SHEO SHANKAR SINGHversusSTATE OF U.P.

                        [2013] 8 S.C.R. 1100


A                     SHEO SHANKAR SINGH
                                   v.
                          STATE OF U.P.
                (Criminal Appeal No. 1020 of 2004)
                            JULY 2, 2013
B
         [DR. B.S. CHAUHAN AND FAKKIR MOHAMED
                   IBRAHIM KALIFULLA, JJ.]

        Penal Code, 1860- s.302 rlw s.34 - Murder- Common
C intention - Death caused by firing gunshots - Four accused
  including the appellants - Conviction of second appellant with
   the aid of s.34 - Challenged - Held: All the four accused
   opened fire towards the deceased, who started to run and after
   the initial firing, two of the accused continued to fire pursuant
o to which the deceased fell down and finally, one of them
  ensured that the deceased lost his breath - Therefore,
  invoking of s. 34 /PC against the second appellant fully
  justified.

       Code of Criminal Procedure, 1973 - s.157 - Delay in
E sending FIR to the Magistrate - Alleged violation of s. 157 -
  Held: Mere delay in sending the FIR to the Magistrate by itself
  will not have any deteriorating effect on the case of the
  prosecution, unless serious prejudice was demonstrated to
  have been suffered as against the accused.
F
       Evidence - Witnesses - Independent witness -
  Gruesome murder in broad daylight - Two eye-witnesses,
  PWs 1 and 3, who were close relatives of the deceased - Non-
  examination of independent witnesses - Held: Not fatal in the
G facts and circumstances of the instant case - When
  Investigating officer approached the witnesses other than
  PWs 1 and 3, none of them were prepared to come and give
  evidence in the Court and they were not even prepared to
  disclose their names - Having regard to the background of
H                            1100
      SHEO SHANKAR SINGH v. STATE OF U.P.                 1101


the accused party who were notorious criminals, none of them      A
were prepared to risk their life and give evidence in the Court
- Mere non-examination of independent witnesses in
absence of any lacuna in the evidences of P. Ws. 1 and 3, not
disastrous to the case of the prosecution.
                                                                  B
     Evidence - Recovery evidence - Deceased stopped by
the accused persons when he was travelling in a motorcycle
and then done to death - Non-recovery of the motorcycle -
Effect - Held: On facts, no fault can be found with the
prosecution on that score - According to the prosecution, the     C
motorcycle was stealthily removed by the accused after
committing the crime - PWB stated that the vehicle was
dismantled and disposed of in Kabarkhana - Moreover, it was
brought out in evidence through PW1, as well as PW3 and
the injury found on the body of PW1 as mentioned by the
Doctor who examined him viz., PW2 that the injuries sustained     D
by PW1 were due to his fall from a running motorcycle.

      The prosecution case was that when 'L' was
travelling as a pillion rider alongwith his son (PW1) in a
motorcycle, the accused persons stopped the motorcycle            E
and fired at 'L' with revolver/country made pistols which
resulted in his death, and then fled away. The incident
allegedly occurred on account of a long-standing
grievance of the accused party against the deceased.
Placing reliance upon the evidences of PW1 and                    F
PW3(brother of the deceased), the trial court convicted
all the accused persons including the appellants under
Section 302 rlw Section 34 IPC and sentenced them to
life imprisonment. The appellants were further convicted
under Section 379 IPC. The conviction of appellants was           G
affirmed by the High Court.

    In the instant appeal, the appellants challenged their
conviction inter alia on grounds of: 1) non-examination
of eyewitnesses other than PWs 1 & 3; 2) non-recovery
of the motorcycle; and 3) non-consideration of the                H
    1102    SUPREME COURT REPORTS              (2013] 8 S.C.R.


A evidence of P.W.8 about the motorcycle.

        Dismissing the appeals, the Court

        HELD: 1. The Trial Court noted that according to the
    investigating officer, when he approached the witnesses
B   other than PWs 1 and 3, none of them were prepared to
    come and give evidence in the Court and that they were
    not even prepared to disclose their names and that
    having regard to the background of the accused party
    who were notorious criminals, none of them were
C   prepared to risk their life and give evidence in the Court.
    The Trial Court also noted that the crime committed by
    the appellants in shooting the deceased to death in the
    broad day ligl'lt was so gruesome, there was a fear
    complex set in the minds of the people around that place
D   and, therefore., mere non-examination of the other
    independent witnesses in the absence of any lacuna in
    the evidences of P.Ws.1 and 3, cannot be held to be
    disastrous to the case of the prosecution. The said view
    was fully approved by the High Court and there is no
E   reason~o take a different view than what has been held
    by the courts below. [Para 16] [1111-C-F]

