SRI SAMBHU DAS @ BIJOY DAS & ANR.versusSTATE OF ASSAM

                 [2010] 11 S.C.R. 493


        SRI SAMBHU DAS @ BIJOY DAS & ANR.                         A
                              v.
                     STAIE OF ASSAM
             (Criminal Appeal No. 342 of 2007)
                   SEPTEMBER 15, 2010
                                                                  B
 [DR. MUKUNDAKAM SHARMA AND H.L. DATTU, JJ.]

     Penal Code, 1860: s. 302134 - Murder - Conviction
based on evidence of eye-witnesses - Concurrent findings of
courts below - Interference with ~ Held: No reason to upset       C
the concurrent findings of courts below - The evidence of eye~
witness was corroborated by the investigating officer and the
post-mortem report and was found to be trustworthy and
reliable - Merely because some persons were not examined
would not corrode the vitality of the prosecution version,        D
particularly, when witnesses examined withstood the cross-
ex am ination and pointed to the accused persons as
perpetrators of the crime - Constitution of India, 1950 -
Art.136 - Evidence.
                                                                  E
      Constitution of India, 1950: Art. 136 - Scope of - Held:
Art. 136 only confers a discretionary power on the Supreme
Court to be exercised sparingly to interfere in suitable cases
where grave miscarriage of justice has resulted from illegality
or misapprehension or mistake in reading evidence or from
ignoring; excluding or illegally admitting material evidence -    F
When there are concurrent findings of facts and/or when there
is no question of law involved and the conclusion is not
perverse, the Supreme Court would not re-open the findings
of the High Court.
                                                                  G
    Code of Criminal Procedure, 1973:

    s.174 - Inquest report - FIR lodged after recording
inquest report - Authenticity of - Held: The proposition that
                             493                                  H
    494     SUPREME COURT REPORTS                 (2010] 11 S.C.R.


A FIR loses its authenticity if it is lodged after the inquest report
  is a general proposition and may not be true in all cases and
  all circumstances - On facts, entry made in the general diary
  on the basis of telephonic message/information and on
  receipt of that information, the investigating officer went to the
B place of incident, drew up the inquest report, made seizure of
  the material objects and recorded the statements of persons
  present - Formal FIR lodged after few hours - Lodging of FIR
  after recording the inquest report would not be fatal - FIR.

      s. 174 - Inquest report - Object of - Held: Is to ascertain
C whether a person has died under unnatural circumstances or
  died an unnatural death and, if so, what was the cause of
  death.

       FIR: When information regarding a cognizable offence is
D furnished to the police, that information is regarded as the FIR
  and all enquiries held by the police, subsequent thereto would
  be treated as investigation, even though the formal registration
  of the FIR takes place only later.

E     The prosecution case was that on 7 .6.1997, the
  deceased was returning home on a rickshaw driven by
  PW-2. On the way, the appellants and others assaulted
  the deceased and thereafter forcibly took him to a house
  where he was assaulted by all the accused persons. The
  wife of the deceased was informed about the assault on
F her husband. She came to the place of occurrence and
  saw the accused persons assaulting the deceased. The
  police was informed by PW-8. The police came to the
  place of occurrence and took the injured to the hospital
  where he was declared dead. The appellants-accused
G and two others were convicted under Section 302/34 IPC.
  The order of trial court was upheld by the High Court.

       In the instant appeal, it was contended for the
    appellants that the Supreme Court can take a different
H
SRI SAMBHU DAS @ BIJOY DAS & ANR. v. STATE 495
               OF ASSAM
view and also come to a different conclusion than the one      A     r
arrived at by the trial court and the High Court if it prima
facie comes to the conclusion that the findings of fact
reached by the trial court and confirmed by the High
Court suffer from any patent error of law or have resulted
in miscarriage of justice; that the FIR was lodged after the   B
inquest was held and, therefore, the FIR was not reliable;
and that the important witness was not examined by the
prosecution which was fatal to prosecution story.

    Dismissing the appeal, the Court
                                                               c
     HELD: 1. This Court, in exercise of its powers under
Article 136 of the Constitution will not re-open the
findings of the High Court when there are concurrent
findings of facts and when there is no question of law
involved and the conclusion is not perverse. Article 136       D
of the Constitution does not confer a right of appeal on
a party. It only confers a discretionary power on the
Supreme Court to be exercised sparingly to interfere in
suitable cases where grave miscarriage of justice has
resulted from illegality or misapprehension or mistake in      E
reading evidence or from ignoring, excluding or illegally
admitting material evidence. [Para 12] [506-E-G]

    Dhananjay Shanker Shetty v. State of Maharashtra
(2002) 6 SCC 596; Ravinder Parkash & Anr. v. State of F
Haryana (2002) 8 SCC 426; Bharat v. State of Madhya
Pradesh (2003) 3 SCC 106; Mousam Singha Roy & Ors. v.
State of West Bengal (2003) 12 SCC 377; Ganga Kumar
Srivastava v. State of Bihar (2005) 6 SCC 211; Basudev
Hazra v. Matiar Rahaman Manda/ AIR 1971 SC 722, relied
on.                                                    G

    Ba/aka Singh & Ors. v. The State of Punjab 1975(4)
SCC 511; Ramesh Baburao Devaskar and Ors. v. State of
Maharashtra, 2007(13) SCC 501; Badri v. State of Rajasthan
1995 Supp. (3) SCC 521; /shvarbhai Fuljibhai Patni v. State    H .
    496     SUPREME COURT REPORTS                [2010) 11 S.C.R.


