JEEWAN & ORS.versusSTATE OF UTTARAKHAND

                  [2012) 11 S.C.R. 985


                    JEEWAN & ORS.                             A
                             v.
               STATE OF UTTARAKHAND
           (Criminal Appeal No. 1275 of 2009)
                  DECEMBER 13, 2012
                                                              B
 [SWATANTER KUMAR AND MADAN B. LOKUR, JJ.]

    Appeal:

      Criminal appeal filed by accused before High Court - c
Proper and fair-hearing to appellants - Held: The appeal was
filed by accused through advocates, who appeared and took
several adjournments - Subsequently, another counsel
appeared for the appellants and stated that he had no
instructions in the matter - High Court then heard the appeal 0
with the assistance of amicus curiae and the State counsel -
Thus, High Court took every precaution and ensured proper
hearing to the appellants - Penal Code, 1860 - s.302134.

    Penal Code, 1860:
                                                               E
    s. 302 rlw s.34 - Murder- Three accused - Two accused
caught hold of the victim and the third stabbed him several
times causing his death - Conviction of all the three and
sentence of imprisonment for life, upheld by High Court -
Held: The accused had participated with the common F
intention in committing the murder of the deceased - The
cumulative effect of the oral and documentary evidence was
that all the three accused had been found guilty of offence
punishable u/s. 302 read with s. 34 - In the facts and
circumstances of the case, there is no reason to interfere with G
the concurrent finding of conviction and order of sentence
passed by courts below - There is some delay in lodging of
the FIR, but the same stands fully explained - Motive -
Evidence - Constitution of India, 1950 - Art. 136 - Delay in
 lodging FIR.
                            985                                H
    986      SUPREME COURT REPORTS              [2012) 11 S.C.R.

A         Evidence:

        Discrepancies in inquest report - Held: Discrepancy has
   to be material and seriously affecting the prosecution case -
   Every minor and immaterial discrepancy would not prove fatal
8 to the prosecution case - Inquest Report or the post mortem
   report cannot be termed to be basic evidence or substantive
   evidence and discrepancies occurring therein cannot be
   termed to be fatal nor even a suspicious circumstance which
   would warrant benefit to the accused and result in dismissal
   of the case of prosecution - Court has to examine entire case
C and discuss prosecution evidence in its entirety to examine
   the real impact of a material contradiction upon the
   prosecution case - There is sufficient evidence in the instant
   case to show involvement of accused persons in commission
   of the crime.
D
        The appellants were prosecuted for committing
   murder of the brother of PW-1. The prosecution case was
   that on 12-3-1991 at about 10 p.m., the complainant (PW-
   1) and the deceased were returning home after attending
E a marriage. When they had gone, about 100 steps away
  from the venue of the marriage, they met the accused
  persons, namely, A-1, A-2 and A-3. A-1 was carrying a
  knife while A-2 and A-3 were armed with sticks (dandas).
  A-2 and A-3 caught hold of the deceased while A-1 struck
F several blows with knife on his chest and abdomen. PW2
  and PW3, who after attending the marriage were taking
  rest in the nearby house, upon hearing the cries, reached
  the place of occurrence, whereupon the accused ran
  away. The victim was taken to the hospital where he
G succumbed to his injuries. The trial court convicted all
  the three accused uls 302 read with s. 34 IPC and
  sentenced them to imprisonment for life. The High Court
  upheld the conviction and the sentence.
      In the instant appeal, apart from raising a plea that
H the accused persons had not been given proper hearing
  JEEWAN & ORS. v. STATE OF UTTARAKHAND             987

before the High Court and their right to a fair defence     A
stood denied, it was contended that the presence of PW2
and PW3 at the place of occurrence was very doubtful;
that there was inordinate delay in lodging the FIR; and
that the Inquest Report was in contradiction with the
medical evidence and the ocular evidence of the             B
prosecution and there being material contradictions, the
appellants were entitled to acquittal.
    Dismissing the appeal, the Court
    HELD: 1. It cannot be said that the appellants were     C
denied proper and fair hearing before the High Court. The
accused had filed appeal before the High Court through
advocates, who appeared and took several
adjournments. Thereafter they did not appear. Then
another advocate appearing for appellants stated that he
                                                            0
had no instructions in the matter. The High Court then
heard the appeal with the assistance of amicus curiae
appointed by it and the State counsel. Thus, the High
Court took every precaution and ensured proper hearing
to the appellants before it passed the impugned
judgment. [para 8) [996-E-H; 997-D]                         E
    Dharam Pal v. State of U.P. 2008 (1) SCR 65 =AIR 2008
SC 920 - referred to. ·
     2.1. As regards merits of the case, according to the
prosecution, the deceased was murdered. by three F
accused to which his brother (PW1), PW2 and PW3 were
eye-witnesses. PW1 has fully supported the case of the
prosecution and has stated that A-1 was carrying a knife
and A-2 and A-3 were carrying Dandas. There was a
heated exchange of words between them and thereafter G
A-2 caught hold of the deceased while A-1 stabbed three
to four times in his stomach. On the alarm raised by PW1,
PW 2 and PW 3 reached to the place of occurrence
whereupon the accused persons ran away. [para 10] [997-
F-H; 998-A]                                               H
    988    SUPREME COURT REPORTS              [2012) 11 S.C.R.