        2. According to P.W.8, he was the original owner of
    the vehicle and that he sold the said vehicle to the
    deceased. The evidence of P.W.8, in so far as it related
F to the sale of the vehicle in favour of the deceased is
    concerned, the same is borne out by Exs.Ka29, Ka30 and
    Ka31. Ex.Ka29 is a receipt for Rs.6,000/-. Ex.Ka30 is
    delivery proof by way of information to the Regional
    Transport Officer and Ex.Ka31 is the transfer document.
G So far as non-production of the vehicle is concerned,
    even according to the prosecution, the vehicle was
    stealthily removed by the accused after committing the
    crime of killing of the deceased. P.W.8 stated that the
  · vehicle was dismantled and disposed of in Kabarkhana.
H Therefore, if the prosecution was not able to produce the
      SHEO SHANKAR SINGH v. STATE OF U.P.            1103


vehicle for the above stated reasons, no fault can be       A
found with the prosecution on that score. When it is
brought out in evidence through P.W.1, as well as P.W.3
and the injury found on the body of P.W.1 as mentioned
by the Doctor who examined him viz., P.W.2 that the
injuries sustained by P.W.1 were due to his fall from a     B
running motorcycle, no discrepancy is found in the
evidence placed before the Court in that respect. [Paras
18 and 19] [1112-A, C-D, E-H]

     3. As far as the plea made on behalf of the appellant · C
 in Crl.A.No.1020 of 2004 that he was not present at the
time of the occurrence and that he was attending a
wedding in the place of D.W.1 is concerned, it was a
desperate attempt made on behalf of the appellant by
raising the plea of alibi, which was rightly rejected by the
Courts below. When one considers the version of D.W.1 D
in the absence of any proof of wedding taken place either
by way of production of invitation card or the proof of
registration of the marriage of his daughter with any
statutory authority or any other supporting evidence, it
will be highly risky to rely upon such a feeble evidence E
in order to accept the plea of alibi to discharge the
appellant from the alleged crime. The eyewitnesses to the
incident specifically made a mention about the presence
of the appellant in Crl.A.No.1020 of 2004 and the overt act
alleged against him in the matter of killing of the F
deceased. The appellant was closely related to the first
accused and was stated to have been hand in glove in
the elimination of the deceased. Having regard to the
various missing links and lack of sufficient materials to
support the version of D.W.1, the Trial Court rightly G
rejected the said defence plea on behalf of the appellant
in Crl.A.No.1020 of 2004, which was also approved by the
High Court in the impugned judgment. [Paras 20, 22]
[1113-A-B, G-H; 1114-A-C]
                                                            H
    1104   SUPREME COURT REPORTS                (2013] 8 !::i.C.k.


A      4. Inasmuch as the plea that there could not have
  been any scope to invoke Section 34 IPC against the
  appellant in Crl.A. No.1021 of 2004 i.e. Sarvajit Singh is
  concerned, it is clear from the evidence of PW.3 that the
  deceased was made to run by all the four accused who
B were holding weapons and all the four of them were firing
  towards the deceased. PW-3 would further state that
  while initially all the four were firing towards the deceased,
  subsequently two of them viz., Ranjit Singh and Shiv
  Shankar Singh, continued to fire towards the deceased
c and at the end, Ranjit Singh alone fired indiscriminately
  in order to ensure that the deceased succumbed to the
  injuries. Therefore, it is not as if P.W.3 has merely stated
  that except two of the accused, the others did not fire at
  the deceased. According to him, all the four accused
  opened fire towards the deceased, who started to run and
0
  after the initial firing, two o·f the accused continued to fire
  pursuant to which the deceased fell down and finally,
  Ranjit Singh ensured that the deceased lost his breath.
  Therefore, invoking of Section 34 IPC was fully made out.
E [Paras 27, 28, 29] [1115-E-F; 1116-E-H]
        Md. Rustam alias Rustam vs. The State of Bihar AIR
    2003 SC 562:2002 (10) SCC 273 - referred to.
       5. One other submission made was that in the
  absence of any proof of forwarding the FIR copy to the
F jurisdiction Magistrate, violation of Section 157 of Cr.P.C.
  has crept in and thereby, the very registration of the F.1.R.
  becomes doubtful. The said submission will have to be
  rejected, inasmuch as the F.l.R. placed before the Court
  discloses that the same was reported at 4.00 p.m. on
G 13.06.1979 and was forwarded on the very next day viz.,
  14.06.1979. Further, a perusal of the impugned judgments
  of the High Court, as well as the Trial Court discloses that
  no case of any prejudice was shown nor even raised on
  behalf of the appellants based on alleged violation of
H Section 157 Cr.P .C. Unless serious prejudice was
     SHEO SHAN KAR SINGH v. STATE OF U.P.                1105


demonstrated to have been suffered as against the                A
accused, mere delay in sending the F.l.R. to the Magistrate
by itself will not have any deteriorating effect on the case
of the prosecution. [Para 30] (1117-B-E]

    Sandeep vs. State of Uttar Pradesh (2012) 6 SCC 107:
                                                                 B
2012 (5) SCR 952 - relied on.

