NAND LAL AND OTHERSversusTHE STATE OF CHHATTISGARH

276                      [2023]REPORTS
               SUPREME COURT    2 S.C.R. 276               [2023] 2 S.C.R.


A                        NAND LAL AND OTHERS
                                       v.
                      THE STATE OF CHHATTISGARH
                      (Criminal Appeal No. 1421 of 2015)
B                              MARCH 14, 2023
       [B. R. GAVAI, VIKRAM NATH AND SANJAY KAROL, JJ.]
             Penal Code, 1860: s. 302 – Murder – Prosecution case that
      previous enmity between the accused persons and the complainant
      – Accused no. 11 assaulted the complainant and thereafter, the
C
      complainant lodged an FIR – Said accused then alongwith the other
      accused armed with deadly weapons formed an unlawful assembly,
      and assualted the victim-complainant’s father along with the
      prosecution witnesses, resulting in the death of the victim –
      Conviction of the accused persons for the offences punishable u/s.
D     302 along with the other offences and sentenced to life imprisonment
      by the courts below – Sustainability of – Held: Delay in lodging of
      the FIR by the injured person not explained at all – Prosecution
      attempted to supress the real genesis of the incident – There was
      non-explanation of the injuries sustained by the accused, which
      cannot be considered to be minor or superficial – Prosecution
E
      supressed the information that accused informed the police that he
      was assaulted by the complainant, thus, the said accused entitled to
      the benefit of doubt – As regards the remaining accused persons,
      their names were not mentioned in the merg report which was lodged
      prior to the lodging of FIR, in the inquest panchnama and spot
F     panchnama – Taking into consideration the delay in lodging the
      FIR, with the circumstance of their names not being mentioned in
      the contemporaneous documents, the possibility of the said accused
      being falsely implicated cannot be ruled out – Their conviction was
      based only on the oral testimony of the interested witness without
      sufficient corroboration, thus, would not be sustainable – Judgment
G
      and order passed by the High Court set aside – Evidence.
            Allowing the appeals, the Court
            HELD: 1.1 Believing the contents of the FIR that the
      incident has taken place at around 08.30 PM and that the injured
H     persons had reached the Bazar at around 10-11 PM where they
                                      276
NAND LAL AND OTHERS v. THE STATE OF CHHATTISGARH                      277


were informed that they could not be treated unless a report was      A
lodged, a further delay of around four to five hours in lodging the
FIR has not been explained. The distance between the Bazar
and the Police Station is approximately 15 Kms. It has come on
record that there is an all-weather road connecting the two places.
As such, at the most, it would take around 30-40 minutes to reach
                                                                      B
the Police Station from the Bazar. This delay of four hours in
lodging the FIR is not at all explained. [Para 25][286-F-G]
       1.2 Undisputedly, the injuries sustained by accused No. 11
cannot be considered to be minor or superficial. The witnesses
are also interested witnesses, inasmuch as they are close relatives
of the deceased. That there was previous enmity between the           C
two families, on account of election of Sarpanch, has come on
record. Previous enmity is a double-edged sword. On one hand,
it can provide motive and on the other hand, the possibility of
false implication cannot be ruled out. [Para 28][288-D-E]
      1.3 Much prior to lodging of the FIR at 03.15 AM on 4th         D
November 2006 by K, the Police had taken accused No. 11 for
medical examination. The memo forwarding accused No. 11 for
medical examination to Medical Officer mentions that accused
No. 11 had informed the police that at around 08.30 PM, he was
assaulted by PW-1. Undisputedly, the prosecution has suppressed       E
information with regard to the said incident. The prosecution has
also suppressed the FIR lodged by PW-1. It is thus clear that the
prosecution has attempted to suppress the real genesis of the
incident. Taking into consideration this aspect of the matter,
coupled with the non-explanation of the injuries sustained by
accused No. 11, accused No. 11 is entitled to benefit of doubt.       F
[Para 29][288-E-G]
      1.4 No doubt that in each and every case, delay in lodging
the FIR would not be fatal to the prosecution case. It will depend
upon facts and circumstances of each case. In the present case,
assuming that the incident had taken place at 08.30 PM and the        G
injured persons were at the Bazar between 10-11 PM, and taking
into consideration that the distance between the Bazar to the
Police Station is 15 Kms., a delay of four hours in lodging the FIR

                                                                      H
278            SUPREME COURT REPORTS                      [2023] 2 S.C.R.