A      2.2. According to PW2, PW-3 and he were sitting in
  the house of their acquaintance when they heard the
  noise. They thereafter reached the place of occurrence.
  In the torch light, they claimed to have seen the accused
  persons committing the crime including the fact that A-1
B was carrying knife and he stabbed the deceased.
  According to him, when the'' challenged the accused
  persons, they ran away. On similar lines is the statement
  of PW3. [para 12] [998-C-D]

C      2.3. It is an undisputed case that there was a marriage
  and all the three witnesses had gone to attend the
  marriage. The presence of PW2 and PW3 at the place In
  the nearby house can hardly be doubtful. PW1 would be
  accompanying the deceased, as he was his brother.
  Thus it cannot be said that the presence of these
D witnesses at the place of occurrence was doubtful. There
  is no discrepancy of any material consequence in the
  statements of PWs 1, PWs 2 and 3. [para 13 and 15] [998-
  E-G; 999-F]
E      2.4. As regards the discrepancy that in the inquest
   report, Ext. A6, the name of A-2 has been recorded,
  stating that he committed the murder of the deceased by
  stabbing him, while according to the ·witnesses giving the
  ocular version, it was A-1 who had given stab Injuries to
F the deceased, it is significant to note that the expression
  used in the inquest report is Ma/um. This could be a
  plausible error that crept In Ext. A6. It records the name
  of the witnesses, name of the Panchas and It appears
  that the names of the other accused have not been
  stated. The object of the inquest report was more towards
G recording the status of the body and articles thereon and
  the situation existing at the spot. This error cannot
  frustrate the case of the prosecution which stands fully
  established by the statements of PW1, PW2 and PW3.
  Further, PW1 is even a Panch witness to Ext.AS which
H clearly establishes his presence at the place of
   JEEWAN & ORS. v. STATE OF UTIARAKHAND             989


occurrence. The medical report and the injuries recorded A
and the statement of the doctor (PW7) fully support the
case of the prosecution that the deceased was stabbed
three to four times by the accused persons. [para 18-20]
(1000-D-H; 1001-A, C]
      2.5. Discrepancy has to be material and seriously B
affecting the case of the prosecution. Every minor and
Immaterial discrepancy would not prove fatal to the case
of the prosecution. The court has to keep in mind that the
evidence is recorded after years together and to expect
the witnesses to give a minute to minute account of the c
occurrence with perfection and exactitude would not be
a just and fair rule of evidence. Even an omission or
discrepancy in the inquest report may not be fatal to the
 case of the prosecution. Besides, the Inquest Report or
 the post mortem report cannot be termed to be basic D
 evidence or substantive evidence and discrepancies
 occurring therein cannot be termed to be fatal nor even
 a suspicious circumstance which would warrant a
 benefit to the accused and result in dismissal of the case
 of the prosecution. The court has to examine the entire E
 case and discuss the prosecution evidence in its entirety
 to examine the real impact of a material contradiction
 upon the case of the prosecution. Trustworthy evidence
 cannot be rejected on fanciful ground or treated to be in
 the nature of conjectures. In the instant case, the F
 discrepancies pointed out by the appellants are neither
 material nor do they affect the case of the prosecution
 adversely. There is sufficient evidence in the instant case
 to show the involvement of the accused persons in the
  commission of the crime. (para 21, 25-26] (1001-E-G;
  1005-F-G; 1006-A-B]                                        G
       Brahm Swaroop and Anr. v. State of Uttar Pradesh 2010
  (15) SCR 1 =    (2011) 6 SCC 288; Shyamal Ghosh v. State
  of West Bengal (2012) 7 SCC 646; Munshi Prasad & Ors. v.
  State of Bihar 2001 (4) Suppl. SCR 25 = (2002) 1 sec 351
                                                             H
  - referred to.
    990    SUPREME COURT REPORTS             [2012] 11 S.C.R.


A      2.6. As regards, the delay in institution of the FIR,
  admittedly, the occurrence took place at about 10 p.m. on
  12-3-1991 and the FIR was lodged on 13-3-1991 at about
  8.45 a.m. There is some delay in lodging of the FIR, but
  the same stands fully explained by the statement of the
B witnesses and the conduct of such witnesses. This has
  been well discussed by the trial court in its judgment.
  Wherever the delay is properly explained by the
  prosecution or the witnesses, the court would be
  reluctant to grant benefit of acquittal to the accused only
c on that ground. [para 27-28] [1006-B-C-E; 1007-D]
         Nagesh v. State of Kamataka (2012) 6 SCC 477; Bhajan
    Singh @ Harbhajan Singh & Ors. v. State of Haryana 2011
               =
    (7) SCR 1 (2011) 7 SCC 421; and Jitender Kumar v. State
    of Haryana (2012) 6 SCC 204 - referred to.
D      2.7. Motive is not an absolute essential feature of
  commission of a crime. According to PW1, there had been
  scuffle between the parties few days prior to the date of
  occurrence, when the accused persons were playing
  cards along with the deceased and gambling which could
E be settled only by the intervention of the village-headman
  and that they had threatened the deceased and stated that
  they would see him later. This may or may not be a motive
  enough to kill somebody, but the fact remains that prior
  to the date of occurrence, there was a scuffle between
F the parties where the accused persons had threatened
  the deceased. [para 30] [1009-C-E]
       2.8. The accused had participated with the common
  intention in committing the murder of the deceased.
  While A-2 caught hold of the deceased A-1 had stabbed
G him and A-3 also participated in the commission of the
  crime. The cumulative effect of the oral and documentary
  evidence was that all the three accused had been found
  guilty of offence punishable u/s. 302 read with s. 34 IPC.
  [para 20] [1001-C-D]
H
       JEEWAN & ORS. v. STATE OF UTIARAKHAND                  991