                     Case Law Reference:
    2002 (10) sec 213           referred to         Para 27
    2012 (5) SCR 952            relied on            Para 30     C
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1020 of 2004.

    From the Judgment and Order dated 26.09.2003 of the
High Court of Judicature at Allahabad in Criminal Appeal No.     D
815 of 1981.
                              WITH
Crl. Appeal No. 1021 of 2004.
                                                                 E
   Mahavir Singh, Nagendra Rai, Shailendra Singh, Rajesh
Kumar, Yashpal Singh, Sanjay Jain for the Appellant.

    Vivek Vishnoi, Gaurav Agarwal, M.R. Shamshad for the
Respondent.
                                                                 F
    The Judgment of the Court was delivered by

     FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. These
appeals arise out of the common judgment dated 26.09.2003,
by the High Court of Allahabad in Criminal Appeal Nos.814 and    G
815of1981.

    2. The appellant in Crl.A.No.814 of 1981 before the High
Court is the appellant before this Court in Crl.A.No.1021 of
2004. The second appellant in Crl.A.No.815of198·1 before the
High Court is the appellant before this Court in Crl.A.No.1020   H
    1106    SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A of 2004. The appellant in Crl.A.No.1020 of 2004, as well as one
  Harihar Singh were tried in Sessions Trial No.164 of 1979 and
  the appellant in Crl.A.No.1021 of 2004, was tried in Sessions
  Trial No.228 of 1979. All the accused were charged for an
  offence under Section 302 read with Section 34 of l.P.C. The
B present appellant in Crl.A.No.1020 of 2004, as well as the
  appellant in Crl.A.No.1021 of 2004 were further charged for an
  offence under Section 379 of l.P.C. All the three accused were
  awarded life imprisonment for the charge under Section 302
  read with Section 34 of l.P.C. and the present appellants in
c these two appeals were further awarded two years rigorous
  imprisonment for the charge under Section 379 of l.P.C. When
  Crl.A.No.815 of 1981 was pending before the High Court, the
  first appellant Harihar Singh expired and his appeal, therefore,
  stood abated as against him as per the order of the High Court
  dated 11.02.2002.
0
         3. It is in the above stated background, as on date, the
    appeal relating to Sheo Shankar Singh, the appellant in
    Crl.A.No.1020 of 2004 and Sarvajit Singh@ Sobhu, appellant
    in Crl.A.No.1021 of 2004, only survive for consideration.
E
       4. As the story of the prosecution goes, on 13.06.1979 at
  3.30 p.m. at Badhwa Chau Muhanion Kachcha Road, by the
  side of the godown of the Irrigation Department near the hovel
  of Vinod, the deceased Lorik was travelling along with P.W.1
F Rakesh Kumar his son, in a motorcycle bearing No.UTH 1287
  as a pillion rider. The accused Ranjit Singh along with his father
  Harihar Singh, his brother Sarvajit Singh @ Sobhu and cousin
  Sheo Shankar Singh alleged to have pounced upon P.W.1
  Rakesh Kumar and the deceased Lorik and stopped their
  motorcycle by catching hold of its carrier. While P.W.1
G attempted to drive fast, the accused Harihar Singh exhorted his
  associates to kill the deceased, whereupon, Ranjit Singh is
  stated to have fired a shot and the same hit t.he deceased Lorik
  on his back. After receivjng the injuries, the deceased Lorik
  stated to have jumped from the motorcycle and ran away
H
  SHEO SHANKAR SINGH v. STATE OF U.P. [FAKKIR 1107
        MOHAMED IBRAHIM KALIFULLA, J.]

 shouting for help. As the deceased Lorik jumped from the           A
 motorcycle, P.W.1 Rakesh Kumar lost his balance, fell down
 and got his leg injured. Ranjit Singh armed with a revolver and
 the remaining three accused with country made pistols, stated
 to have attacked the deceased Lorik by firing at him with their
 "Yeapons and on receiving the injuries, Lorik fell down a few      B
 paces ahead and when Ranjit Singh fired again, the deceased
 is stated to have succumbed to the injuries instantaneously.
 Thereafter, Ranjit Singh and the appellants stated to have fled
 away from the scene of occurrence in the motorcycle belonging
 to P .W.1 Rakesh Kumar while Harihar Singh stated to have ran      c
 away from the scene of occurrence.