A     would cast a serious doubt on the genuineness of the prosecution
      case. It becomes more glaring since accused No. 11 had, in any
      case, informed the police about the incident prior to 11.45 PM.
      The suppression of the FIR lodged by him with respect to the
      attack on him by PW-1, so also the suppression of the FIR lodged
      by PW-1 against accused No. 11, adds to the doubt. [Para 30][289-
B
      B-D]
            1.5 PWs 2 and 9 are injured witnesses. As such, their
      presence cannot be disputed. However, in case of proven previous
      enmity, a possibility of false implication cannot be ruled out. In
      the instant case, it would be seen that the entire family of accused
C     No. 12 has been roped in. Though PW-2 has identified and named
      the accused in her cross-examination, she has stated that, though
      she recognized the relatives of the accused persons, she does
      not remember their names. As such, the possibility of implicating
      the entire family of accused no.12 cannot be ruled out. [Para
D     34][291-B-C]
            1.6 The names of accused no.8, 9 and 10 are not mentioned
      in the merg report, which was lodged prior to the lodging of FIR,
      so also their names are not found in the inquest panchnama and
      spot panchnama. Taking into consideration the delay in lodging
E     the FIR, with the circumstance of their names not being mentioned
      in the contemporaneous documents, the possibility of the said
      accused being falsely implicated cannot be ruled out. The
      conviction of these accused purely on the basis of oral testimony
      of the interested witnesses, without sufficient corroboration,
      would not be sustainable. [Para 35][291-C-E]
F
            1.7 The prosecution has examined PW-3, PW-5, PW-6 and
      PW-8, none of whom have supported the prosecution case.
      According to PWs 2, 9 and 13, it was the witness PW-3 who had
      arranged for the tractor to take the injured persons to the Bazar.
      However, he has stated that though PW-2 came to his place to
G     inform him about the incident, she had not informed him as to
      which of the accused had assaulted the deceased and the injured
      persons. Thus, the said appellants would also be entitled to benefit
      of doubt. [Para 36][291-E-F]

H
NAND LAL AND OTHERS v. THE STATE OF CHHATTISGARH                       279


      Lakshmi Singh and Others v. State of Bihar (1976) 4              A
      SCC 394; State of Rajasthan v. Madho and Another
      (1991) 2 Supp SCC 396; State of M.P. v. Mishrilal
      (Dead) and Others (2003) 9 SCC 426; Nagarathinam
      and Others v. State (Represented by Inspector of Police)
      (2006) 9 SCC 57 : [2006] 3 SCR 833; Ramashish Ray
                                                                       B
      v. Jagdish Singh (2005) 10 SCC 498; Ramesh Baburao
      Devaskar and Others v. State of Maharashtra (2007)
      13 SCC 501 : [2007] 11 SCR 197; Vadivelu Thevar v.
      The State of Madras [1957] SCR 981 – referred to.
                      Case Law Reference
                                                                       C
(1976) 4 SCC 394                  referred to         Para 26
(1991) 2 Supp SCC 396             referred to         Para 27
(2003) 9 SCC 426                  referred to         Para 27
[2006] 3 SCR 833                  referred to         Para 27          D
(2005) 10 SCC 498                 referred to         Para 28
[2007] 11 SCR 197                 referred to         Para 31
[1957] SCR 981                    referred to         Para 32
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.             E
1421 of 2015.
      From the Judgment and Order dated 11.11.2014 of the High Court
of Chhattisgarh at Bilaspur in CRLA No. 529 of 2008.
      With
                                                                       F
      Criminal Appeal Nos. 1470 of 2017 and 775-776 of 2023.
     Renjith. B. Marar, Shailendra Tiwary, (A. C.), Vikas Upadhyay,
Ms. Ankita Kashyap, Renjith B., Lakshmi N. Kaimal, Ms. Ashu Jain,
Davesh Kr. Sharma, Arun Poomulli, Advs. for the Appellants.
     Sumeer Sodhi, Dhruv Wadhwa, Devashish Tiwari, Advs. for the       G
Repondent.




                                                                       H
280             SUPREME COURT REPORTS                            [2023] 2 S.C.R.


