criminal Procedure, 1973
    (hereinafter referred to as 'Cr.P.C') is to investigate into and
E   draw up a report of the apparent cause of death, describing
    such wounds as may be found on the body of the deceased
    and stating as in what manner, or by what weapon or instrument
    such wounds appear to have been inflicted. For the purpose
    of holding the inquest it is neither necessary nor obligatory on
F   the part of the Investigating Officer to investigate into or
    ascertain who were the persons responsible for the death. The
    object of the proceedings under Section 174 Cr.PC is merely
    to ascertain whether a person died under suspicious
    circumstances or met with an unnatural death and, if so, what
G   was its apparent cause. The question regarding the details of
    how the deceased was assaulted or who assaulted him or
    under what circumstances he was assaulted is foreign to the
    ambit and scope of such proceedings i.e. the inquest report is
    not the statement of any person wherein all the names of the
H   persons accused must be mentioned. Omissions in the
    BRAHM SWAROOP & ANR. v. STATE OF U.P.                      21
            [DR. B.S. CHAUHAN, J.]
inquest report are not sufficient to put the prosecution out of       A
court. The basic purpose of holding an inquest is to report
regarding the apparent cause of death, namely, whether it is
suicidal, homicidal, accidental or by some machinery etc. It is,
therefore, not necessary to enter all the details of the overt acts
in the inquest report. Evidence of eyewitnesses can not be            B
discarded if their names do not figure in the inquest report
prepared at the earliest point of time. The inquest report cannot
be treated as substantive evidence but may be utilised for
contradicting the witnesses of inquest. (See Podda Narayana
& Ors. v. State of Andhra Pradesh, AIR 1975 SC 1252; Khujji           C
v. State of Madhya Pradesh, AIR 1991 SC 1853; George &
Ors. v. State of Kera/a & Anr., (1998) 4 SCC 605; Shaikh Ayub
v. State of Maharashtra, (1998) 9 SCC 521; Suresh Rai v.
State of Bihar, (2000) 4 SCC 84; Amar Singh v. Ba/winder
Singh & Ors., (2003) 2 SCC 518; Radha Mohan Singh alias
Lal Sahab & Ors. v. State of Uttar Pradesh, (2006) 2 SCC 450;         D
and Aqeel Ahmad v. State of Uttar Pradesh, AIR 2009 SC
1271 ).

     8. In Radha Mohan Singh (supra), a three judge bench of
this Court held:                                                      E
    "No argument on the basis of an alleged discrepancy,
    overwriting, omission or contradiction in the inquest report
    can be entertained unless the attention of the author
    thereof is drawn to the said fact and he is given an
                                                                      F
    opportunity to explain when he is examined as a witness
    in court."

                                              (Emphasis added)

    9. Even where, the attention of the author of the inquest is      G
drawn to the alleged discrepancy, overwriting, omission or
contradiction in the inquest report and the author in his
deposition has also admitted that through a mistake he omitted
to mention the crime number in the inquest report, this Court
has held that just because the author of the report had not been      H
    22     SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A diligent did not mean that reliable and clinching evidence
  adduced by the eyewitnesses should be discarded by the
  Court. (Vide: Dr. Krishna Pal & Anr. v. State of Uttar Pradesh,
  (1996) 1 sec 194).

       10. In view of the law referred to hereinabove it cannot be
8
  held that any omission or discrepancy in the inquest is fatal to
  the prosecution's case and such omissions would necessarily
  lead to the inference that FIR is ante-timed. Shri N.K. Sharma
  Sub Inspector (PW.7) had denied the suggestion made by
C defence that till the time of preparing the report the names of
  the accused persons were not available. He further stated that
  the column for filling up the nature of weapons used in the crime
  was left open as it could be ascertained only by the Doctor what
  weapons had been used in the crime. Thus, the submissions
  made in this regard are preposterous.
D
  Delay in sending report to the Magistrate :

       11. Undoubtedly, there is delay of 5 days in sending the
  Special Report. This Court in Badam Singh v. State of M.P.,
E (2003) 12 SCC 792, while considering this issue held that
  where the investigating officer categorically stated that he was
  not in a position to give any explanation for the delay in sending
  the Special Report, it may be fatal to the prosecution's case.

