DHARAMVEER AND ORS.versusSTATE OF U.P.

                        [2010] 3 S.C.R. 162


A                    DHARAMVEER AND ORS.
                                 v.
                          STATE OF U.P.
                (Criminal Appeal No. 1348 of 2004)
                         MARCH 09, 2010
B
           fHARJIT SINGH BEDI, C.K. PRASAD, JJ.]

          Penal Code, 1860 - ss.148, 3021149 and 3071149 -
     Prosecution under - Eye-witnesses to the incident -
c    Conviction by courts below - On appeal, held: Conviction
    justified - Delay in despatch of the FIR, enmity between the
    parties and non-examination of one of the witnesses are not
     fatal to prosecution case.
       Constitution of India, 1950 - Article 136 - Jurisdiction
D under - Scope of - Power under Article 136 is very wide -
  Supreme Cqurt can re-appraise the evidence and set aside
  concurrent fi.nding of fact - However, appreciation of evidence
  is resorted to, in exceptional circumstances - Where the High
  Court has analysed the evidence in great detail and found the
E evidence reliable, there is no scope for interference.
       Appellants-accused were prosecuted for having
  killed two persons. Trial court, relying on the evidence of
  Medical Officer, the post-mortem reports, and the
F evidence of PW.1 and PW.2 (the eye-witnesses), held that
  the prosecution has been able to prove its ~ase beyond
  all reasonable doubt and accordingly co'nvicted the.
  accused for offence ulss.148, 3021149 and 307/149 IPC.
  The conviction order was confrmed by the High Court.
  Hence, the present appeal.
G
              Dismissing the appeal, the Court
      HELD: 1. Power under Article 136 of the Constitution
  is very wide and nothing prevents Supreme Court to re-
  appraise the evidence and set aside concurrent finding
H                           162
    DHARAMVEER AND ORS. v. STATE OF U.P.                163


of fact holding the accused guilty. However, appreciation      A
of evidence is resorted to, in exceptional circumstances
when it comes to the conclusion that the finding of guilt
recorded by the High Court is perverse, meaning thereby
the High Court had recorded the finding without
consideration of relevant material or consideration of         B
irrelevant material, the consideration or non-
consideration whereof shall have bearing on the finding
recorded. The finding can also be considered perverse,
if a person duly instructed in law will not come to that
finding. Supreme Court may also interfere with the finding     c
of fact when it finds violation of established procedure
going to the root of the case. Where the High Court has
analysed the evidence in great detail and found the
evidence reliable there is no scope for interference by this
Court. [Para 9) [168-G-H; 169-A-C]                             o
    Ganga Kumar Srivastava vs. State of Bihar (2005) 6
sec 211, relied on.
    Ramanbhai Naranbhai Patel and Ors. vs. State of
Gujarat (2000) 1 SCC 358, referred to.
                                                               E
      2.1. The case of the prosecution cannot be rejected
merely on the ground that there was delay in despatch
of the First Information Report. There does not seem any
delay in lodging the First Information Report. Not only
this, after the First Information Report was lodged, F
investigation proceeded, the statement of the witnesses
recorded, the inquest report prepared and the dead
bodies sent for post-mortem examination without delay.
It is also on record that the Special Report was sent by
post. In the background of the aforesaid facts, mere delay G
in receipt of the Special Report, in no way causes doubt
to the case of the prosecution. Furthermore, none of the
witnesses including the investigating officer of the case
have been cross-examined on this point. [Para 13} [171-
H; 172-A-D]
                                                           H
     164      SUPREME COURT REPORTS            [2010] 3 S.C.R.


A         UNK. Meharaj Singh vs. State of Uttar Pradesh JT 1994
     (3) SC 440; Pala Singh and Anr. vs. State of Punjab 1972
     (2) sec 640, referred to.
      2.2. The evidence of an eye-witness cannot be
  rejected only on the ground that enmity exists between
8 the parties. [Para 15] [173-A]