         2.9. Unless finding recorded by the High Court is so        A
    outweighed so outrageously defies logic as to suffer from
    the vice of irrationality, this Court would not interfere with
'   the judgment. In the facts and circumstifnces of the case,
    there is no reason to interfere with the concurrent finding
    of conviction and order of sentence passed by the courts         B
    below. [para 24 and 31] [1005-B; 1009-E]

        State of U.P. v. Naresh and Ors. 2011 (4) SCR 1176 =
    (2011) 4 SCC 324; and Bhola @ Paras Ram v. State of H.P.
    2009 (2) SCR 750 = (2009) 11 sec 460 - referred to.
                                                                     c
                         Case Law Reference:
        2008 (1) SCR 65              referred to         para 8
        2010 (15)SCR1                referred to         para 21
                                                                     D
        (2012) 1 sec 646            referred to          para 22
        2011 (4) SCR 1176            referred to         para 24
        2009 (2) SCR 750             referred to         para 24
        2001 (4) Suppl. SCR 25 referred to               para 25     E

         (2012) 6 sec 477            referred to         para 28
        2011 (7) SCR 1               referred to         para 29
        (2012) 6 sec 204             referred to         para 29     F
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1275 of 2009.

         From the Judgment &Order dated 14.10.2008 of the High
    Court of Uttarakhand at Naintial in Criminal Appeal No. 1392     G
    of 2001 (Old No. 300 of 1994)

         Binu Tamta for the Appellants.

         Rahul Verma, Jatinder Kumar Bhatia for the Respondent.
                                                                     H
    992      SUPREME COURT REPORTS                [2012] 11 S.C.R.

A         The Judgment of the Court was delivered by
       SWATANTER KUMAR, J. 1. The present appeal is
  directed against the judgment of the High Court of Uttarakhand
  at Nainital dated 14th October, 2008 vide which the High Court
8 confirmed the judgment of the trial court and dismissed the
  appeal preferred by the accused against their conviction and
  order of sentence.

        2. The conviction of the accused is based upon the version
  of the prosecution that on 12th March, 1991 at about 10 p.m.,
C complainant Bhupal Chandra, who later came to be examined
  as PW1 , along with his brother Devendra Lal after attending
  the marriage ceremony of one Pooran Chandra in Village
  Dhapla within the limits of Police Station Kaladhungi, District
  Nainital, were returning home. On their way, they found the
D accused Jeewan Ram, Dalip and Kamal, all residents of their
  village, standing there. Jeewan was carrying a knife while
  Kamal and Dalip were armed with sticks (danda). Accused
  Kamal and Dalip caught hold of Devendra while Jeewan struck
  several blows with knife on his chest and abdomen. PW1 was
E carrying torch and saw the occurrence in that light. Two more
  persons, Rajendra Singh, PW2 and Prem Ram, PW3, who
  after attending the marriage were taking rest in the nearby
  house of Shyam Lal, upon hearing the alarm raised by
  Devendra Lal, reached the place of occurrence. In the light of
F the torches they were carrying, they witnessed the accused com
  itting the crime. Upon hearing the alarm raised by Devendra, th
  se witnesses saw the accused persons running tNla'f, however, they
  did not chase them out of fear.
       3. Devendra Lal, was immediately taken to a hospital in
G Haldwani where he succumbed to his injuries. At about 8.45
  a.m., on 13th March, 1991 Bhupal Chandra, PW1, lodged the
  First Information Report (for short, the 'FIR') against the three
  accused persons at Police Station Kaladhungi and a crime
  case No. 68 of 1991 was accordingly registered under Section
H
   JEEWAN & ORS. v. STATE OF UTIARAKHAND                   993
           [SWATANTER KUMAR, J.]

302 of the Indian Penal Code (for short, the 'IPC') against all A
the three accused persons. In the First Information Report, Ext.
A1, the complainant stated that the motive for commission of
crime by the accused was previous enmity between the parties.
According to him, during Deepawali festival, the accused
persons along with Devendra Lal were playing cards and B
gambling, when they picked up a quarrel and there was a scuffle
 between the parties. The scuffle did not aggravate into any
serious situation because of intervention by Sabhapati, the
 head-man of the village. Though, he got the matter
compromised, the three accused continued to harbour enmity c
and even threatened Devendra Lal to see him later.

     4. After Devendra Lal succumbed to his injuries in the
hospital, a report was sent to the police. Sub Inspector Daya
Ram Singh, PW8 came to the civil hospital, Haldwani, took up
the charge of the dead body and prepared the inquest report, D
Ext. A6, whereafter the body was handed over to Dr. T.C. Pant,
PW7 with a request to perform post-mortem upon the body of
the deceased. The doctor performed the post-mortem and
prepared a report, Ext. A7, in which he noticed the injuries upon
the body of the deceased as well as the cause of death, which E
reads as under:-
    "(i) P.W. 1.2 cm X Y. cm on front of sterum, 7 cm medial
    left nipple. On opening the wound it is cavity deep piercing
    the sterum.                                                    F
    (ii) P.W. 8 cm X 3 cm X cavity deep, on right side of chest,
    3 ems towards right nipple. On opening the wond right lobe
    of liver is cut.
    (iii) P.W. 15 cm X 5 cm X cavity deep. Medial end of G
    wound touching 6th thoracic spine extending to right side
    of back of chest. Right lung beneath the injury is cut.
     (iv) Punctured wound 4 cm x 2 cm x cavity deep, 3 cm
     above from the left ant sup iliac spine on left lat side of   H
    994       SUPREME COURT REPORTS                (2012] 11 S.C.R.


A         abdomen. Loops of intestine coming out.

          (v) P.W. 3 cm X 1 Y. cm X cavity deep about 3 cm from
          left nipple underneath the injury. Left lung is cut.