A           The Judgment of the Court was delivered by
            B. R. GAVAI, J.
            1. Leave granted in SLP(Criminal) Nos. 6134-6135 of 2019.
             2. These appeals assail the judgment and order dated 11 th
B     November 2014 passed by the Division Bench of the High Court of
      Chhattisgarh at Bilaspur, thereby dismissing the appeals filed by the
      appellants herein and confirming the judgment and order dated 24th May
      2008 passed by the Second Additional Sessions Judge, Baloda Bazar,
      District Raipur, Chhattisgarh (hereinafter referred to as “the trial court”),
      convicting the appellants along with other accused for the offences
C     punishable under Section 302 of the Indian Penal Code, 1860 (for short,
      “IPC”) along with other offences and sentencing them to undergo life
      imprisonment.
            3. The prosecution story, in brief, as could be gathered from the
      material placed on record, is thus:
D
             On the night of 3rd November 2006, at around 07.30 PM, Naresh
      Kumar, accused No. 11 had assaulted Atmaram (PW-1). After the said
      assault, Atmaram (PW-1) went to the Police Station, Suhela for lodging
      a report. Thereafter, Naresh Kumar, accused No.11 along with other
      accused, who were armed with deadly weapons, formed an unlawful
E     assembly, entered the house of deceased Kartikram and assaulted him
      as well as Mangtin Bai (PW-2) and Khomlal (PW-9). As a result of the
      said assault, Kartikram died on the spot. Thereafter, Mangtin Bai (PW-
      2), Khomlal (PW-9) and Purnima Bai (PW-13), wife, son and daughter-
      in-law of deceased Kartikram respectively, along with neighbours Baliram
F     Sahu (PW-3) and Jeevan Lal Sahu (PW-6) went in a tractor to Baloda
      Bazar to see a doctor, who refused to treat them unless a report was
      lodged at the police station. Thereafter, a jeep was hired and they went
      to the Police Station, Suhela. On the basis of the oral report (Ex. P-9), a
      merg report (Ex. P-10) came to be registered. Subsequently, the First
      Information Report (for short, “FIR”) came to be registered.
G
             4. On the basis of the said FIR, Inspector Kamal Singh (PW-14),
      Investigating Officer (IO) conducted the investigation. After conclusion
      of the investigation, a charge- sheet came to be filed against 12 accused
      persons before the Judicial Magistrate First Class, Baloda Bazar. Since
      the case was exclusively triable by the Sessions Judge, the same was
H     committed to the Sessions Court.
NAND LAL AND OTHERS v. THE STATE OF CHHATTISGARH                             281
                 [B. R. GAVAI, J.]

       5. The learned Trial Judge, vide judgment and order dated 24th        A
May 2008, convicted all the accused persons as aforesaid. The Division
Bench of the High Court, vide judgment and order dated 11th November
2014, dismissed the appeals filed by the accused persons. Challenging
the same, four appeals were filed before this Court, being Criminal Appeal
No. 1421 of 2015 by Nand Lal, Bhagwat and Ramdular, accused No. 8
                                                                             B
to 10 respectively; Criminal Appeal No. 1422 of 2015 by Paltan Jangde,
accused No. 12; Criminal Appeal No. 1470 of 2017 by Charandas Jangde,
Chhannu Jangde and Charnu Jangde, accused Nos. 5 to 7 respectively;
and appeals arising out of SLP (Criminal) Nos. 6134-6135 of 2019, which
were filed by Tulsi Jangde, Suresh Jangde, Dinesh Jangde, Rupesh Jangde
and Naresh Kumar, accused Nos. 1 to 4 and 11 respectively.                   C
       6. During the pendency of the appeals, Paltan Jangde, accused
No.12 has died and as such, the said appeal, being Criminal Appeal No.
1422 of 2015, has abated, vide this Court’s order dated 13th January
2023. Tulsi Jangde, Suresh Jangde, Dinesh Jangde, Rupesh Jangde,
Channu Jangde and Charnu Jangde, appellants in appeals arising out of        D
SLP(Criminal) Nos.6134-6135 of 2019, and Charandas Jangde, appellant
in Criminal Appeal No. 1470 of 2017, have already been released on
completion of their sentence. As such, we are concerned with the
appellants in Criminal Appeal No. 1421 of 2015 and Naresh Kumar, one
of the appellants in appeals arising out of SLP(Criminal) Nos.6134- 6135
of 2019.                                                                     E

       7. We have heard Shri Vikas Upadhyay, learned counsel appearing
on behalf of accused Nos. 8 to 10, Shri Renjith B. Marar, learned amicus
curiae and Shri Sumeer Sodhi, learned counsel appearing on behalf of
the respondent-State.
                                                                             F
       8. Shri Upadhyay submits that the names of accused Nos. 8 to
10, i.e., Nand Lal, Bhagwat and Ramdular, have not been mentioned in
any of the contemporaneous documents like the merg panchnama, inquest
panchnama and spot panchnama. He submits that, whereas the names
of all other accused have been specifically mentioned in the aforesaid
documents, there is no mention of the names of accused Nos. 8 to 10 in       G
these documents. It is for the first time that the names of these three
accused appear in the FIR. The learned counsel submits that though the
incident had occurred at 08.30 PM on 3rd November 2006, the FIR was
alleged to have been lodged at 03.10 AM on 4th November 2006, which
creates a doubt that the FIR is a fabricated document and the original       H
282             SUPREME COURT REPORTS                            [2023] 2 S.C.R.