A of Gujarat 1995 (1) SCC 178; Lal Singh v. State of Madhya
  Pradesh 2003 (9) SCC 464; Hate Singh Bhagat Singh v.
  State of' Madhya Bharat AIR 1953 SC 468, referred to.

         2.1. In the instant case, there was the documentary
    evidence in the form of G.D. entry recorded by PW-8 in
8
    the General Diary on 07.06.1997 at about 6.30 P.M. That
    entry was made on the basis of the telephonic message/
    information supplied by PW-3. It was on receipt of·this
    information that PW-8 went to the place of the incident,
C   drew up the inquest report, made seizure of the material
    objects and recorded the statement of those present,
    including PW-1. Admittedly, the inquest report was
    pr~pared by PW-8 at 9.30 P.M. and the formal FIR was
    lodged by PW-1 at 11.30 P.M. The proposition that the FIR
    loses its authenticity if it is lodged after the inquest report
D   is a general proposition and may not be true in all cases
    and all circumstances. This ·general proposition cannot
    be universally applied, by holding that if the FIR is lodged
    for whatever reason after recording the inquest report the
    same would be fatal to all the proceedings arising out of
E   the Indian Penal Code. [Para 16] [508-B~F]

       2.2. The Inquest Report is prepared under Section
  174 Cr.P.C. The object of the inquest proceedings is to
  ascertain whether a person has died under unnatural
F circumstances or died an unnatural death and, if so, what
  was the cause of death. The question regarding the
  details as to how the deceased was assaulted or who
  assaulted him or under what circumstances he was
  assaultE!d, is foreign to the ambit and scope of the
  proceedings under Section 174 Cr.P.C. The names of the
G assailants and the manner of assault are not required to
  be mentioned in the inquest report. The purpose of
  preparing the inquest report is for making a note in regard
  to identification marks of the accused. Mention of the

H
SRI SAMBHU DAS @ BIJOY DAS & ANR. v. STATE 497
               OF ASSAM
name of the accused and eye-witness in the inquest              A
report is not necessary. Due to non-mentioning of the
name of the accused in the inquest report, it cannot be
inferred that the FIR was not in existence at the time of
inquest proceedings. Inquest report and post mortem
report cannot be termed to be substantive evidence and          B
any discrepancy occurring therein can neither be termed
to be fatal nor even a suspicious circumstance which
would warrant a benefit to the accused and the resultant
dismissal of the prosecution case. The contents of the
inquest report cannot be termed as evidence, but they           c
can be looked into to test the veracity of the witnesses.
[Para 17] [508-G-H; 509-A-D]

    Podda Narayana v. State of Andhra Pradesh AIR 1975
SC 1252; George v. State of Kera/a AIR 1998 SC 1376;
Suresh Rai v. State of Bihar AIR 2000 SC 2207, referred to.     D

     2.3. The well settled principle is that when information
regarding a cognizable offence is furnished to the police,
that information is regarded as the FIR and all enquiries
held by the police, subsequent thereto would be treated         E
as investigation, even though the formal registration of
the FIR takes place only later. Assuming that some report
was made on telephone and that was the real FIR, that
by itself would not affect the appreciation of evidence
made by the Sessions Judge and the conclusions of fact          F
drawn .by him. ThP. FIR under Section 154 Cr. P.C. is not
a substantive piece of evidence. Its only use is to
contradict or corroborate the maker thereof. [Paras 23, 24]
[511-D-F]

     Maha Singh v. State (Delhi Administration) (1976) SCC      G
644; State of UP. v. Bhagwant Kishore AIR 1964 SC 221,
referred to.

   3.1. The post-mortem was conducted by the doctor-
PW6. The post-mortem report of the deceased stated that         H
    498    SUPREME COURT REPORTS              (2010] 11 S.C.R.