          (vi) l.W. 4 cm X 2 cm X muscle deep on medial side of
B         right knee about 2 Y. cm from upper border of patella.

          (vii) l.W. 3 cm X 1Y. cm X muscle deep, about 2 cm lateral
          to left ant sup iliac spine."

C       5. PW9, Sub Inspector Ram Baran Ram, interrogated the
  witnesses, inspected the torches of the complainant and
  witnesses, prepared memorandums, Ext. A2 to A4, the site
   plan of the place of occurrence, Ext. A 10, arrested the accused
   persons on 15th March, 1991 and recovered the knife used in
  the crime upon the statement of Jeewan vide memorandum Ext.
D A-12. The Report was filed in the court of competent jurisdiction.
  The accused persons were committed to the court of Ill
  Additional Sessions Judge, Nainital and were tried under
  Section 302 IPC read with Section 34 IPC, the offence with
  which they were charged. The learned trial court vide its
E judgment dated 25th February, 1994 formed the view that the
  prosecution had been able to prove its case beyond reasonable
  doubt and therefore convicted the accused persons of
  committing an offence under Section 302 read with Section 34
  IPC and awarded them the following sentence :-
F
          "On the basis of the above evidence and circumstances, I
          arrive at the conclusion that the prosecution has succeeded
          in proving the charges levelled by them. Thus, I find the
          accused persons Jeevan, Kamal and Dalip guilty for the
G         offence of murder of Devender on dated 12.03.1991 at
          10.00 p.m. in village Dhapla, Police Station Kaladungi.
                                                                Sd/-
                                                    (Bijender Singh)
                                       Third Addi. Sessions Judge,
H                                       Nainital, Camp at Haldwani
   JEEWAN & ORS. v. STATE OF UTIARAKHAND                  995
           [SWATANTER KUMAR, J.]

    Dated: 25.02.1994                                             A

                         ORDER

          The accused persons Jeevan, Kamal and Dalip are
    found guilty for the offence under section 302 read with
    section 34 l.P.C. They are on bail. Their Personal Bonds      B
    and Bail Bonds are cancelled and the sureties are
    discharged.

         They be taken in custody for undergoing sentence
    to awarded after hearing them on the quantum of               c
    sentence.
                                                          Sd/-
                                              (Bijender Singh)
                                 Third Addi. Sessions Judge,
                                  Nainital, Camp at Haldwani      D
    Dated: 25.02.1994

          I have heard the accused persons Jeevan, Kamal
    and Dalip and their learned counsel Shri Shyam Singh
    Mehra, Advocate on the quantum of sentence, who has           E
    stated that the accused persons are innocent, but I have
    convicted them after analyzing the evidence."

      6. Aggrieved from the judgment of conviction and order of
sentence, the accused persons preferred a common appeal           F
before the High Court which came to be dismissed vide
judgment of the High Court dated 14th October, 2008 giving
rise to the present appeal.

    7. It is contended on behalf of the appellants/accused that
                                                                  G

      (a)   the presence of PW2 and PW3 at the place of
            occurrence is very doubtful on the one hand, while
            on the other, as per the case of prosecution, the
            incident occurred near the place of marriage          H
    996         SUPREME COURT REPORTS                 (2012] 11 S.C.R.


A                 where, obviously, a large number of persons must
                  be present and non-production of any such person
                  from the marriage party raises doubt towards the
                  case of prosecution.

          (b)     there is inordinate delay in lodging the FIR. The
B
                  occurrence took place at about 10.00 p.m. on 12th
                  March, 1991 while the First Information Report
                  Ext.A 1 was lodged at about 8.45 a.m. on 13th
                  March, 1991. Thus, the accused are entitled to the
                  benefit of doubt.
c
          (c)     The Inquest Report is in contradiction with the
                  medical evidence and the ocular evidence of the
                  prosecution and there being material
                  contradictions, the appellant is entitled to the benefit
D                 of acquittal.

          (d)    The accused persons had not been given proper
                 hearing before the High Court and their right to a
                 fair defence stood denied.

E        8. Amongst the above contentions, we may deal with the
   last argument raised on behalf of the appellant at the threshold.
  There is no merit in this submission that the appellant was
  denied proper and fair hearing before the High Court. The
  accused had filed an appeal before the High Court through
F private counsel Mr. V.S. Pal and Mr. M.S. Pal, advocates.
  These advocates appeared and took several adjournments
  before the High Court. Thereafter they did not appear in that
  court. Then, Advocate Shri D.N. Sharma appearing for
  appellants stated that he had no instructions in the matter. The
G High Court having been left with no alternative but to proceed
  with the matter and keeping in view the judgment of this Court
  in the case of Dharam Pal v. State of U.P. [AIR 2008 SC\920],
  heard the appeal with the assistance of amicus curiae
  appointed by the court. Having heard both the amicus and the
H State counsel, the Court then decided the appeal. The appeal
   JEEWAN & ORS. v. STATE OF UTTARAKHAND                  997
           [SWATANTER KUMAR, J.]