      5. On hearing the hue and cry, Ramjit (PW3) and Shyam
 Raj, uncles of P.W.1 Rakesh Kumar and one Sheo Narain, who
 stated to have witnessed the incident, reached the spot. P .W.1
 lodged the F.l.R. at Kotwali Police Station at 4.00 P.M., on the   D
 same day. The police registered a case in the General Diary
 and the same is marked as Exs.Ka12 and Ka13. The inquest
 report prepared by the Investigating Officer (P.W.7) was
 marked as Ex.Ka14. The site plan map was marked as
 Ex.Ka19. Dr.Virendra Srivastava at the District Hospital,          E
 Ghazipur conducted the autopsy on the body of the deceased
 on 14.06.1979 at 12.45 p.m. Blood stained clothes and earth
 was sent for Serologist opinion and the blood group was noted
 as '8' as per Exs.Ka32 and Ka33.
                                                                    F
       6. P.Ws.1 and 3, Rakesh Kumar and Ramjit son and
  brother of the deceased, were examined as eyewitnesses.
· Dr.P.N.,Tandon, Medical Officer at Ghazipur District Hospital,
  was examined as P.W.2. P.W.2 examined P.W.1 at 4.30 p.m.
  and the injury report was marked as Ex.Ka4. The postmortem        G
  report issued by P.W.4-Dr.Virendra Srivastava, was marked
  as Ex.Ka11. In the Section 313 questioning, while all the other
  accused pleaded not guilty and claimed to be falsely implicated
  on account of enmity, accused Shea Shankar Singh contended
  that on the date of occurrence, he had gone to attend a
                                                                    H
    1108    SUPREME COURT REPORTS                 [2013] 8 S C.R


A marriage in the house of D.W 1 Kanhaiya Singh at Singheri
  village, falli11g within the limits of Madganj Police Station,
  Ghazipur district.

         7 Based on the evidence placed before the Tnal Court,
    the Trial Court convicted the accused. Aggrieved over the same,
8
    they preferred appeals before the High Court in Crl.ANos.814
    and 815 of 1981 and the High Court having dismissed the
    appeals, the appellants are before us.

      8. We heard Mr.Mahavir Singh, learned senior counsel
C appearing for the appellant in Crl.A.No.1020 of 2004 and
  Mr.Nagendra Rai learned senior counsel appearing for the
  appellant in Crl.A.No.1021 of 2004. The State was represented
  by Mr.Vivek Vishnoi learned Standing Counsel for the State.

D       9. The sum and substance of the submissions made on
  behalf of the appellants was that the non-recovery of the
  weapons and the motorcycle disproves the case of the
  prosecution. The non-examination of the so-called other
  eyewitnesses whose statements were recorded under Section
E 161 of Cr.P.C., would belie the case of the prosecution. The
  non-consideration of the evidence of P.W.8 about the
  motorcycle, also vitiates the case of the prosecution. The
  serious discrepancies, such as non-mentioning of the crime
  number and name in the vital documents, as admitted by the
  Investigating Officer, create serious doubt about the case put-
F forth by the prosecution. Since, admittedly the deceased Lorik
  was a history-sheeter and since no independent eyewitnesses
  were examined who were stated to be present at the time of
  occurrence, it will have to be held that the prosecution roped
  in the appellants in a case of blind murder. Therefore, it was
G contended for all the above discrepancies and the evidence of
  the prosecution, not been properly appreciated either by the
  Trial Court or by the High Court, the judgments impugned are
  liable to be set aside.

H       10. As against the above submissions, the learned
 SHEO SHANKAR SINGH v ~lATE OF UP [FAKKIH 1109
       MOHAMED 18RAHIM K/\Ll~UL'...I\ J ]

Counsel appearing for the State would point out that none of         A
the submissions made on behalf of the appellants merit
consideration, inasmuch as. the Trial Court, as well as. the High
Court have met each one of the submissions effectively, while
rejecting those submissions.
                                                                     B
     11. The learned counsel appearing for the State also took
us through the evidence of eyewitnesses P Ws.1 and 3, the
evidence of the Doctor P.W.2, the injuries sustained by P.W. 1,
as well as the deceased and submitted that in the case on
hand, the case of the prosecution is supported by medical
evidence as well and that, the motive for the crime has been
                                                                     c
substantially established by the prosecution. The learned State
counsel, therefore, contended that none of the submissions
made by the learned senior counsel appearing for the
appellants merited any consideration.
                                                                     D
       12. Having heard the learned senior counsel for the
respective appellants, the counsel for the State and having
perused the impugned judgments of the High Court, as well as
that of the Trial Court and all other material papers, before
considering the submissions made on behalf of the appellants,        E
it will be necessary io refer to the motive for the crime, as well
as the injuries found on the body of the deceased and P.W.1
for appreciating the submissions.