       2.3. True it is that 'R' could have been an important
  witness to unfold the true story but his non-examination
  itself is not sufficient to discard the case of the
c prosecution. It has come in evidence of PW.1 that later
  on prosecution suspected that he was accomplice in the
  crime. Hence, his non-examination has been explained.
  Not only this, the evidence of the two eye-witnesses, with
  minor contradictions has withstood the test of cross-
D examination and therefore the case of the prosecution is
  not fit to be thrown out on these grounds. [Para 16] [173-
  D-E]
         2.4 Why the appellants did not cause any injury to
     the witnesses cannot be explained by the prosecution.
· E It will require entering into their mind. Human behaviour
     are -sometimes strange. Merely the fact that these
     witnesses did not suffer any injury, will not make their
     evidence untrustworthy. This aspect of the matter has
     been considered by the High Court in right perspective.
  F 1[Para 18] [173-G-H; 174-A]
                         Case Law Reference:
           c2oos) s sec 211      Relied on           Para 7
           (2QOO) 1 sec 358      Referred to         Para 8
G'
           JT 1994 (3) SC 440    Referred to         Para 11
           1912 (2) sec 640      Referred to         Para 12
       CRIMINAL APPELLATE JURISDICTION : Criminal No.
H 1348 of 2004.
     DHARAMVEER AND ORS. v. STATE OF U.P.                      165


    From the Judgment & Order dated 1.7.2003 of the High              A
Court of Judicature at Allahabad in Criminal Appeal No. 3083
of 2001.

     J.C. Gupta, Ajit Kumar Gupta, Mridula Ray Bharadwaj for
the Appellant.                                                        B

    Ratnakar Dass, T.N. Singh, Rajiv Dubey and Kamlendra
Mishra for the Respondent.

     The Judgment of the Court was delivered by

      C.K. PRASAD, J. 1. This appeal by way of special leave
                                                                      c
filed under Article 136 of the Constitution of India is against the
judgment dated 1st July, 2003, of the Allahabad High Court in
Criminal Appeal No. 3083 of 2001 whereby it had affirmed the
judgment and order of conviction and sentence of the appellants       D
passed by the Special Judge, Bullandshahar in Sessions Trial
No.154 of 1998.

     2. The appellants Dharamveer, Sanjay, Vedi and Vinod
besides other accused persons were put on trial for offence
under Sections 148, 302/149 and 307/149 of the Indian Penal           E
Code. The Trial Court convicted all the appellants under
Sections 148 and 302/149 of the Indian Penal Code and
sentenced them to undergo rigorous imprisonment for one year
and life respectively. They were further convicted under
Sections 307/149 of the Indian Penal Code and sentenced to            F
undergo rigorous imprisonment for 10 years. Sentences were
directed to run concurrently. On an appeal the High Court
dismissed the same.

     3. Prosecution commenced on the basis of report given
by PW .1 Jaipal Singh on 10/10/1997 to the In-charge out-post         G
at Khurja junction within Khurja Police Station. According to the
prosecution on 10th October, 1997 at 4 P.M. the informant
PW.1, Jaipal Singh along with his nephew Sheodan (deceased)
brother Jagdish(deceaseJ) besides other persons including
Shiv Charan (PW2) had gone from their village Ramgarhi to             H
    166      SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A village Auranga to participate in a Panchayat convened to settle
  the dispute between Prakash and his son. According to the
  informant on way back, the two deceased and Ravi Kiran were
  30 to 35 steps ahead of them and after they had crossed the
  grove of Ravi Kiran, appellants herein armed with country-made
s pistols came out of millet field of Shreepal and started firing
  on the two deceased and Ravi Kiran. According to the
  prosecution Jagdish ran towards Ramgarhi and Sheodan
  towards Auranga and these appellants cnased Jagdish and
  killed him whereas Sanjay, Sheesh Pal and Neetu (since
c acquitted) followed Sheodan and caused firearm injury causing
  his death in the field of Balwant.

            4. On the basis of the aforesaid information Crime No.21/
        118/97 under Section 147, 148, 149, 307 and 302 Indian Penal
       Code was registered at 8.20 P.M. at Khurja Police Station.
D After usual investigation Police submitted charge-sheet against
       the appellants and ultimately they were committed to Court of
       Sessions where they were charged for commission of offence
       under Section 148, 302/149 and 307/149 of the Indian Penal
       Code. Appellants denied to have committed the offence and
E claimed to be tried. In order to bring home the charge,
       prosecution, altogether examined seven witnesses, out of which
       PW.1 Jaipal Singh and PW.2 Shivcharan are the eye-
       witnesses to the occurrence. PW.3, Dr.P.P. Singh is a Medical
       Officer who had examined Ravi Kiran and found lacerated
F wound on his person caused by blunt object. PW.4, Dr.S.K.
       Sharma is another Medical Officer, who had conducted post
       mortem examination on the dead bodies of Jagdish and
       Sheodan and found ante-mortem gun shot injuries on their
 .,,., person. In his opinion both the deceased died of shock and
G haemorrhage as a result of gun shot injuries. PW.5, Ashok
       Kumar is a Constable who took the dead bodies to mortuary
       for post mortem examination. PW.6, Madan Mohan is Sub-
       Inspector of Police, who after investigation submitted the
       charge-sheet against the appellants. PW.7, Ram Naresh Yadav
H is lncharge Police outpost, who proved theq check-reports.
     DHARAMVEER AND ORS. v. STATE OF U.P.                     167
              [C.K. PRASAD, J.]
     5. Besides oral evidence several documents including first       A
information report and post mortem reports were also brought
on record.