was decided by the court in accordance with law. These facts A
have also been recorded by the High Court in its judgment
under appeal. In the grounds of appeai raised by the appellant,
there is no challenge to these facts. Thus, in view of the
undisputed facts, there is no occasion for this Court to return a
finding that the appellant had no proper opportunity of hearing B
before the High Court. The contention that the amicus curiae
did not raise all the relevant contentions before the High Court
is without any substance. It is not for the Court to require a
counsel, including Amicus Curiae, to raise a submission, the
submission may vary from counsel to counsel. The duty of the c
court was only to ensure that the accused was not held guilty
without affording him an opportunity of hearing in accordance
with law. If the counsel appearing for the appellants pleaded
no instructions, no fault of procedural or substantial violation
could be attributed to the court. The blame for such attitude 0
would lie on none else but the appellants or the persons
pursuing appeal on their behalf. The High Court took every
precaution and ensured proper hearing to the appellants before
it passed the impugned judgment. Thus, we have no hesitation
in rejecting this contention.
                                                                  E
      9. The remaining three contentions raised on behalf of the
appellant can be discussed together in order to avoid repetitive
discussion, as they are inter-linked with appreciation of
evidence.
                                                                 F
     10. According to the prosecution, the deceased Devendra
was murdered by three accused to which his brother Bhupal
Chandra, PW1, Rajendra Singh, PW2 and Prem Ram, PW3
were eye-witnesses. They were coming from the marriage and
in torch light they saw the accused persons committing the G
crime. PW1 has fully supported the case of the prosecution and
has stated that Jeewan was carrying a knife and Kamal and
Dalip were carrying Dandas. There was a heated exchange of
words between them and thereafter Kamal caught hold of
Devendra while Jeewan stabbed three to four times in the H
    998     SUPREME COURT REPORTS                  [2012] 11 S.C.R.


A stomach of Devendra. On seeing this, PW1 raised an alarm
  and then witnesses Rajendra Singh and Prem Ram came to
  the place of occurrence. Upon their coming, the accused
  persons ran away.

         11. The deceased was taken to the hospital where he
8
    collapsed. In his cross-examination, PW1 also stated that crime
    scene was about 100 steps away from the venue of the
    marriage of Pooran Chandra and there was no light in the
    passage.

C      12. According to PW2, Rajendra Singh, they were sitting
  in the house of Shyam Lal and talking when they heard the
  noise coming from the hut of Nathu Ram. PW2 and PW3
  thereafter reached the place of occurrence. In the torch light, they
  claimed to have seen the accused persons committing the
D crime including the fact that Jeewan was carrying kr.ife and that
  Jeewan stabbed the deceased. According to him, when they
  challenged the accused persons, the accused persons ran
  away. On similar lines is the statement of PW3.

E       13. The first question that arises for consideration is
   whether the presence of these three witnesses in and around
   the place of occurrence is so very doubtful that their statement
   should be disbelieved. The answer to this question has to be
   in the negative. It is an undisputed case before us that there
   was a marriage in the house of Pooran Chandra and all the
F three witnesses had gone to attend the marriage. PW1 was
   accompanying the deceased. When they were returning from
   the marriage, the incident occurred near the place of Nathu
  .Ram. It is not unbelievable that village persons would attend a
   marriage and sit down at somebody's place to chat. Thus, the
G presence of PW2 and PW3 at the place of Shyam Lal can hardly
   be doubtful. PW1 would be accompanying the deceased, as
   he was his brother. We are unable to see any merit in the
   contention and the reasons for which the court can come to the
   conclusion that the presence of these witnesses at the place
H of occurrence was doubtful.
   JEEWAN & ORS. v. STATE OF UTTARAKHAND                      999
           [SWATANTER KUMAR, J.]

     14. Heavy reliance was placed upon a discrepancy                 A
appearing in the statement of PW1 and PW2. PW1 had stated
as follows:-

    ".... Devendra was caught by Kamal and Devendra and
    Jeevan stabbed three to four times in the stomach of
                                                                      8
    Devendra. I raised alarm and then witnesses Prem Ram
    and Rajendra Singh came there. Accused persons ran
    away when they were challenged."

    While PW2 stated as follows:-
                                                                      c
    "... Right then we heard the noise coming from the hut of
    Nathu Ram and then I and Prem Singh reached at the crime
    scene. We were carrying torch and we saw in its light that
    Jeevan was carrying knife and Kamal and Dalip were
    carrying Danda and they were attacking with them on 0
    Devendra. Jeevan stabbed him and Kamal and Dilip
    caught his hold. When we challenged them, accused
    persons ran away. Devendra fell down on the surface."
     15. The contention is that PW2 and PW3 never saw the
occurrence as according to PW1, it was after Jeewan had               E
stabbed the deceased three-four times in the stomach that he
raised alarm. While according to PW2, in the torch light they
had seen Jeewan stabbing the deceased. This cannot be called
a discrepancy of any material consequence. Firstly, PW1 had
categorically stated that he had raised the alarm upon which          F
Prem Ram and Rajendra Singh reached at the spot. Secondly,
PW2 and PW3 were in the house of Shyam Lal which was very
close by. Listening to the hue and cry, they had come to the
house of Nathu Ram and in the torch light had seen Jeewan
stabbing and Kamal and Dalip holding the deceased.                    G
     16. The court cannot lose sight of the fact that the statement
of these witnesses had been recorded more than two years
subsequent to the date of occurrence. To expect the witnesses
to depose with arithmetical exactitude would not be proper            H
    1000     SUPREME COURT REPORTS                 [2012] 11 S.C.R.