A     FIR has been suppressed by the prosecution. He further submits that
      the inordinate delay in registering the FIR has also not been explained by
      the prosecution. The learned counsel submits that all the three witnesses
      i.e., Mangtin Bai (PW-2), Khomlal (PW-9) and Purnima Bai (PW-13)
      are interested witnesses. It is further submitted that the evidence of
      these three witnesses is also inconsistent. The learned Counsel, therefore,
B
      submits that the conviction was purely on the basis of such interested
      witnesses, whose testimony is not cogent and trustworthy, and is not
      sustainable unless there is some corroboration of their testimony.
              9. Shri Upadhyay submits that, in any case, all the three eye
      witnesses, i.e., Mangtin Bai (PW-2), Khomlal (PW-9) and Purnima Bai
C     (PW-13) have made only omnibus allegations against the appellants
      herein and no specific overt act attributable to the present appellants is
      mentioned. The learned counsel further submits that the incident happened
      at night and it is also admitted that there was a power cut. As such, the
      testimonies of all the three witnesses that they had seen the incident in
D     the moonlight and in the light of a lamp cannot be said to be trustworthy.
      It is further submitted that, since PW-9 himself had admitted that he had
      hidden himself in a grain-store (kothi), it is improbable that he has
      witnessed the incident.
             10. Shri Marar submits that as a matter of fact, Naresh Kumar,
E     accused No. 11 has received grievous injuries. It is submitted that PW-
      14, IO has admitted that Naresh Kumar, accused No. 11 had injuries on
      his head, ankle of left leg and the middle finger of his right hand. He
      submitted that even the Trial Court has found that accused No.11 Naresh
      Kumar had received grievous injuries and that he had gone to Police
      Station, Suhela to lodge the report. He lodged the report at the said
F     Police Station and, thereafter, he was sent to Bhatapara Hospital for
      treatment. It is submitted that the prosecution has not explained the injuries
      received by accused No. 11 Naresh Kumar. It is submitted that, in any
      case, the prosecution has suppressed the information received from
      accused No. 11 Naresh Kumar. It is further submitted that it is improbable
G     that accused No. 11 Naresh Kumar, after receiving such grievous injuries,
      could have taken part in the assault against the deceased and PWs 2, 9
      and 13.
            11. Shri Sodhi, on the contrary, submits that all the three eye
      witnesses have clearly implicated all the appellants. It is submitted that
H     PWs 2 and 9 have specifically implicated the present appellants. It is
NAND LAL AND OTHERS v. THE STATE OF CHHATTISGARH                             283
                 [B. R. GAVAI, J.]

submitted that all the three witnesses are rustic villagers. Therefore,      A
merely because there are some discrepancies in their evidence cannot
be a ground to reject their testimonies. He further submits that merely
because the witnesses are interested witnesses cannot be a ground to
discard their testimonies, if their evidence is found to be trustworthy,
reliable and cogent. Shri Sodhi submits that, in any case, the witnesses
                                                                             B
are injured witnesses and as such, their presence at the spot cannot be
disputed. It is further submitted that merely because there is some delay
in lodging the FIR, it cannot be a ground to discard the prosecution case,
which has been proved beyond reasonable doubt.
       12. Shri Sodhi, relying on various judgments of this Court, submits
that for a conviction under Section 302 of the IPC with the aid of Section   C
149 of the IPC, what is relevant is whether the accused was a member
of unlawful assembly, and not whether he actually took active part in the
crime or not. He further submits that mere non-explanation of injuries
on the person of the accused would not be fatal to the prosecution case.
      13. With the assistance of learned counsel for the parties, we         D
have examined the material placed on record.
       14. From the medical evidence, it cannot be disputed that the
death of deceased Kartikram is homicidal. The injuries on PWs 2 and 9
are also not seriously disputed by the appellants.
                                                                             E
       15. From the evidence of prosecution witnesses, it can be seen
that the incident has taken place in two parts. The first part is with
regard to the assault on Atmaram (PW-1) by accused No. 11 Naresh
Kumar, whereas the second part is with regard to the assault by the
accused persons on the deceased and PWs 2, 9 and 13. Atmaram (PW-
1), in his evidence, states that on 3rd November 2006, when he was at        F
his house, accused No. 11 Naresh Kumar came to his home and started
abusing him. PW-1 stated that accused No. 11 Naresh Kumar was under
the influence of liquor. Accused No. 11 Naresh Kumar told PW-1 that
he had gone to his house to make a complaint and he had extorted an
amount of Rs.5,000/- from him after plying him with alcohol. Thereafter,     G
accused No. 11 Naresh Kumar started assaulting PW-1 with the lathi in
his hand. Then, PW-1 states that accused No. 11 Naresh Kumar left his
place with a threat that he would return along with other members of his
family. It is further stated by Atmaram (PW-1) that, thereafter, he went
to lodge a report to Suhela Police Station along with his wife, son and
daughter.                                                                    H
284             SUPREME COURT REPORTS                           [2023] 2 S.C.R.