      12. However, a larger Bench of three Judges in Bairam
F Singh & Anr. v. State of Punjab, (2003) 11 SCC 286, held as
  under:
         "10 .....we notice that in reality there is no delay in preparing
         the FIR but there was some delay in transmitting the said
G        information to the Jurisdictional Magistrate. Having been
         satisfied with the fact that the FIR in question was
         registered in the morning of 6-5-1990, we do not think that
         the delay thereafter in communicating it to the Jurisdictional
         Magistrate on the facts of this case, has really given any
         room to doubt that the said document (FIR) was created
H
    BRAHM SWAROOP & ANR. v. STATE OF U.P.                      23
           [DR. B.S. CHAUHAN, J.]
     after much deliberations. At any rate, while considering the    A
     complaint of the appellants in regard to the delay in the FIR
     reaching the Jurisdictional Magistrate, we will have to also
     bear in mind the creditworthiness of the ocular evidence
     adduced by the prosecution and if we find that such ocular
    tevidence is worthy of acceptance, the element of delay in       B
     registering a complaint or sending the same to the
     Jurisdictional Magistrate by itself would not in any manner
     weaken the prosecution case."

     13. In State of Rajasthan v. Teja Singh & Ors., (2001) 3
SCC 147, this Court held that the receipt of special report by       C
the Magistrate is a question of fact and the prosecution may
explain the delay in sending the special report. However, the
explanation so furnished by the prosecution must be convincing
and acceptable. The same view has been re-iterated in
Ramesh Baburao Devaskar & Ors. v. State of Maharashtra,              D
(2007) 13 sec 501.

     14. In Sarvesh Narain Shukla v. Daroga Singh & Ors.,
AIR 2008 SC 320, this Court held that delay in forwarding the
Special Report to the Magistrate could not raise a suspicion         E
that FIR had been written later and was ante-timed. Suspicion
of manipulation of the documents prepa"red during the initial
investigation would not dislodge the documentary and oral
evidence on the spontaneity of the lodging of the FIR.

      15. In Aqeel Ahmad (supra), this Court held that the           F
forwarding of the report to the Magistrate is indispensable and
absolute and it must be sent at the earliest, promptly and without
any undue delay as the purpose is to avoid the possibility of
improvement in the prosecution's case and the introduction of
a distorted version by deliberations and consultation and to         G
enable Magistrate concerned to keep a watch on progress of
investigation. However, no rule of universal application can be
laid down that whenever there is some delay in sending the FIR
to the Magistrate, the prosecution version becomes unreliable.
It would depend upon the facts of each case. If there has been       H
    24    SUPREME COURT REPORTS (2010) 15 (ADDL.) S.C.R.


A some lapse on the part of the Investigating Officer that would
  not affect the credibility of the prosecution's witnesses.

       16. In State of Kera/av. /lnilachandran@ Madhu & Ors.,
  AIR 2009 SC 1866, this Court placed reliance upon its earlier
8 judgments in Pala Singh v. State of Punjab, AIR 1972 SC
  2679; and Sarwan Singh v. State of Punjab, AIR 1976 SC
  2304 and held that the police should not unnecessarily delay
  sending the FIR to the Magistrate as the delay affords the
  opportunity to introduce improvement and embellishment
C thereby resulting in a distorted version of the occurrence.
  However, in case the prosecution offers a satisfactory
  explanation for the delay, the court has to test it. An un-
   explained delay by itself may not be fatal, but it is certainly a
  relevant aspect which can be taken note of while considering
  the role of the accused persons for the offence.
0
        A similar view has been re-iterated in Pandurang
    Chandrakant Mhatre & Ors. v. State of Maharashtra, (2009)
    10 sec 773.

E        17. In Akbar Sheikh & Ors. v. State of WB., (2009) 7 SCC
    415, this Court held cis under:

         "44. Submission of Mr Ghosh that the first information
         report is ante-timed cannot be accepted. It is possible that
         PW 1 because of lapse of time has made certain
F        statements which go beyond the record viz. holding of
         inquest before the FIR was recorded. The number of
         accused persons in the first information report might have
         also been put by the investigating officer at a later point
         of time. The fact that the post-mortem examination had
G        been held on 16-5-1982 itself goes a long way to establish
         the genesis of the occurrence. While saying so, we are not
         unmindful of the fact that the first information report was
         sent to the Magistrate after twenty-four hours. But then, in
         a case of this nature such a delay may not, by itself, be
H        held to be fatal".
    BRAHM SWAROOP & ANR. v. STATE OF U.P.                    25
            [DR. B.S. CHAUHAN, J.]