      13. As far as the motive is concerned, according to the
prosecution, one Raja of Ausanganj, a Zamindar, owned huge           F
properties with whom one Mukhchand, father of the deceased
Lorik, was employed as a gardener. On being satisfied with
the services of the said Mukhchand, the Zamindar gave him a
land for raising construction. Further as salary could not be paid
to the said Mukhchand by the Zamindar, the Zamindar allowed          G
him to segregate six bighas of land from the forest belonging
to the Zamindar for cultivation. The said Mukhchand cleared off
six bighas of land from the forest and stated to have started
cultivating the same and after his death, his son one Basu,
started working with the Zamindar. Since the price of the land       H
    1110    SUPREME COURT REPORTS                [2013] 8 S.C.R.


A increased by metes and bounds, the Zamindar wanted to
  reclaim the land, which ended in a prolonged litigation and
  ultimately the deceased and his brother stated to have
  succeeded in retaining the land. Irked by the above result, the
  Zamindar who was nurturing a grievance stated to have set up
B the accused who were local gundas to get rid of the deceased,
  his brother and his family members from the lands. It is stated
  that the accused started intimidating the family members of the
  deceased, which gave rise to frequent confrontation among the
  accused party and the party of the deceased, who wanted to
c protect their property.
        14. On 13.08.1974, the deceased along with his
  associates is stated to have assaulted the accused Harihar
  Singh and a criminal case was also lodged against him. It was
  in the above stated background, it is stated that the accused
D party headed by Harihar Singh, who were nurturing a long-
  standing grievance against the deceased, engineered a plot
  to eliminate him, which resulted in the ultimate murder of the
  deceased. The above fact was brought about in evidence
  through P.W.3 and the Courts below have noted that while
E cross-examining him, the said narration of facts relating to the
  motive could be ascertained.

       15. Keeping the above factors in mind and the alleged
  crime committed by the appellants, when we deal with the
F submissions of the learned senior counsel appearing for the
  appellants, according to the learned counsel, it was a case of
  blind murder since the deceased Lorik himself was a history-
  sheeter, which has come out in the evidence of P.W.7, the
  Investigating Officer himself and, therefore, the appellants and
G the other accused were conveniently roped in taking advantage
  of the earlier tussle as between the appellants and the
  deceased. According to the learned senior counsel, as per the
  evidence of the Investigating Officer himself, at the time of
  inspection of the place of occurrence, apart from P.Ws. 1 and
  3, the statement of one Somraj and Shiv Narayan were
H
 SHEO SHANKAR SINGH v. STATE OF U.P. [FAKKIR 1111
       MOHAMED IBRAHIM KALIFULLA, J.]

recorded, but both of them were not produced before the Court.          A
It was, therefore, contended that by examining the close
relatives of the deceased alone and by not examining those
independent witnesses, it will have to be held that the case of
the prosecution was manipulated and that the reliance placed
upon the so called eye witnesses viz., P.Ws. 1 and 3, should            B
not have formed the basis for the ultimate conviction of the
appellants.

       16. In fact, the Trial Court, as well as the High Court have
 specifically dealt with this very contention. The Trial Court, while   C
 considering the said submission, has noted that according to
 the investigating officer, when he approached those other
 witnesses, none of them were prepared to come and give
 evidence in the Court and that they were not even prepared to
 disclose their names and that having regard to the background
 of the. accused party who were notorious criminals, none of            D
 them were prepared to risk their life and give evidence in the
 Court. The Trial Court has also noted that the crime committed
 by the appellants in shooting. the deceased to death in the
 broad day light was so gruesome, there was a fear complex
 set in the minds of the people around that place and, therefore,       E
 mere non-examination of the other independent witnesses in
 the absence of any lacuna in the evidences of P.Ws.1 and 3,
·cannot be held to be disastrous to the case of the prosecution.
The said view was fully approved by the High Court and, in our
 considered opinion, there is no reason to take a different view        F
than what has been held by the Courts below. The said
submission of the learned senior counsel, therefore, stands
 rejected.