A application of rule of evidence, keeping in view the facts and
  circumstances of the case.
        17. It is but natural that it would take a little time for the
  offender to stab a person three to four times. Natural conduct
  of PW1 would be to raise alarm, which he did. Immediately
8
  then, PW2 and PW3 came and saw the deceased being
  stabbed. They might not have seen all the stabbings, but even
  last stabbing by Jeewan could be viewed by them as they were
  carrying torches and had seen the accused persons. They not
C only saw the occurrence, but PW2 and PW3 also challenged
  the accused persons upon which they ran away. Thus, PW2 and
  PW3 had sufficient time to see, if not the entire occurrence, at
  least a part thereof as well as the participation of the accused
  persons in committing the murder of the deceased.
D      18. Another discrepancy that is sought to be highlighted
   on behalf of the appellant is that in the inquest report, Ext. A6,
  the name of Kamal has been recorded, stating that he
  committed the murder of the deceased by stabbing him. While
  according to the witnesses giving the ocular version, it was
E Jeewan who had given stab injuries. to the deceased. It is to
  be noticed that Ext. A6 is an inquest report prepared by S.I.
  Daya Ram Singh in which various factors were recorded and
  then it was an impression that was formed by the person
  preparing it. The expression used in Ext. A6 is Ma/um. This
F could be a plausible error that crept in Ext. A6. It records the
  name of the witnesses, name of the Panchas and it appears
  that names of the other accused have not been stated. The
  object of the inquest report was more towards recording the
  status of the body, the articles on the body of the deceased and
G the situation existing at.the spot. this error cannot frustrate the
  case of the prosecution which stands fully established by the
  statements of PW1, PW2 and PW3.
       19. At this stage, it can be very usefully noticed that PW1
  is even a Panch witness to Ext.A6 which clearly establishes his
H presence at the place of occurrence. The medical report and
   JEEWAN & ORS. v. STATE OF UTIARAKHAND                     1001
           [SWATANTER KUMAR, J.]

the injuries afore-recorded and the statement of PW7, Dr. T.C.        A
Pant fully support the case of the prosecution. In the post-
mortem report, he noticed as many as five punctured wounds
i.e. on the left nipple, towards right nipple on the right side of
the chest cutting right lobe of the liver, punctured wound touching
6th thoracic spine extending to right side of back of chest,          B
 punctured wound cavity deep anterior superior illiac spine on
the left lateral side of abdomen and punctured wound cavity
 deep underneath the first injury. Besides this, two more incised
 wounds were noticed at the right knee and the spine region.

     20. This medical evidence clearly supports the case of the       C
prosecution that the deceased was stabbed three to four times
by the accused persons. They had participated with the
common intention in committing the murder of the deceased.
While Kamal caught hold of the deceased Jeewan had stabbed
him and Dalip also participated in the commission of the crime.       D
The cumulative effect of the oral and documentary evidence was
that all the three accused had been found guilty of offence under
Section 302 read with Section 34 IPC and punished with
imprisonment for life.
                                                                      E
     21. Now, let us examine the law in relation to
discrepancies. Discrepancy has to be material and seriously
affecting the case of the prosecution. Every minor and
immaterial discrepancy would not prove fatal to the case of the
prosecution. The Court has to keep in mind that evidence is           F
recorded after years together and to expect the witnesses to
give a minute to minute account of the occurrence with
perfection and exactitude would not be a just and fair rule of
evidence. The law in this regard is well settled. Even an
omission or discrepancy in the inquest report may not be fatal        G
to the case of the prosecution. The Court would have to
examine the entire case and discuss the prosecution evidence
in its entirety to examine the real impact of a material
contradiction upon the case of the prosecution. Trustworthy
evidence cannot be rejected on fanciful ground or treated to be       H
    1002   SUPREME COURT REPORTS                 [2012] 11 S.C.R.


A in the nature of conjectures. In this regard, reference can be
  made to the case of Brahm Swaroop and Anr. v. State of Uttar
  Pradesh [(2011) 6 SCC 288], where the Court held as under:-

       "10. Omissions in the inquest report are not sufficient to
       put the prosecution out of court. The basic purpose of
B
       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 cannot be
c      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
       Pedda Narayana v. State of A.P., Khujji v. State of M.P.,
D      George v. State of Kera/a, Sk. Ayub v. State of
       Maharashtra~, Suresh Rai v. State of Bihar, Amar Singh
       v. Ba/winder Singh~, Radha Mohan Singh v. State of
       U.P.Z and Aqeel Ahmad v. State of U.P.~)

E      11. In Radha Mohan Singh, a three-Judge Bench of this
       Court held: (SCC p. 460, para 11)

       "11 . ... No argument on the basis of an alleged
       discrepancy, overwriting, omission or contradiction in the
       inquest report can be entertained unless the attention of
F      the author thereof is drawn to the said fact and he is given
       an opportunity to explain when he is examined as a
       witness in court."
                                               (emphasis added)
G
       12. 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 a mistake he
       omitted to mention the crime number in the inquest report,
H
  JEEWAN & ORS. v. STATE OF UTTARAKHAND                  1003
          [SWATANTER KUMAR, J.]
                                   -
    this Court has held that just because the author of the       A
    report had not been diligent did not mean that reliable and
    clinching evidence adduced by the eyewitnesses should
    be discarded by the Court. [Vide Krishna Pal (Dr.) v. State
    of U.P.]
                                                                  B
    13. In view of the law referred to hereinabove it cannot be
    held that any omission or discrepancy in the inquest is fatal
    to the prosecution's case and such omissions would
    necessarily lead to the inference that FIR is ante-timed.
    Shri N.K. Sharma, Sub-Inspector (PW 7), had denied the C
    suggestion made by the 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 D
     submissions made in this regard are preposterous."
    22. Similarly, reference can also be made to the case of
Shyamal Ghosh v. State of West Bengal [(2012) 7 SCC 646],
where the Court dealing with discrepancies in the investigation   E
and non-obtaining of FSL and their effect on the case of the
prosecution held as under:-

    "58. Of course, there are certain discrepancies in the
    investigation inasmuch as the investigating officer failed F
    to send the bloodstained gunny bags and other recovered
    weapons to the FSL, to take pho.tographs of the shops in
    question, prepare the site plan thereof, etc. Every
    discrepancy in investigation does not weigh with the court
    to an extent that it necessarily results in acquittal of the
    accused. These are the discrepancies/lapses of G
    immaterial consequence. In fact, there is no serious
    dispute in the present case to the fact that the deceased
     had constructed shops on his own land. These shops were
     not the site of occurrence, but merely constituted a
     relatable fact. Non-preparation of the site plan or not H
     1004    SUPREME COURT REPORTS                 [2012] 11 S.C.R.