     6. Relying on the evidence of Medical Officer and the post
mortem reports, the trial court came to the conclusion that the
                                                                      8
two deceased met homicidal deaths. Further, relying on the
evidence of PW.1 and PW.2, the trial court held that the
prosecution has been able to prove its case beyond all
reasonable doubt and accordingly convicted and sentenced the
appellants as above. This has been affirmed by the High Court         C
in appeal.

      7. Before we advert to the submissions advanced, it is
expedient to examine the scope of the power under Article 136
of the Constitution, while hearing appeal against the judgment
of conviction and sentence. Mr. J.C. Gupta, learned Senior            D
Counsel appearing on behalf of the appellants submits that
powers under Article 136 of the Constitution is very wide and
nothing prevents this Court to upset the concurrent findings of
guilt. In support of the submission reliance has been placed on
a decision of this Court in the case of Ganga Kumar Srivastava        E
vs. State of Bihar (2005) 6 SCC 211 wherein it has been held
as follows:

    "10. 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              F
    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 the      G
    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.
                                                                      H
    168       SUPREME COURT REPORTS                    [2010) 3 S.C.R.


A         (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
B
          short of the test of reliability and acceptability and as such
          it is highly unsafe to act upon it. And

          (v) The appreciation of evidence and finding is vitiated by
          any error of law of procedure or found contrary to the
c         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. (underlining is ours)"

0      8. Mr. Ratnakar Dass, learned Senior Counsel, appearing
  on behalf of the State, however, submits that this Court in
  exercise of the powers under Article 136 of the Constitution of
  India cannot act as a Court of Appeal and upset the concurrent
  findings of fact recorded by the Trial Court and the Appellate
E Court. Reliance has been placed on a decision of this Court in
    Ramanbhai Naranbhai Patel and Ors. vs. State of Gujarat
    (2000) 1 sec 358 in which it has been held as follows:

                "10.ln view of the aforesaid settled legal position,
          therefore, we have to see whether the findings of fact
F         reached by the High Court agreeing with the appreciation
          of evidence by the Sessions Court suffer from any patent
          error of law or have resulted in miscarriage of justice which
          can call for our interference in this appeal."

G      9. We do not have the slightest hesitation in accepting the
  broad submission of Mr. Gupta that power under Article 136
  of the Constitution is very wide and nothing prevents this Court
  to reappraise the evidence and set aside concurrent finding of
  fact holding the accused guilty. However, appreciation of
H evidence is resorted to, in exceptional circumstances when it
     DHARAMVEER AND ORS. v. STATE OF U.P.                     169
              [C.K. PRASAD, J.]
comes to the conclusion that the finding of guilt recorded by the    A
High Court is perverse, meaning thereby the High Court had
recorded the finding without consideration of relevant material
or consideration of irrelevant material, the consideration or non-
consideration whereof shall have bearing on the finding
recorded. The finding can also be considered perverse, if a          B
person duly instructed in law will not come to that finding. This
Court may also interfere with the finding of fact when it finds
violation of established procedure going to the root of the case.
Where the High Court has analysed the evidence in great detail
and found the evidence reliable there is no scope for                c
interference by this Court .

    . 10. Bearing in mind the principles aforesaid we proceed
to examine the submissions unfolded.