      18. In the instant case, the defence did not put any question A
in this regard to the investigating officer Raj Guru (PW.10),
thus, no explanation was required to be furnished by him on
this issue. Thus, the prosecution had not been asked to explain
the delay in sending the special report. More so, the submission
made by Shri Tulsi that the FIR was ante-timed cannot be B
accepted in view of the evidence available on record which
goes to show that the FIR had been lodged promptly within 20
minutes of the incident as the Police Station was only 1 k.m.
away from the place of occurrence and names of all the
accused had been mentioned in the FIR. Dr. Nar Singh               c
Bahadur (PW.4) examined Virendra Singh (D.3) on 31st May,
2000 itself at 5.40 p.m. and had noted fire arm injures on his
body and opined that the injuries were fresh in nature. Dr. Anshu
Kumar Agrawal (PW.6) had examined Atar Singh (PW.1) on
31st May, 2000 itself at 3.50 p.m. and had noted multiple pellet D
wounds with surrounding charring over anterior surface of left
thigh middle part and a single pellet wound over the anterior
surface at right arm lower part. Dr. K.K. Saxena (PW.5),
 Radiologist conducted an X-Ray examination of Attar Singh
(PW.1) on 31.5.2000 and found three small rounded radio E
opaque with metallic density and F.B. Shadow on middle of left
thigh and right arm.

      The prompt lodging of the FIR is proved from the chik
report and the statement of the complainant under section 161
Cr.P.C., which was recorded immediately after lodging the FIR.     F
Any defect in the preparation of the inquest report by the
investigating officer cannot lead to an inference that the FIR
was not registered at the alleged time. The FIR contains all the
essential features of the prosecution's case including names
of eye witnesses, time and place of incident, names of the         G
victim, motive, name of the accused persons, weapons in their
hands and manner of assault. Thus, all these things lend a seal
of assurance not only to the presence of eye witnesses at the
place of the incident, but also to the participation of the
appellants in the crime. Cou~51ttach great importance to the       H
    26     SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A   prompt lodging of FIR and prompt interrogation of a witness
    under Section 161 Cr.P.C. as the same substantially eliminates
    the chances of embellishment and concoction creeping into the
    account contained therein.

B        19. It has further been submitted by Shri Tulsi that the place
    of occurrence is not free from doubt as it has been stated by
    the investigating officer, Raj Guru, Inspector, P.S. Bahedi
    (PW .10) that on receiving the phone call at 11.00 A. M.
    purported to have been made from the residence of Natthu
C   Singh @ Raghunath Singh (D.1) that dacoits had attacked
    them he made an entry in the General Diary, and proceeded
    to that place and recorded the statement of some persons
    there. The vehicle in which Rajendra Singh (D.2) and
    Dharampal Singh (D.4) were sitting did not have any blood
    marks and no blood stains were found near the jeep and no
D   pellets had been recovered from the said place. On the
    contrary, Shri Shail Kumar Dwivedi, Addi. Advocate General
    has submitted that cement containing blood stains from the
    counter had been collected and proved. So far as the alleged
    incident at 11.00 A.M. is concerned, the investigating officer,
E   Raj Guru, Inspector, P.S. Bahedi (PW.10) had stated that "this
    was the conspiracy to misguide the police and to drive it out
    of the Kasba."

       20. If we accept the submissions made by Shri Tulsi then
F the question of collecting the blood stained cement from the
  counter of the repairing shop could not arise. Shri Raj Guru 1.0.
  (PW.10) has stated that the tool box was found marked with
  splinters and badly damaged. More so, the statement of Atar
  Singh (PW.1 ), the informant, cannot be ignored as he has
G stated that Virendra Singh (D.3) was bleeding but blood did
  not fall on the ground as Virendra Singh's (0.3) clothes
  absorbed all the blood. He had further stated that Natthu Singh
  @ Raghunath Singh (D.1) was sitting at the counter and there
  was quite a lot of blood from the wounds of Natthu Singh (D.1)
H which fell on the ground and not on the counter. In view of the
    BRAHM SWAROOP & ANR. v. STATE OF U.P.                      27
            [DR. B.S. CHAUHAN, J.]

.above, we do not find any force in the submissions made by          A
 Shri Tulsi in this regard.