 A       sending the gunny bags to the FSL cannot be said to be
         fatal to the case of the prosecution in the circumstances
         of the present case. Of course, it would certainly have been
         better for the prosecution case if such steps were taken
         by the investigating officer.
B                                     *****
         *****                                         ******
          68. From the above discussion, it precipitates that the
          discrepancies or the omissions have to be material ones
          and then alone, they may amount to contradiction of some
c         serious consequence. Every omission cannot take the
         place of a contradiction in law and therefore, be the
         foundation for doubting the case of the prosecution. Minor
         contradictions, inconsistencies or embellishments of trivial
         nature which do not affect the core of the prosecution case
D        should not be taken to be a ground to reject the
         prosecution evidence in its entirety. It is only when such
         omissions amount to a contradiction creating a serious
         doubt about the truthfulness or creditworthiness of the
         witness and other witnesses also make material
E        improvements or contradictions before the court in order
        to render the evidence unacceptable, that the courts may
         not be in a position to safely rely upon such evidence.
        Serious contradictions and omissions which materially
        affect the case of the prosecution have to be understood
F       in clear contradistinction to mere marginal variations in the
        statement of the witnesses. The prior may have effect in
        law upon the evidentiary value of the prosecution case;
        however, the latter would not adversely affect the case of
        the prosecution."
G       23. This Court has also expressed the view that it is a fair
  and settled position of law that even if there are some
  omissions, contradictions or discrepancies, the entire evidence
  cannot be discarded. After exercising care and caution and
  sifting the evidence to separate the truth from untruth,
H exaggeration, embellishments and improvements, the Court can
   JEEWAN & ORS. v. STATE OF UTTARAKHAND                     1005
           [SWATANTER KUMAR, J.]

come to the conclusion as to whether the residual evidence is         A
sufficient to convict the accused.

      24. Still, in some cases, the Court took the view that unless
finding recorded by the High Court is so outweighed or such
finding so outrageously defies logic so as to suffer from the vice
                                                                      8
of irrationality, this Court would not interfere with the judgment.
A mere discrepancy simplicitor does not affect the case of the
prosecution materially or make it improbable and the Court will
 not be inclined to interfere with the finding recorded by the high
 courts. (Ref. State of U.P. v. Naresh and Ors. [(2011) 4 SCC         C
 324] and Bhola @ Paras Ram v. State of H.P. [(2009) 11 SCC
 460].

      25. In the case of Munshi Prasad & Ors. v. State of Bihar
[(2002) 1 SCC 351), this Court has also taken the view, after
discussing various judgments, that some documents are not D
substantive evidence by themselves and it is the statement of
expert or the author of the document that has the credibility of
a substantive evidence. In the similar vein, the inquest report
also cannot be termed to be basic or substantive evidence
being prepared by the police personnel being a non-medical E
man and at the earliest stage of the proceeding. In the wake
of the aforesaid, a mere omission of a particular injury or
 indication therein of an additional one cannot, however,
 invalidate the prosecution case. The evidential value of inquest
 report cannot be placed at a level as has been so placed by F
 the appellants. The Inquest Report or the post mortem report
 cannot be termed to be basic evidence or substantive evidence
 and discrepancies occurring therein cannot be termed to be
 fatal nor even a suspicious circumstance which would warrant
  a benefit to the accused and result in dismissal of the case of G
  the prosecution.

     26. In view of the above discussion on the evidence of the
 case and other attending circumstances seen in light of the
 above stated principles, we have no hesitation in coming to the
 conclusion that the discrepancies pointed out by the appellants          H
    1006    SUPREME COURT REPORTS                [2012] 11 S.C.R.

A are neither material nor do they affect the case of the
  prosecution adversely. The Court has to examine the entire ·
  evidence as a whole and not in parts so as not to frustrate the
  entire eye witness version and the medical evidence. There is
  sufficient evidence in the present case to show the involvement
B of the accused persons in the commission of the crime.

        27. Lastly, we should deal with the contention of the
   appellant dealing with the delay in institution of the FIR.
   Admittedly, the occurrence took place at about 10 p.m. on 12th
   March, 1991 and the FIR was lodged on 13th March, 1991 at
C about 8.45 a.m. There is some delay in lodging of the FIR, but
   this delay stands fully explained by the statement of the
   witnesses and the conduct of such witnesses. PW1 is the author
   of the FIR. According to his statement, he had first taken the
   deceased to the hospital and he remained in the hospital and
D went to the police station in the morning hours of 13th March,
   1991. This conduct of PW1 is natural. He is the brother of the
   deceased and was grieving the death of his brother. His priority
   would be to ensure that his brother gets the best of the medical
   aid at the earliest and then to look after him. There is some
E distance between the hospital and the place of occurrence and
   he remained in the hospital to look after his brother.
   Unfortunately, his brother was declared dead. This entire
  controversy has been well discussed by the trial court in its
  judgment. The relevant part of the judgment reads as under:-
F
        "According to the prosecution, the incident occurred on
        12.03.1991 at 10.00 p.m. whereas the first information
       report of the incident was lodged with Police Station
       Kaladungi on dated 13.02.1991 at 8.45 a.m. The place of
       incident is situated at a distance of 10 kms from the Police
G
       Station. The learned defence counsel has pleaded that no
       satisfactory explanation has been given for delay in lodging
       first information report, due to which the prosecution story
       appears to be doubtful. PW-1 Bhopal Chander has stated
       that after receiving injury Devender was taken to the
H
  JEEWAN & ORS. v. STATE OF UTIARAKHAND                    1007
          [SWATANTER KUMAR, J.]