A           16. Atmaram (PW-1) further stated that when he returned from
      the Police Station, his son came and told him that PW- 1’s father was
      murdered and PW-1 again went to the Police Station to lodge the report.
      As such, it is clear that PW-1 is not an eye witness to the second incident.
             17. Mangtin Bai (PW-2) is the wife of the deceased Kartikram.
B     She, in her evidence, stated that all the accused persons had entered her
      house and started abusing them. Her husband was in the TV room. All
      the accused persons started assaulting her husband in the said TV room.
      Thereafter, they came to the second room where nobody was there.
      Her son had hidden himself in a dhan kothi. The accused persons went
      there and started assaulting her son. Thereafter, she went to inform her
C     neighbour, Jeevan Lal Sahu (PW-6). She, along with PWs 9 and 13, then
      went by a tractor to Baloda Bazar. They could not get treatment there
      since no report had been lodged with the police. They took a jeep from
      there and went to Suhela Police Station. From there, they were taken to
      Bhatapara Hospital for treatment.
D           18. In the cross-examination of Mangtin Bai (PW-2), on being
      asked as to whether she knows the relatives of the accused persons
      present in the court, she stated that she knows them but she cannot
      name them.
              19. Khomlal (PW-9) is the injured son of the deceased Kartikram.
E     His evidence is also of similar nature. He, too, testifies about the earlier
      incident pertaining to Atmaram (PW-1). He states that after Atmaram
      (PW-1) went to the Police Station at around 08.30 PM, all the accused
      persons came to his house. He states that all the accused persons entered
      the room of his father and started assaulting his father. He, therefore,
F     went to hide himself in the dhan kothi. The accused persons came
      there and assaulted him and thus, he received severe injuries. Thereafter,
      they went to Baloda Bazar for treatment. However, the doctor refused
      to treat them. As such, they went to Suhela Police Station and lodged
      the report. In his cross-examination, he admits that in the merg report
      lodged by him, there is no mention of Nand Lal, Bhagwant and Ramdular,
G     i.e., accused Nos. 8 to 10 respectively. Though he states that he had
      informed the police of all the details, it is only the police who can say
      why the names of the aforesaid three appellants are not there.
            20. Purnima (PW-13), wife of Khomal (PW-9), also states that
      Atmaram (PW-1) was going to the Police Station to lodge a report at
H     around 7:00 PM. She states that, between 8:00 PM to 8:30 PM, the
NAND LAL AND OTHERS v. THE STATE OF CHHATTISGARH                              285
                 [B. R. GAVAI, J.]

accused persons, viz. Charandad Jangde, Tulsi Jangde, Charnu Jangde,          A
Bhagwat and others, came to their house, where they first assaulted her
mother-in-law, Mangtin Bai (PW-2), with a stick. Thereafter she repeats
the same version as given by Mangtin Bai (PW-2) and Khomlal (PW-9).
       21. In his statement recorded under Section 313 of the Criminal
Procedure Code, 1973 (for short, “Cr. P.C.”), accused No. 11 Naresh           B
Kumar specifically stated that he had received grievous injuries after he
was assaulted by Atmaram (PW-1) and, thereafter, he went to the Police
Station with accused No. 7 Charnu Jangde, accused No. 12 Paltan Jangde,
Ashwini and Vinod, from where he was sent to Bhatapara Hospital for
treatment.
                                                                              C
     22. It will be pertinent to refer to the medical examination of
accused No. 11 Naresh Kumar conducted by Dr. Anita Verma
(PW-10). The injuries sustained by him are thus:
      •   “Lacerated wound of 6x1x0.5 cm on the left parietal region
          of scalp.                                                           D
      •   Multiple contusions on the back, left shoulder, left arm, varying
          in size from 5 to 20 cm in length and 2 to 4 cm in breath.
      •   Abrasion of 3x0.5 cm on left leg.
      •   Swelling, tenderness and deformity on prox. Phalanx of right
                                                                              E
          middle finger.
      •   Abrasion of 2x0.2 cm on the forehead.
      •   Abrasion of 1x0.2 cm on the left side of forehead.
      •   Abrasion of 2x0.5 cm on the right ankle.
                                                                              F
      •   Fracture of left parietal bone,
      •   Fracture in left shoulder.
      •   Fracture of proximal phalanx of middle ring finger.
      •   Fracture of shaft of fibula at junction upper 1/3rd & middle 1/
                                                                              G
          3 rd.”
      23. PW-14, IO admits that in the merg intimation report, the names
of Nand Lal, Bhagwat and Ramdular, i.e., accused Nos. 8 to 10
respectively are not mentioned. He further admits that in the spot
panchnama also, their names are not mentioned. He admits in his cross-
                                                                              H
286             SUPREME COURT REPORTS                           [2023] 2 S.C.R.