     17. It was then contended that the material evidence viz.,         G
the motorcycle in which the deceased is stated to have travelled
as a pillion rider along with his son P.W.1, was not produced
and that in that context, the evidence of P.W.8 was not properly
appreciated by the Courts below.
                                                                        H
                                                         -   .
    1112    SUPREME COURT REPORTS                 [2013] 8 SC.R


A      18. When we refer to the evidence of P.W.8, we find that
  according to him, he was the original owner of the vehicle and
  that he sold the said vehicle to the deceased, which was
  supported by Exs.Ka29, Ka30 and Ka31 In the cross-
  examination, he stated that the vehicle was in the possession
B of the deceased for 10 to 12 days and that due to non-payment
  of the remaining amount, he took possession from the
  deceased and that ultimately he dismantled the vehicle and
  disposed it of in Kabarkhana.

         19. The evidence of P.W.8, in so far as it related to the
C sale of the vehicle in favour of the deceased is concerned. the
  same is borne out by Exs.Ka29, Ka30 and Ka31. Ex.Ka29 is
  a receipt for Rs.6,000/-. Ex.Ka30 is delivery proof by way of
  information to the Regional Transport Officer and Ex.Ka31 is
  the transfer document. Therefore, going by the initial statements
D of P.W.8 and the above referred three documents, the fact was
  brought forth without any scope of contradiction that the vehicle
  was sold to the deceased Lorik. Insofar as the statement of
  P.W.8 that due to non-payment, he took back the vehicle is
  concerned, except his ipse dixit, there is nothing on record to
E support the said version. So far as non-production of the vehicle
  is concerned, even according to the prosecution, the vehicle
  was stealthily removed by the accused after committing the
  crime of killing of the deceased. P.W.8 stated that the vehicle
  was dismantled and disposed of in Kabarkhana. Therefore, if
F the prosecution was not able to produce the vehicle for the
  above stated reasons, no fault can be found with the
  prosecution on that score. When it is brought out in evidence
  through P.W.1, as well as P.W.3 and the injury found on the
  body of P.W.1 as mentioned by the Doctor who examined him
G viz., P.W.2 that the injuries sustained by P.W.1 were due to his
  fall from a running motorcycle, we do not find any discrepancy
  in the evidence placed before the Court in that respect.
  Therefore, the said submission of the learned senior counsel
  also does not impress upon us to take a different view than
H what has been held by the Courts below.
 SHEO SHANKAR SINGH v. STATE OF U.P. [FAKKIR 1113
       MOHAMED IBRAHIM KALIFULLA, J.]

     20. As far as the plea made on behalf of the appellant in         A
Crl.A.No.1020 of 2004 that he was not present at the time of
the occurrence and that he was attending a wedding in the place
of D.W.1 is concerned, we find that it was a desperate attempt
made on behalf of the appellant by raising the plea of alibi,
which was rightly rejected by the Courts below.                        B

      21. We have perused the evidence of D.W.1. We find that
 his evidence was not precise in its substance in order to rely
 upon the same for accepting the plea of alibi. According to
 D.W.1, his daughter got married on 12.06.1979 and that the            C
marriage party had arrived on 12.06.1979 and left his house
on 14.06.1979. As far as the appellant in Crl.A.No.1020 of 2004
is concerned, according to D.W.1, though he was not related
to him, his acquaintance was through his grandfather and his
father and because of the said long standing friendship, the
appellant stayed in his house at 12.30 hours on 13.06.1979 and         D
left his house only by 5.00 P.M. on the said date. D.W.1 was
tendered for examination on 03.03.1981 i.e., nearly 1% years
after the date of occurrence. In the cross examination, he
admitted that nearly 400 people attended the wedding and that
he is not in a position to state as to who came at what time           E
and remained in the premises, where the wedding was held.
He would further admit that from the village to which the
appellant belonged viz., Ghazipur, except the appellant, nobody
else were known to him. He also claimed that the appellant
gifted Rs.51/- to his daughter, which was recorded in a sheet          F
of paper. He is stated to have mentioned about the said fact
to many others in his village.

     22. When we considered the above version of D.W.1 in
the absence of any proof of wedding taken place either by way          G
of production of invitation card or the proof of registration of the
marriage of his daughter with any statutory authority or any other
supporting evidence, it will be highly risky to rely upon such a
feeble evidence in order to accept the plea of alibi to discharge
the appellant from the alleged crime. It will have to be borne in
                                                                       H
    1114    SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A mind that the eyewitnesses to the incident specifically made a
  mention about the presence of the appellant in Crl.A.No.1020
  of 2004 and the overt act alleged against him in the matter of
  killing of the deceased. The appellant was closely related to the
  first accused and was stated to have been hand in glove in the
s elimination of the deceased. Having regard to the various
  missing links and lack of sufficient materials to support the
  version of D.W.1, the Trial Court rightly rejected the said
  defence plea on behalf of the appellant in Crl.A.No.1020 of
  2004, which was also approved by the High Court in the
c impugned judgment. We are also fully convinced of the above
  conclusion and we are not inclined to disturb the same.