      11. Mr. Gupta submits that there is inordinate delay in        D
receipt of the Special Report by the Magistrate. He points out
that the occurrence had taken place on 10th October, 1997 at
4 P.M.; and the First Information Report was registered at 8
P.M., the Special Report under Section 157 of the Code of
Criminal Procedure was received on 17th October, 1997. This          E
inordinate delay in receipt of the report, according to Mr. Gupta,
is sufficient to reject the case of the prosecution. In support of
the submission reliance has been placed on a judgment of this
Court in the case of UNK. Meharaj Singh vs. State of Uttar
Pradesh JT 1994 (3) SC 440 and our attention has been drawn          F
to paragraph 12:

    "12. FIR in a criminal case and particularly in a murder
    case is a vital and valuable piece of evidence for the
    purpose of appreciating the evidence led at the trial. The
    object of insisting upon prompt lodging of the FIR is to         G
    obtain the earliest information regarding the circumstance
    in which the crime was committed, including the names of
    the actual culprits and the parts played by them, the
    weapons, if any, used, as also the names of the eye
    witnesses, if any. Delay in lodging the FIR often results in     H
    170       SUPREME COURT REPORTS                    [2010] 3 S.C.R.


A         embellishment, which is a creature of an after thought. On
          account of delay, the FIR not only gets bereft of the
          advantage of sponfaneity, danger also creeps in of the
          introduction of a coloured version or exaggerated story.
          With a view to determine whether the FIR was lodged at
8         the time it is alleged to have been recorded, the courts
          generally look for certain external checks. One of the
          checks is the receipt of the copy of the Fl R, called a special
          report in a murder case, by the local Magistrate. If this
          report is received by the Magistrate late it can give rise to
c         an inference that the FIR was not lodged at the time it is
          alleged to have been recorded, unless, of course the
          prosecution can offer a satisfactory explanation for the
          delay in despatching or receipt of the copy of the FIR by
          the local Magistrate. Prosecution has led no evidence a.t
          all in this behalf. The second external check equally
D
          important is the sending of the copy of the FIR along with
          the dead body and its reference in the inquest report. Even
          though the inquest report, prepared under Section 174
          Cr.P.C. is aimed at serving a statutory function, to lend
          credence to the prosecution case, the details of the FIR
E         and the gist of statements recorded during inquest
          proceedings get reflected in the report. The absence of
          those details is indicative of the fact that the prosecution
          story was still in embryo and pad not been given any shape
          and that the FIR came to be recorded later on after due
F         deliberations and consultations and was then ante timed
          to give it the colour of a promptly lodged FIR. In our
          opinion, on account of the infirmities as noticed above, the
          FIR has lost its value and authenticity and.it appears to us
          that the same has been ante timed and had not been
G         recorded till the inquest proceedings were over at the spot
          by PW.8."

       12. Mr. Dass, submits that mere delay in despatch of the
  FIR itself is not fatal to the case of the prosecution. He points
H out that the First Information Report was lodged immediately
         DHARAMVEER AND ORS. v. STATE OF U.P.                     171
                  [C.K. PRASAD, J.]
    and in fact the investigation started soon thereafter and even       A
:~ the dead body was sent for post-mortem examination within a
    reasonable time. Hence in his submission mere delay in
    despatch of the FIR is of no consequence. Reliance has been
    placed on a decision of this Court in the case of Pala Singh &
    Anr. vs. State of Punjab 1972 (2) SCC 640 and our attention          B
    drawn to paragraph 8 of the judgment which reads as follows:

                "8. Shri Kohli strongly criticised the fact that the
          occurrence report contemplated by Section 157 Cr.P.C.
          was sent to the Magistrate concerned very late. Indeed, this
          challenge, like the argument of interpolation and belated      C
          despatch of the inquest report, was developed for the
          purpose of showing that the investigation was not just, fair
          and forthright and, therefore, the prosecution case must be
          looked at with great suspicion. This argument is also
          unacceptable. No doubt, the report reached the magistrate      D
          at about 6 p.m. Section 157 Cr.P.C. requires such report
          to be sent forthwith by the police officer concerned to a
          magistrate empowered to take cognizance of such
          offence. This is really designed to keep the magistrate
          informed of the investigation of such cognizable offence       E
         so as to be able to control the investigation and if
         necessary to give appropriate direction under Section 159.
          But when we find in this case that the FIR was actually
         recorded without delay and the investigation started on the
         basis of that FIR and there is no other infirmity brought to    F
         our notice, then, however improper or objectionable the
         delayed receipt of the report by the magistrate concerned
         it cannot by itself justify the conclusion that the
         investigation was tainted and the prose·cution
         insupportable. It is not the appellant's case that they have    G
         been prejudiced by this delay."