A     examination that in Ex. D-9, the incident with accused No.11 Naresh
      Kumar is mentioned to have happened at 08.30 PM on 3rd November
      2006. He further admits that accused No.11 Naresh Kumar had grievous
      injuries on his head, ankle of left leg and the middle finger of the right
      hand. He further admits that Naresh Kumar was taken from Police
      Station to the doctor for examination at 11.45 PM.
B
              24. It can thus be seen from the evidence of PW-14, IO that the
      police had information about the incident at least prior to 11.45 PM on
      3rd November 2006. No doubt that mere delay in registering FIR would
      not be fatal to the prosecution case. The effect of delay in lodging the
      FIR would differ in the facts and circumstances of each case. In the
C     present case, admittedly, accused No.11 Naresh Kumar had received
      grievous injuries which have not been explained by the prosecution. A
      specific defence has been taken by accused No.11 Naresh Kumar that
      when he was coming after consuming liquor, he was assaulted by
      Atmaram (PW-1). Thereafter, he went to the Police Station along with
D     accused No. 7 Charnu Jangde, accused No.12 Paltan Jangde, Ashwini
      and Vinod, whereafter he was referred for medical treatment. Looking
      at the injuries of accused No. 11 Naresh Kumar, it appears difficult that
      he could have taken part in the second part of the incident. The prosecution
      has suppressed the first report lodged by Atmaram (PW-1) as well as by
      accused No.11 Naresh Kumar. If Naresh Kumar was examined at 11.45
E     PM, the police must have had some information about the incident at
      least by 11.00 PM. As such, there is a delay of at least four hours in
      lodging the FIR.
             25. Believing the contents of the FIR that the incident has taken
      place at around 08.30 PM and that the injured persons had reached
F     Baloda Bazar at around 10-11 PM where they were informed that they
      could not be treated unless a report was lodged, a further delay of around
      four to five hours in lodging the FIR has not been explained. The distance
      between Baloda Bazar and Suhela Police Station is approximately 15
      Kms. It has come on record that there is an all-weather road connecting
G     the two places. As such, at the most, it would take around 30-40 minutes
      to reach Suhela Police Station from Baloda Bazar. This delay of four
      hours in lodging the FIR is not at all explained.
             26. We will first consider the issue with regard to non- explanation
      of injuries sustained by accused No. 11 Naresh Kumar. In the case of
H
NAND LAL AND OTHERS v. THE STATE OF CHHATTISGARH                                  287
                 [B. R. GAVAI, J.]

Lakshmi Singh and Others v. State of Bihar1, which case also arose                A
out of a conviction under Section 302 read with Section 149 of the IPC,
this Court had an occasion to consider the issue of non-explanation of
injuries sustained by the accused. This Court, after referring to the earlier
judgments on the issue, observed thus:
         “12. …….It seems to us that in a murder case, the non-explanation        B
         of the injuries sustained by the accused at about the time of the
         occurrence or in the course of altercation is a very important
         circumstance from which the court can draw the following
         inferences:
             “(1) that the prosecution has suppressed the genesis and the         C
             origin of the occurrence and has thus not presented the true
             version;
             (2) that the witnesses who have denied the presence of the
             injuries on the person of the accused are lying on a most
             material point and therefore their evidence is unreliable;           D
             (3) that in case there is a defence version which explains the
             injuries on the person of the accused it is rendered probable so
             as to throw doubt on the prosecution case.”
         The omission on the part of the prosecution to explain the injuries
         on the person of the accused assumes much greater importance             E
         where the evidence consists of interested or inimical witnesses or
         where the defence gives a version which competes in probability
         with that of the prosecution one. In the instant case, when it is
         held, as it must be, that the appellant Dasrath Singh received serious
         injuries which have not been explained by the prosecution, then it       F
         will be difficult for the court to rely on the evidence of PWs 1 to
         4 and 6, more particularly, when some of these witnesses have
         lied by stating that they did not see any injuries on the person of
         the accused. Thus neither the Sessions Judge nor the High Court
         appears to have given due consideration to this important lacuna
         or infirmity appearing in the prosecution case. We must hasten to        G
         add that as held by this Court in State of Gujarat v. Bai Fatima
         [(1975) 2 SCC 7 : 1975 SCC (Cri) 384] there may be cases where
         the non-explanation of the injuries by the prosecution may not
         affect the prosecution case. This principle would obviously apply
1
    (1976) 4 SCC 394                                                              H
288            SUPREME COURT REPORTS                           [2023] 2 S.C.R.