      21. Merely because the witnesses were closely related to
the deceased persons, their testimonies cannot be discarded.
Their relationship to one of the parties is not a factor that effects 8
the credibility of a witness, more so, a relation would not conceal
the actual culprit and make allegations against an innocent
person. A party has to lay down a factual foundation and prove
by leading impeccable evidence in respect of its false
implication. However, in such cases, the court has to adopt a C
careful approach and analyse the evidence to find out whether
it is cogent and credible evidence. (Vide: Dalip Singh & Ors.
v. State of Punjab, AIR 1953 SC 364; Masalti v. State of UP.,
AIR 1965 SC 202; Lehna v. State of Haryana, (2002) 3 SCC
76; and Rizan & Anr. v. State of Chhattisgarh Through The
Chief Secretary, Government of Chhatisgarh, Raipur, D
Chhatisgarh, (2003) 2 SCC 661).

     Injured witness Attar Singh (PW.1) has been examined, his
testimony cannot be discarded, as his presence on the spot
cannot be doubted, particularly, in view of the fact that            E
immediately after lodging of FIR, the injured witness had been
medically examined without any loss of time on the same day.
The injured witness had been put through a grueling cross-
examination but nothing can be elicited to discredit his
testimony.                                                           F

     22. Where a witness to the occurrence has himself been
injured in the incident, the testimony of such a witness is
generally considered to be very reliable, as he is a witness that
comes with a built-in guarantee of his presence at the scene
of the crime and is unlikely to spare his actual assailant(s) in     G
order to falsely implicate someone. "Convincing evidence is
required to discredit an injured witness". (Vide: State of UP.
v. Kishan Chand & Ors., (2004) 7 SCC 629; Krishan & Ors. v.
State of Haryana, (2006) 12 SCC 459; Dinesh Kumar v. State
of Rajasthan, (2008) 8 SCC 270; Jarnai/ Singh & Ors. v. State        H
    28    SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.


A   of Punjab, (2009) 9 SCC 719; Vishnu & Ors. v. State of
    Rajasthan, (2009) 10 SCC 477; Anna Reddy Sambasiva
    Reddy & Ors. v. State of Andhra Pradesh, AIR 2009 SC 2661;
    and Balraje @ Trimbak v. State of Maharashtra, (2010) 6
    sec 673).
B
       23. In such a fact-situation though Natthu Singh @
  Raghunath Singh (D.1) was history-sheeter and Rajendra Singh
  (D.2) and Dharampal Singh (D.4) had criminal cases against
  them and they had large number of enemies, it cannot be
C inferred that somebody else had killed them.

    Discrepancies and inconsistencies in depositions of
    witnesses:

        24. It has been submitted by learned Senior counsel for
o the appellants that there is a contradiction between the medical
  and ocular evidence. From the post mortem report of Virendra
  Singh (D.3) (Ext.Ka-8), it is evident that his body was having
  contusions; the post mortem report of Rajendra Singh (D.2)
  (Ext.Ka-9) reveals that he was having abrasions; and the post
E mortem report of Nathu Singh (D.1) (Ext.Ka-10) also reveal
  several abrasions. The High Court has given cogent reasons
  explaining these discrepancies by saying that at the time of
  firing, the deceased must have reacted to the assault and might
  have received some abrasions and contusions in order to save
F themselves. Rajendra Singh (PW.2) has stated that he
  remained at the place of occurrence till 7 p.m. and he denied
  his signatures. The High Court has furnished a cogent
  explanation for such contradiction, and held that his statement
  had been recorded after 3 years of the incident and thus, such
  infirmity is bound to occur but does not affect the credibility of
G the witnesses.

        25. It is a settled legal proposition that while appreciating
    the evidence of a witness, minor discrepancies on trivial
    matters, which do not affect the core of the prosecution's case,
H   may not prompt the Court to reject the evidence in its entirety.
    BRAHM SWAROOP & ANR. v. STATE OF U.P.                     29
            [DR. S.S. CHAUHAN, J.]
"Irrelevant details which do not in any way corrode the A
credibility of a witness cannot be labelled as omissions or
contradictions." Difference in some minor detail, which does not
otherwise affect the core of the prosecution case, even if
present, would not itself prompt the court to reject the evidence
on minor variations and discrepancies. After exercising care B
and caution and sifting through the evidence to separate truth
from untruth, exaggeration and improvements, the court comes
to a conclusion as to whether the residuary evidence is sufficient
to convict the accused. Thus, an undue importance should not
be attached to omissions, contradictions and discrepancies c
which do not go to the heart of the matter and shake the basic
version of the prosecution witness. As the mental capabilities
of a human being cannot be expected to be attuned to absorb
all the details, minor discrepancies are bound to occur in the
statements of witnesses. (See: State of UP. v. MK. Anthony, 0
AIR 1985 SC 48; and State of Rajasthan v. Om Prakash, AIR
2007 SC 2257; State v. Saravanan & Anr., AIR 2009 SC 152;
and Prithu @ Prithi Chand & Anr. v. State of Himachal
Pradesh, (2009) 11 SCC 588).