     13. Having given our thoughtful consideration to the
 submissions advanced, we do not find any substance in the
 submission of Mr.Gupta. Information in regard to the incident
                                                                         H


~   ..
    172    SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A was given immediately after the occurrence and the First
  Information Report was lodged on the same day at 8.20 p.m.
  The occurrence had taken place at about 4.00 p.m. on 10/10/
  1997 and therefore there does not seem any delay in lodging
  the First Information Report. Not only this, after the First
B Information Report was lodged, investigation proceeded, the
  statement of the witnesses recorded, the inquest report
  prepared and the dead bodies sent for post-mortem
  examination without delay. It is also on record that the Special
  Report was sent by post. In the background of the aforesaid
c facts, mere delay in receipt of the Special Report, in no way
  causes doubt to the case of the prosecution. Furthermore, none
  of the witnesses including the investigating officer of the case
  have been cross-examined on this point. Therefore, we are not
  inclined to reject the case of the prosecution merely on the
  ground that there was delay in despatch of the First Information
0
  Report.

        1"TMr. Gupta, then submits that the entire prosecution
  case is dependent upon the evidence of PW .1 Jaipal Singh
  and PW .2 Shiv Charan and they being inimical to the
E appellants, their evidence deserve to be rejected and once it
  is done so, there is no evidence on record to connect the
  appellants with the crime. He points out there is overwhelming
  evidence on record to show old enmity between the prosecution
  witnesses and the appellants. Both the witnesses are not the
F residents of the village, where the occurrence had taken place
  and further the witnesses having no land near the place of
  occurrence their presence at the scene of occurrence is highly
  doubtful. Mr. Gupta emphasises that in order to show their
  presence at the place of occurrence, the story of Panchayat at
G village Auranga was cooked up. Non- examination of Ravi
  Kiran, as witness has also been highlighted. It has been
  contended that in order to conceal the truth this witness, who
  is the most competent witness, has been withheld by the
  prosecution.
H
     DHARAMVEER AND ORS. v. STATE OF U.P.                     173
              [C.K. PRASAD, J.]
      15. All these submissions are in the realm of appreciation     A
of evidence and the High Court has meticulously examined it.
The evidence of an eye witness can not be rejected only on the
ground that enmity exists between the parties. The High Court
in this connection has observed as follows :
                                                                     B
     "In view of extreme strained relations between the two
     sides, no independent witness could dare to depose in
     favour of the prosecution risking his own life. Two
     eyewitnesses P.W.1 Jaipal Singh and P.W.2 Shiv Charan
     cannot be disbelieved merely because of being related           C
     with the deceased, especially in the circumstances
     narrated above."

     16. True it is that Ravi Kiran could have been an important
witness to unfold the true story but his non-examination, in our
opinion, itself is not sufficient to discard the case of the         D
prosecution. It has come in evidence of PW.1 Jaipal that later
on prosecution suspected that he was accomplice in the crime.
Hence his non-examination has been explained. Not only this,
the evidence of the two eye-witnesses, with minor contradictions
here and there h~s withstood the test of cross-examination and       E
therefore the case of the prosecution is not fit to be thrown out
on these grounds.

     17. Mr. Gupta submits that the two eye-witnesses namely
PW.1 Jaipal Singh and PW.2 Shiv Charan were highly inimical
                                                                     F
to the accused persons and according to the prosecution itself
both had come at a hand-shaking distance, they would not have
been left unharmed and hence their claim to be the eye-
witnesses to the incident is highly doubtful.

      18. We do not find any substance in this submission of Mr.     G
Gupta. Why the appellants did not cause any injury to these
witnesses can not be explained by the prosecution. It will require
entering into their mind. Human behaviour are sometime·s
strange. Merely the fact that these witnesses did not suffer any
injury, will not make their evidence untrustworthy. This aspect      H
    174       SUPREME COURT REPORTS                      [2010] 3 S.C.R.


A   of the matter has been considered by the High Court in right
    perspective and it has held as follows:-

           "The statements of the witnesses show that Sheodan, Ravi
           Kiran and Jagdish were 30 or 35 steps ahead of other
          witnesses. On coming out of the crop the accused persons
B
           targeted Jagdish and Sheodan. Therefore, if injuries were
           not caused to other persons of the family of the victims i.e.
           two eyewitnesses, it does not mean that they were not
          ·present on the spot. The entire group couJd not be targeted
           by the accused as it was likely to result in the failure of their
c          mission."

          19. In the result, we do not find any merit in the appeal and
    it
    1  is dismissed   accordingly.

0       20. The Appellant~ are on bail. Their bail bonqs stand
    cancelled and they are directed to surrender and to serve out
    remainder of the sentence.

    K.K.T.                                           Appeal dismissed.