A           to cases where the injuries sustained by the accused are minor
            and superficial or where the evidence is so clear and cogent, so
            independent and disinterested, so probable, consistent and
            creditworthy, that it far outweighs the effect of the omission on
            the part of the prosecution to explain the injuries. The present,
            however, is certainly not such a case, and the High Court was,
B
            therefore, in error in brushing aside this serious infirmity in the
            prosecution case on unconvincing premises.”
            27. A similar view with regard to non-explanation of injuries has
      been taken by this Court in the cases of State of Rajasthan v. Madho
      and Another2, State of M.P. v. Mishrilal (Dead) and Others3 and
C     Nagarathinam and Others v. State (Represented by Inspector of
      Police)4.
             28. Undisputedly, in the present case, the injuries sustained by
      accused No. 11 Naresh Kumar cannot be considered to be minor or
      superficial. The witnesses are also interested witnesses, inasmuch as
D     they are close relatives of the deceased. That there was previous enmity
      between the two families, on account of election of Sarpanch, has come
      on record. As observed by this Court in the case of Ramashish Ray v.
      Jagdish Singh5, previous enmity is a double-edged sword. On one hand,
      it can provide motive and on the other hand, the possibility of false
E     implication cannot be ruled out.
             29. We have already seen herein above the injuries sustained by
      accused No. 11 Naresh Kumar. Much prior to lodging of the FIR at
      03.15 AM on 4th November 2006 by Khomlal, the Police had taken
      accused No. 11 Naresh Kumar for medical examination. The memo
F     forwarding accused No. 11 Naresh Kumar for medical examination to
      Medical Officer mentions that accused No. 11 had informed the police
      that at around 08.30 PM, he was assaulted by Atmaram (PW-1).
      Undisputedly, the prosecution has suppressed information with regard to
      the said incident. The prosecution has also suppressed the FIR lodged
      by Atmaram (PW-1). It is thus clear that the prosecution has attempted
G     to suppress the real genesis of the incident. Taking into consideration
      this aspect of the matter, coupled with the non-explanation of the injuries
      2
        1991 Supp (2) SCC 396
      3
        (2003) 9 SCC 426
      4
        (2006) 9 SCC 57
      5
H       (2005) 10 SCC 498
NAND LAL AND OTHERS v. THE STATE OF CHHATTISGARH                                  289
                 [B. R. GAVAI, J.]

sustained by accused No. 11 Naresh Kumar, we are of the considered                A
view that accused No. 11 Naresh Kumar is entitled to benefit of doubt.
       30. That leaves us with the appeal of the other 3 accused, namely
accused No. 8 Nandlal, accused No. 9 Bhagwat and accused No. 10
Ramdular. For considering their case we will have to take into
consideration the delay in lodging the FIR. No doubt that in each and             B
every case, delay in lodging the FIR would not be fatal to the prosecution
case. It will depend upon facts and circumstances of each case. In the
present case, as already discussed hereinabove, assuming that the incident
had taken place at 08.30 PM and the injured persons were at Baloda
Bazar between 10-11 PM, and taking into consideration that the distance
between Baloda Bazar to Suhela Police Station is 15 Kms., a delay of              C
four hours in lodging the FIR would cast a serious doubt on the
genuineness of the prosecution case. It becomes more glaring since
accused No. 11 Naresh Kumar had, in any case, informed the police
about the incident prior to 11.45 PM. The suppression of the FIR lodged
by him with respect to the attack on him by Atmaram (PW-1), so also               D
the suppression of the FIR lodged by Atmaram (PW-1) against accused
No. 11 Naresh Kumar, adds to the doubt.
      31. We may gainfully refer to the following observations of this
Court in the case of Ramesh Baburao Devaskar and Others v. State
of Maharashtra6:                                                                  E
         “19. In a case of this nature, enmity between two groups is
         accepted. In a situation of this nature, whether the first information
         report was ante- timed or not also requires serious consideration.
         First information report, in a case of this nature, provides for a
         valuable piece of evidence although it may not be a substantial          F
         evidence. The reason for insisting on lodging of first information
         report without undue delay is to obtain the earlier information in
         regard to the circumstances in which the crime had been
         committed, the name of the accused, the parts played by them,
         the weapons which had been used as also the names of
         eyewitnesses. Where the parties are at loggerheads and there             G
         had been instances which resulted in death of one or the other,
         lodging of a first information report is always considered to be
         vital.”

6
    (2007) 13 SCC 501                                                             H
290               SUPREME COURT REPORTS                            [2023] 2 S.C.R.