       23. Submissions were made on behalf of the appellants
  that there were serious lacunae in the registration of the F.l.R.
  and its dispatch and, therefore, the Courts below should not
D have accepted the case of the prosecution.

       24. When we perused the F.l.R. placed before us in the
  additional documents, we find that while the occurrence had
  taken place at 3.30 p.m. on 13.06.1979, the same was reported
E at 1600 hours on the same date. The police station is hardly a
  mile away in the western direction of the place of occurrence.
  It is also noted in the F.l.R that after registration, it was
  dispatched from the police station on 14.06.1979.

        25. The learned counsel appearing for the State brought
F to our notice that as far as the dispatch is concerned, even as
  per the column found in the F.l.R., only the date of dispatch is
  required to be noted and not the time, as compared to the date
  and time to be recorded as regards the reporting of the crime.
  Therefore, due to non-mentioning of the time of dispatch, no
G fault can be found as regards the registration of the F.l.R.

       26. The trial Court has noted that while the prosecution
  claimed that the occurrence took place at 3.30 P.M., the
  medical records and the evidence of P.W.2 Dr.P.N.Tandon,
H discloses that P.W.1 was examined by him on the same day
 SHEO SHANKAR SINGH v. STATE OF U.P. [FAKKIR 1115
       MOHAMED IBRAHIM KALIFULLA, J.]

viz., 13.06.1979 at 4.30 P.M. The Doctor has noted that the          A
injury was fresh and that it could have occurred within six-hour
duration. The Doctor also specifically answered to a question
put to him that the injury could have happened at 3.30 p.m. on
that day. In the course of cross examination, when the Doctor
was asked as to how he was so very definite as to the freshness      B
of the injury, the Doctor explained by stating that the freshness
of the swelling can be known by the difference in the
temperature at the spot of the swelling, as compared to the
temperature in the rest of the portion of the body. The Doctor
who is an independent witness/officer can have no inner reason       c
to depose against the appellants. In the said circumstances,
there can be no reason to doubt the registration of the F.l.R.,
as contended on behalf of the appellants. The said contention
of the appellants also, therefore, do not merit any consideration.

      27. On behalf of the appellants, it was also contended that    D
going by the evidence of P.W.1, the deceased and P.W.1
started from their residence as directed by the deceased
towards the place of occurrence and that P.W.1 was not aware
for what purpose the deceased started from the house and was
proceeding in that direction. The learned senior counsel             E
contended that if in the said situation, the occurrence had taken
place, there could have been no scope at all to invoke Section
34, as against the accused in Crl.A.No.1021 of 2004, against
whom there was no specific overt act. In that context, the
learned senior counsel contended that while it was specifically      F
alleged that the first accused Harihar Singh and the other
accused opened fire towards the deceased, there was no
reference to the appellant in Crl.A.No.1021 of 2004 to state that
he used the weapon to the effect that he fired at the deceased.
The learned senior counsel referred to the evidence of P.W.1,        G
as well as P.W.3 and pointed out that while P.W.1 has stated
that in the F.l.R., all the accused fired towards the deceased,
P.W.3 made it clear that out of the four accused, two alone
indulged in firing and that the appellant in Crl.No.1021 of 2004
viz., Sarvajit Singh did not involve himself in any such firing      H
    1116    SUPREME COURT REPORTS                  [2013] 8 S.C.R


A activity. The learned senior counsel, therefore, contended that
  when out of several persons, only one person opened firing,
  common intention cannot be held to have been made out. The
  learned senior counsel relied upon a decision of this Court in
  Md. Rustam alias Rustam vs. The State of Bihar reported in
B AIR 2003 SC 562 for that purpose.