Appeal against Acquittal :                                          E

     26. It is well established in law that the appellate court
should not ordinarily set aside a judgment of acquittal in a case
where two views are possible, though the view of the appellate
court may be more, the probable one. While dealing with a F
judgment of acquittal, the appellate court must consider the
entire evidence on record, so as to arrive at a finding as to
whether the views of the trial Court were perverse or otherwise
unsustainable. The appellate court is entitled to consider
whether in arriving at a finding of fact, the trial Court had failed G
to take into consideration any admissible evidence and/or had
taken into consideration evidence brought on record contrary
to law. Similarly, the incorrect placing of the burden of proof may
also be a subject matter of scrutiny by the appellate court. The
court of appeal may not interfere where two views are possible H
    30     SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A   for the reason that in such a case it can be held that
    prosecution failed to prove the case beyond reasonable doubt
    and accused is entitled for benefit of doubt. (Vide: Balak Ram
    & Anr. v. State of UP., AIR 1974 SC 2165; Al/arakha K
    Mansuri v. State of Gujarat, (2002) 3 SCC 57; Raghunath v.
8   State of Haryana, (2003) 1 SCC 398; State of UP. v. Ram
    Veer Singh & Ors., AIR 2007 SC 3075; S. Rama Krishna v.
    S. Rami Reddy (D) by his LRs. & Ors., AIR 2008 SC 2066;
    Sambhaji Hindurao Deshmukh & Ors. v. State of
    Maharashtra, (2008) 11 SCC 186; Arulvelu & Anr. v. State,
c   (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v.
    State of A.P., (2009) 16 SCC 98; and Ram Singh alias Chhaju
    v. State of Himachal Pradesh, (2010) 2 SCC 445).

        27. In Shea Swaroop and Ors. v. King Emperor, AIR 1934
    PC 227, the Privy Council held as under:
D
         "... the High Court should and will always give proper weight
         and consideration to such matters as (1) the views of the
         trial Judge as to the credibility of the witnesses, (2) the
         presumption of innocence in favour of the accused, a
E        presumption certainly not weakened by the fact that he has
         been acquitted at his trial, (3) the right of the accused to
         the benefit of any doubt, and (4) the slowness of an
         appellate court in disturbing a finding of fact arrived at by
         a Judge who had the advantage of seeing the
F        witnesses .... "

        28. In Chandrappa and Ors. v. State of Karnataka, (2007)
    4 SCC 415, this Court observed as under:

         "(1) An appellate court has full power to review, re-
G        appreciate and reconsider the evidence upon which the
         order of acquittal is founded.

         (2) The Code of Criminal Procedure, 1973 puts no
         limitation, restriction or condition on exercise of such power
H        and an appellate court on the evidence before it may reach
    BRAHM SWAROOP & ANR. v. STATE OF U.P.                      31
           [DR. B.S. CHAUHAN, J.]
     its own conclusion, both on questions of fact and of law.        A

     (3) Various expressions, such as, "substantial and
     compelling reasons", "good and sufficient grounds", "very
     strong circumstances", "distorted conclusions", "glaring
     mistakes", etc. are not intended to curtail extensive powers
                                                                    8
     of an appellate court in an appeal against acquittal. Such >
     phraseologies are more in the nature of "flourishes of
     language" to emphasise the reluctance of an appellate
     court to interfere with acquittal than to curtail the power of
     the court to review the evidence and to come to its own
     conclusion.
                                                                      c
     (4) An appellate court, however, must bear in mind that in
     case of acquittal, there is double presumption in favour of
     the accused. Firstly, the presumption of innocence is
     available to him under the fundamental principle of criminal D
     jurisprudence that every person shall be presumed to be
     innocent unless he is proved guilty by a competent court
     of law. Secondly, the accused having secured his acquittal,
     the presumption of his innocence is further reinforced,
     reaffirmed and strengthened by the trial court.              E

     (5) If two reasonable conclusions are possible on the basis
     of the evidence on record, the appellate court should not
     disturb the finding of acquittal recorded by the trial court."