A           As held by this Court, the FIR is a valuable piece of evidence,
      although it may not be substantial evidence. The immediate lodging of
      an FIR removes suspicion with regard to over implication of number of
      persons, particularly when the case involved a fight between two groups.
      When the parties are at loggerheads, the immediate lodging of the FIR
      provides credence to the prosecution case.
B
             32. Undisputedly, the present case rests on the evidence of
      interested witnesses. No doubt that two of them are injured witnesses.
      This Court, in the case of Vadivelu Thevar v. The State of Madras7,
      has observed thus:
C              “11. ……Hence, in our opinion, it is a sound and well-established
               rule of law that the court is concerned with the quality and not
               with the quantity of the evidence necessary for proving or
               disproving a fact. Generally speaking, oral testimony in this context
               may be classified into three categories, namely:

D              (1) Wholly reliable.
               (2) Wholly unreliable.
               (3) Neither wholly reliable nor wholly unreliable.
               12. In the first category of proof, the court should have no difficulty
               in coming to its conclusion either way — it may convict or may
E
               acquit on the testimony of a single witness, if it is found to be
               above reproach or suspicion of interestedness, incompetence or
               subornation. In the second category, the court equally has no
               difficulty in coming to its conclusion. It is in the third category of
               cases, that the court has to be circumspect and has to look for
F              corroboration in material particulars by reliable testimony, direct
               or circumstantial……”
             33. It could thus be seen that in the category of “wholly reliable”
      witness, there is no difficulty for the prosecution to press for conviction
      on the basis of the testimony of such a witness. In case of “wholly
G     unreliable” witness, again, there is no difficulty, inasmuch as no conviction
      could be made on the basis of oral testimony provided by a “wholly
      unreliable” witness. The real difficulty comes in case of the third category
      of evidence which is partly reliable and partly unreliable. In such cases,
      the court is required to be circumspect and separate the chaff from the
      7
H         [1957] SCR 981
NAND LAL AND OTHERS v. THE STATE OF CHHATTISGARH                                291
                 [B. R. GAVAI, J.]

grain, and seek further corroboration from reliable testimony, direct or        A
circumstantial.
       34. Undisputedly, in the present case, PWs 2 and 9 are injured
witnesses. As such, their presence cannot be disputed. However, as
already observed hereinabove, in case of proven previous enmity, a
possibility of false implication cannot be ruled out. In the present case, it   B
would be seen that the entire family of accused No. 12 Paltan Jangde
has been roped in. Though PW-2 has identified and named the accused
in her cross-examination, she has stated that, though she recognized the
relatives of the accused persons, she does not remember their names.
As such, the possibility of implicating the entire family of Paltan cannot
be ruled out.                                                                   C

        35. As already discussed hereinabove, the names of Nand Lal,
Bhagwat and Ramdular are not mentioned in the merg report, which
was lodged prior to the lodging of FIR, so also their names are not found
in the inquest panchnama and spot panchnama. Taking into consideration
the delay in lodging the FIR, with the circumstance of their names not          D
being mentioned in the contemporaneous documents, the possibility of
the said accused being falsely implicated cannot be ruled out. In our
view, the conviction of these accused purely on the basis of oral testimony
of the interested witnesses, without sufficient corroboration, would not
be sustainable.                                                                 E
       36. The prosecution has examined Baliram Sahu (PW-3), Inder
Sahu (PW-5), Jeewan Lal (PW-6) and Budheram (PW-8), none of whom
have supported the prosecution case. According to PWs 2, 9 and 13, it
was the witness Baliram Sahu (PW-3) who had arranged for the tractor
to take the injured persons to Baloda Bazar. However, he has stated that        F
though Mangtin Bai (PW-2) came to his place to inform him about the
incident, she had not informed him as to which of the accused had
assaulted the deceased and the injured persons. In our view, therefore,
the said appellants would also be entitled to benefit of doubt.
      37. We are, therefore, of the considered view that the appellants         G
Nand Lal, Bhagwat, Ramdular and Naresh Kumar are entitled to benefit
of doubt.
       38. In the result, we pass the following order:
       (i)   The appeals are allowed;
                                                                                H
292                 SUPREME COURT REPORTS                          [2023] 2 S.C.R.


A            (ii)     The judgment and order dated 11th November 2014 passed
                      by the Division Bench of the High Court of Chhattisgarh at
                      Bilaspur, and the judgment and order dated 24th May 2008
                      passed by the trial court are quashed and set aside; and
             (iii)    The appellants are acquitted of the charges charged with
B                     and are directed to be set at liberty forthwith, if not required
                      in any other case.
             39. Pending application(s), if any, shall stand disposed of.
             40. Before we part with the judgment, we must place on record
      our appreciation for the valuable assistance rendered by Shri Vikas
C     Upadhyay, learned counsel appearing on behalf of accused Nos. 8 to 10
      and Shri Sumeer Sodhi, learned counsel appearing on behalf of the
      respondent-State. A special mention needs to be made of the painstaking
      efforts taken by Shri Renjith B. Marar, learned counsel, who was
      appointed through the Supreme Court Legal Services Authority as an
D     amicus curiae for accused No. 11.

      Nidhi Jain                                                       Appeals allowed.
      (Assisted by : Shashwat Jain, LCRA)



E




F




G




H