    hospital in Haldwani in a tractor where he died and A
    subsequently he went to Police Station Kaladungi in the
    morning to lodge the complaint leaving the dead body in
    the Hospital in Haldwani itself. It is the natural process that
    the every family member first of all tries to save the life of
    injured instead of lodging first information report and the B
    same has happened in the present case as well that the
    complainant first of all brought his brother to the hospital
     in Haldwani in order to save his life where he died and
     subsequently he went to the Police Station and lodged the
     complaint. Keeping in view the circumstances of the case, c
     satisfactory explanation is available on the file to the delay
      in lodging first information report."

      28. We are in full agreement with the reasoning given by
the trial court for accepting that delay in lodging of the FIR had
been duly explained. It is not the law that mere delay in lodging D
the FIR would always or unexceptionally prove fatal to the case
of the prosecution. Wherever the delay is properly explained
by the prosecution or the witnesses, the court would be reluctant
to grant benefit of acquittal to the accused only on that ground.
 In the case of Nagesh v. State of Kamataka [(2012) 6 SCC E
477], the Court discussed various judgments of this Court and
while noticing the principle that "letting the guilty escape is not
 doing justice according to law" held as under:-

     "26. The Court has to examine the evidence in its entirety,     F
     particularly, in the case of circumstantial evidence, the
     Court cannot just take one aspect of the entire ~vidence
     led in the case like delay in lodging the FIR in isolation of
     the other evidence placed on record and give undue
     advantage to the theory of benefit of doubt in favour of the    G
     accused.

     27. This Court in Sucha Singh v. State of Punjab has
     stated: (SCC pp. 653-54, para 20)

    . "20. Exaggerated devotion to the rule of benefit of doubt      H
    1008     SUPREME COURT REPORTS                 [2012] 11 S.C.R.


A        must not nurture fanciful doubts or lingering suspicion and
         thereby destroy social defence. Justice cannot be made
         sterile on the plea that it is better to let a hundred guilty
         escape than punish an innocent. Letting the guilty escape
         is not doing justice according to law. (See Gurbachan
B        Singh v. Satpa/ Singh) The prosecution is not required to
         meet any and every hypothesis put forward by the accused.
         (See State of U.P. v. Ashok Kumar Srivastava.) A
         reasonable doubt is not an imaginary, trivial or merely
        possible doubt, but a fair doubt based upon reason and
c       common sense. It must grow out of the evidence in the
        case. If a case is proved perfectly, it is argued that it is
        artificial; if a case has some inevitable flaws because
        human beings are prone to err, it is argued that it is too
        imperfect. One wonders whether in the meticulous
        hypersensitivity to elimina~e a rare innocent from being
D
        punished, many guilty persons must be allowed to escape.
        Proof beyond reasonable doubt is a guideline, not a fetish.
        [See lnder Singh v. State (Delhi Admn.). Vague hunches
        cannot take place of judicial evaluation.
E       'A Judge does not preside over a criminal trial, merely to
        see that no innocent man is punished. A Judge also
        presides to see that a guilty man does not escape. Both
        are public duties.· [Per Viscount Simon in Stir/and v.
        Director of Public Prosecutions quoted in State of U.P.
F       v. Anil Singh (SCC p. 692, para 17).]

        Doubts would be called reasonable if they are free from a
        zest for abstract speculation. Law cannot afford any
        favourite other than truth."
G      29. In other cases, the Court has taken the view that mere
  delay in lodging the FIR may not prove fatal in all cases, but in
  given circumstances of a case, delay in lodging the FIR can
  be one of the factors which corrode the credibility of the
  prosecution version. Delay in lodging of the FIR cannot be a
H ground for throwing the entire prosecution case. In cases, where
   JEEWAN & ORS. v. STATE OF UTTARAKHAND                  1009
           [SWATANTER KUMAR, J.]

there is some delay in filing the FIR, the complainantmust give    A
explanation for the same. Undoubtedly, delay in lodgifl§ the FIR
does not make the complainant's case improbable when such
delay is properly explained. (Ref. Bhajan Singh @ Harbhajan
Singh & Ors. v. State of Haryana ((2011) 7 SCC 42f] and
Jitender Kumar v. State of Haryana [(2012) 6 SCC 204].             B

      30. The delay having been properly explained by the
investigating agency, PW2 and PW1, we see no reason to take
the view that delay in lodging of the FIR in the facts of the
present case would prove fatal to the case of the prosecution.
The motive is not an absolute essential feature of commission      C
of a crime. According to PW1, there had been scuffle between
the parties few days prior to the date of occurrence, when the
accused persons were playing cards along with the deceased
and gambling which could be settled only by the intervention of
the Sabhapati and that they had threatened the deceased and        D
staled that they would see him later. This may or may not.be a
 motive enough to kill somebody, but the fact remains that prior
 to the date of occurrence, there was a scuffle between the
 parties where the accused persons had threatened the
 deceased.                                                         E

     31. In view of the above discussion, we see no reason to
interfere with the concurrent finding of conviction and order of
sentence passed by the courts. Consequently the appeal is
dismissed.                                                         F

R.P.                                        Appeal dismissed.