     29. In State of Uttar Pradesh v. Banne@ Baijnath & Ors.,         F
(2009) 4 SCC 271, this Court gave illustrations of certain
circumstances in which the Court would be justified in interfering
with a judgment of acquittal by the High Court. The
circumstances include:
                                                                      G
    (i) The High Court's decision is based on totally erroneous
    view of law by ignoring the settled legal position;

    (ii) The High Court's conclusions are contrary to evidence
    and documents on record;
                                                                      H
    32    SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.


A        (iii) The entire approach of the High Court in dealing with
         the evidence was patently illegal leading to grave
         miscarriage of justice;

         (iv) The High Court's judgment is manifestly unjust and
B        unreasonable based on erroneous law and facts on the
         record of the case;

         (v) This Court must always give proper weight and
         consideration to the findings of the High Court;

C        (Vi) This Court would be extremely reluctant in interfering
         With a case when both the Sessions Court and the High
         Court have recorded an order of acquittal.

          30. Thus, the law on the issue can be summarised to the
    effect that in exceptional cases where there are compelling
0
    circumstances, and the judgment under appeal is found to be
    perverse, the appellate court can interfere with the order of
    acquittal. The appellate court should bear in mind the
    presumption of innocence of the accused and further that the
E   trial Court's acquittal bolsters the presumption of his innocence.
    Interference with the decision of the trial court in a routine
    manner, where the other view is possible should be avoided,
    unless there are good reasons for such interference.

       31. The trial Court had acquitted two accused persons,
F namely, Brahm Swaroop (A.5) and Jagdish Baggar (A.6)
  mainly on the grounds that Attar Singh (PW.1) did not tell the
  names of their respective fathers though it has so been
  mentioned in the FIR. Secondly, the prosecution could not
  explain how could the gun of Gyanendra be recovered from
G Brahm Swaroop (A.5) if it was taken away by Jagdish Baggar
  (A.6) and third ground had been that on 3.6.2000 a gun was
  recovered on the pointing out of Brahm Swaroop and he had
  admitted that he had used the gun in the crime. The said gun
  was sent for ballistic expert and the report (Ext.Ka-28) shows
H
    BRAHM SWAROOP & ANR. v. STATE OF U.P.                       33
            [DR. B.S. CHAUHAN, J.]

that the barrel of the gun did not have any residue and it had        A
not been used recently.

     32. So far as the first issue is concerned, the names of
the father of two persons accused could not be given by Atar
Singh, informant, (PW.1) in the court, though mentioned in the
                                                                      8
FIR. The question does arise as to whether, it is fatal to the case
of the prosecution. In Sone Lal & Ors. v. State of UP., AIR 1978
SC 1142, this Court while dealing with the issue held:

     " ..... .informant was not aware of some of the contents of
    the FIR itself. ........ If the accused had any reason to think   C
    otherwise it was permissible for him to cross-examine the
    witness concerned and to lay the foundation for his own
    version. Lastly, it was suggested by the Sessions Judge
    that although the parentage of the accused Dularey was
    not mentioned in the FIR yet it was mentioned in the              D
    general diary which shows that the FIR was prepared
    subsequently. The High Court has clearly pointed out
    that it was fully explained that due to inadvertence the
    parentage of Dularey was not mentioned in the FIR but
    after being ascertained from the informant it was                 E
    mentioned in the general diary. In these circumstances,
    therefore, the omission, if any, does not appear to be of
    any significance. These were the main reasons given by
    the Sessions Judge for disbelieving the FIR and, in our
    opinion, the High Court was right in pointing out that the        F
    reasons given by the Sessions Judge were both unsound
    and untenable."

    33. In the case of Rotash v. State of Rajasthan, (2006)
12 SCC 64, this Court held:
                                                                      G
    " ........ The question is as to whether a person was
    implicated by way of an afterthought or not must be judged
    having regard to the entire factual scenario obtaining in the
    case. PW.6 received as many as four injuries .... "
                                                                      H
    34    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A   Thus, in the fact-situation of the present case, this factor alone
    could not discount their involvement in the crime. More so, it
    is evident from the record that there was no suggestion to Atar
    Singh (PW.1) that the names of the fathers of the two accused
    persons were mentioned at the instance of some other
B   persons. He had not been asked as how the name of their
    father had been mentioned in the FIR. Such an inference could
    not have been drawn by the trial Court without giving an
    opportunity of explanation to Atar Singh (PW.1 ).