          28. Having perused the evidence of P.W.3, we find that
    he did not state that all the accused, including Sarvajit Singh
    made his brother Lorik to run, when Ranjit Singh was holding
C   the revolver and the remaining three were holding country made
    pistols in their hands. He further stated that out of the four
    persons, two were firing viz., Ranjit Singh and Shiv Shankar
    Singh and on suffering the injuries the deceased fell down that
    while Ranjit Singh continued to fire and that where after the
    deceased died. After the above said firing and the death of the
D   deceased, while Harihar Singh is stated to have proceeded
    towards South by foot, the other three stated to have fled away
    in the motorcycle in which the deceased and P.W.1 travelled.
    Accepting the said version of P W.3, we find that there was a
    specific statement made to the effect that the deceased was
E   made to run by all the four accused who were holding weapons
    and all the four of them were firing towards the deceased. He
    would further state that while initially all the four were firing
    towards the deceased, subsequently two of them viz., Ranjit
    Singh and Shiv Shankar Singh, continued to fire towards the
F   deceased and at the end, Ranjit Singh alone fired
    indiscriminately in order to ensure that the deceased
    succumbed to the injuries. Therefore, it is not as if P.W.3 has
    merely stated that except two of the accused, the others did
    not fire at the deceased. According to him, all the four accused
G   opened fire towards the deceased, who started to run and after
    the initial firing, two of the accused continued to fire pursuant
    to which the deceased fell down and finally, Ranjit Singh
    ensured that the deceased lost his breath.

        29. Therefore, invoking of Section 34 was fully made out
H
 SHEO SHANKAR SINGH v. STATE OF U.P. [FAKKIR 1117
       MOHAMED IBRAHIM KALIFULLA, J.]

and the submissions to the contrary cannot be countenanced.            A
The decision relied upon by the learned senior counsel,
therefore, does not in any way support the case of the
appellants.

      30. One other submission made on behalf of the
                                                                       8
appellants was that in the absence of any proof of forwarding
the F.l.R. copy to the jurisdiction Magistrate, violation of Section
157 of Cr.P.C. has crept in and thereby, the very registration
of the F.l.R. becomes doubtful. The said submission will have
to be rejected, in as much as the F.l.R. placed before the Court       C
discloses that the same was reported at 4.00 p.m. on
13.06.1979 and was forwarded on the very next day viz.,
14.06.1979. Further, a perusal of the impugned judgments of
the High Court, as well as the Trial Court discloses that no case
of any prejudice was shown nor even raised on behalf of the
appellants based on alleged violation of Section 157 Cr.P.C.           D
Time and again, this Court has held that unless serious
prejudice was demonstrated to have been suffered as against
the accused, mere delay in sending the F.l.R. to the Magistrate
by itself will not have any deteriorating effect on the case of the
prosecution. Therefore, the said submission made on behalf             E
of the appellants cannot be sustained. In this context, we would
like to refer to a recent decision of this Court in Sandeep vs.
State of Uttar Pradesh reported in (2012) 6 SCC 107 wherein
the said position has been explained as under in paragraph
Nos.62 and 63 :                                                        F

     "62. It was also feebly contended on behalf of the
     appellants that the express report was not forwarded to
     the Magistrate as stipulated under Section 157, Cr.P.C.
     instantaneously. According to learned counsel FIR which           G
     was initially registered on 17.11.2004 was given a number
     on 19.11.2004 as FIR No.116 of 2004 and it was altered
     on 20.11.2004 and was forwarded only on 25.11.2004 to
     the Magistrate. As far as the said contention is concerned,
     we only wish to refer to the reported decision of this Court      H
    1118    SUPREME COURT REPORTS                   [2013) 8 S.C.R.


A       in Pala Singh and Another v State of Punjab wherein
        this Court has clearly held that (SCC p 645, para 8)
        where the FIR was actually recorded without delay and
        the investigation started on the basis of that FIR and there
        is no other infirmity brought to the notice of the Court
B       then, however improper or objectionable the delay in
        receipt of the report by the Magistrate concerned be, in
        the absence of any prejudice to the accused it cannot by
        itself justify the conclusion that the investigation was
        tainted and the prosecution insupportable.
c       63. Applying the above ratio in Pala Singh to the case
        on hand, while pointing out the delay in the forwarding of
        the FIR to the Magistrate, no prejudice was said to have
        been caused to the appellants by virtue of the said delay.
        As far as the commencement of the investigation is
D       concerned, our earlier detailed discussion discloses that
        there was no dearth in that aspect. In such circumstances
        we do not find any infirmity in the case of the prosecution
        on that score. In fact the above decision was
        subsequently followed in Sarwan Singh & Ors. Vs. State
E       of Punjab, Anil Rai Vs. State of Bihar and Aqeel Ahmad
        Vs. State of U.P."
        31. Having regard to our above conclusions, we do not find
    any merit in these appeals. The appeals fail and the same are
F   dismissed.

         32. The appellants are on bail. The bail bonds stand
    cancelled and they shall be taken into custody forthwith to serve
    out the remaining part of sentence, if any.

G B.B.B.                                       Appeals dismissed.