C        34. On 3.6.2000, a gun was recovered on its being pointed
    out by appellant Brahm Swaroop and he stated that he had
    used the said gun in the commission of the crime. However,
    the FSL report suggested that the gun had not been fired
    recently and from this the trial court concluded that the report
    did not corroborate the usage of the said gun in the crime and
D   was a major flaw in the prosecution's case. The High Court held
    that this inference of the trial court was perverse. The case of
    the prosecution had all along been that Brahm Swarup was
    armed with a DBBL gun (which is a different type of gun from
    the said gun), and the said gun was not mentioned either in
E   the FIR or in the testimonies of any of the prosecution
    witnesses. It was the statement of Brahm Swaroop that he had
    used the said gun in the crime. Further, this statement was
    inadmissible as Brahm Swaroop had made the statement to
    a police officer while he was in custody.
F
         35. As far as the question of the other gun, which Jagdish
    Baggar took from Gyanendra and its recovery from Brahm
    Swaroop is concerned, both the Trial Court and the High Court
    disbelieved the recovery. However, the High Court took the view
G   that no benefit can be given to the accused persons on the
    ground that the recovery of the said gun was not worth to be
    believed. Even in the absence of the proper recovery of the
    said gun, there was enough evidence to prove beyond
    reasonable doubt, the guilt of the accused. The High Court took
H   the view that in light of the fact that the eyewitness accounts
    BRAHM SWAROOP & ANR. v. STATE OF U.P.                    35
            [DR. B.S. CHAUHAN, J.]

and the medical evidence were in harmony with each other and       A
clearly established the guilt of Brahm Swaroop and Jagdish
Baggar, the decision of the Trial Court to acquit them could not
be in consonance with the evidence available on record and
thus, perverse. Thus, no fault can be found with the findings so
recorded by the High Court in reversing their acquittal.           B

    . 36. We also do not find any force in the submissions made
on behalf of the appellants that there could be no recovery of
weapons on 3.6.2000 when the statement of Jagdish Baggar
(A.6) was recorded firstly on 7.6.2000 in the District Jail, for
the reason that Shri N.K. Sharma, Sub-Inspector (PW.7) has         C
stated that Balwant (A.2) and Brahm Swaroop (A.5) were
arrested on 3.6.2000 and they were having the gun with them.
Balwant (A.2) himself brought one Rifle out of gathered hay and
therefore, the statement of N.K. Sharma (PW.7) cannot be
brushed aside as he has referred to the butt of the gun which      D
was broken and the chap of which had fallen down.

    37. We have, ourselves appreciated the evidence and
reached conclusions similar to the High Court:

    (i) If the evidence of the eye-witnesses is trustworthy and    E
    believed by the court, the question of motive becomes
    totally irrelevant.

    (ii) Merely because the witnesses were close relatives to
    the deceased, that cannot be a ground to discard their         F
    evidence.

    (iii) Prosecution examined an injured witness. His
    presence on the spot cannot be doubted and his
    deposition is to be given due weightage.
                                                                   G
    (iv) In the facts and circumstances of the case there was
    no conflict between the direct evidence and medical
    evidence. Even if deceased were having some minor
    abrasions and contusions for the reason that they might
                                                                   H
    36    SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A        have reacted to the assault and tried to save themselves,
         cannot create a doubt in the prosecution case about the
         presence of the witnesses.

         (v) The eye witnesses have been cross-examined
         thoroughly, but nothing useful to the accused could be
B
         elicited from them. The testimony of the eye witnesses is
         credible and worthy of confidence.

         (vi) The acquittal of Brahm Swaroop (A.5) and Jagdish
         Baggar (A.6) by the trial court cannot be held to be based
c        on cogent reasons. The High court has rightly reversed
         their acquittals for offences under sections 302/34 and
         307/34 IPC, but has rightly upheld their acquittal under
         Section 25 of the Arms Act.

          38. In view of the above, we do not find any cogent reasons
0
    to interfere with the impugned judgment and order of the High
    Court. The appeals lack merit and, are accordingly, dismissed.

    K.K.T.                                     Appeals dismissed.