A injuries were found to be ante mortem in nature. In the
  opinion of PW6, death was due to shock and hemorrhage
  resulting from the injuries sustained which were caused
  by blunt weapons. Unfortunately, the doctor did not state
  in his report whether the injuries sustained by the
B deceased were of homicidal in nature. He further opined
  that the injuries were fresh and caused by a blunt object.
  PW-8 was the investigating officer. A little comparison of
  the seized objects and the wounds found on the body
  of the deceased lead to inference that the evidence of PW-
C 8 can be believed, since it corroborated with the opinion
  of the doctor, PW-6. Therefore, it can be safely inferred
  that the deceased died because of the injuries sustained
  by the assault made by other persons and not by self-
  inflicted wounds. [Paras 25] (511-G-H; 512-A-E]
D        3.3. In the cross-examination of PW-1, nothing very
    striking was elicited except minor contradiction, which
    would not shake her credibility. In fact, she had stated
    that immediately after the post-mortem of the dead body,
    she lodged the FIR with the police and she further denied
E   the suggestion that she did not tell the police that the
    accused persons had assaulted her husband and killed
    him while he was returning home on a Rickshaw.
    Therefore, two important aspects emerged from her
    evidence before the trial court. Firstly, she has seen that
F   her husband was tied by means of a rope in a house and
    secondly, the accused persons including the appellants
    were assaulting her husband. The reasons for not
    examining the person who had informed PW1 about the
    incident were not explained by the prosecution.
G   Therefore, that part of the evidence of PW1 has to be
    eschewed since no effort was made by the prosecution
    to explain the reason for non-examination of one of the
    important persons. It is noticed by this Court time and
    again that in a number of criminal cases, because of
H   sloppy attitude shown by the prosecution, the real culprit
 SRI SAMBHU DAS @ BIJOY DAS & ANR. v. STATE 499
                OF ASSAM
goes scot free. It is no doubt true that when statement of   A
PW1 was recorded under Section 161 Cr.P.C., she had
not implicated four other accused persons but certainly
implicated the appellants and two other accused persons.
Merely because she had made some improvement in the
FIR lodged by her, her testimony cannot be totally           B
discarded. [Para 27] [513-D-H; 514-A-E]

     4. It is not necessary for the prosecution to examine
every other witness cited by them in the charge-sheet.
Mere non-examination of some persons does not corrode
the vitality of the prosecution version, particularly, the   C
witnesses examined have withstood the cross-
examination and pointed to the accused persons as
perpetrators of the crime. The trial court and the High
Court came to the conclusion that the evidence of PW1
was trustworthy and reliable. The evidence of PW1 was        D
corroborated by PW-8 and the post-mortem report issued
by PW6. The trial court and the High Court were justified
in believing of PW-1. PW2 was declared hostile by the
prosecution. However, in his examination-in-chief, he
says that he was carrying the victim in his rickshaw and     E
he stopped the rickshaw on the request made by the
deceased and at that time, the victim had a quarrel with
some persons who then assaulted him with blunt
objects. In his cross-examination, he denied the
suggestions put to him with reference to his statement       F
made under Section 161 Cr. P.C. before the Investigating
Officer. PW3, PW4, PW5 were brought in by the
prosecution as eye-witnesses to the occurrence. But all
of them had turned hostile. Unfortunately, the trend in
this country appears to be, as the time passes, dead are     G
forgotten and the living with a criminal record are
worshipped and adored and no witness would like to
speak against them. The trial court and the High Court
did not give any credence to their evidence. The High
Court arrived at its findings after examination and          H
    500    SUPREME COURT REPORTS              [2010] 11 S.C.R.


A consideration of the main features of evidence. It was
  only thereafter, the High Court affirmed the findings of the
  trial court while convicting the accused persons. There
  is no reason to upset the finding of the trial court and the
  High Court. [Paras 28, 29, 30, 32 33] [515-E-H; 516-A-D;
B 517-A-B]
                        Case Law Reference:
      1975(4) sec 511           referred to   Paras 4,13,
      2001(13) sec 501          referred to    Paras 4, 13, 15
c
      1995 Supp. (3) SCC 521 referred to      Para 4
      1995 (1) sec 118          referred to   Para 4
      2003 (9) sec 464          referred to    Para 4
D
      AIR 1953 SC 468           referred to    Para 6
      (2002) 6 sec 596          relied on      Para 7
      (2002) 8 sec 426          relied on      Para 8
E     (2003) 3 sec 106          relied on      Para 9
      (2003) 12 sec 377         relied on      Para 10
      (2005) 6 sec 211          relied on      Para 11

F     AIR 1971 SC 722           relied on      Para 12
      AIR 1975 SC 1252          referred to    Para 17
      AIR 1998 SC 1376          referred to    Para 17
      AIR 2000 SC 2207          referred to    Para 17
G
      (1976) sec 644            referred to    Para 21
      AIR 1964 SC 221           referred to    Para 22

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal .
H No. 342 of 2007.
SRI SAMBHU DAS@ BIJOY DAS & ANR. v. STATE 501
              OF ASSAM
    From the Judgment & Order dated 26.4.2006 of the High          A
Court of Guwahati in CRLA No. 63 of 2005.

    M.N. Rao, Azim H. Laskar, A. Ramesh and Abhijit
Sengupta for the Petitioners.

    Avijit Roy and Navneet (for Corporate Law Group) for the       B
Respondent.

    The Judgment of the Court was delivered by

      H.L. DATTU, J.1. This appeal is directed against the         C
judgment and order passed by the Gauhati High Court in
Criminal Appeal No. 63 of 2005, dated 26.04.2006, whereby
and where under, the High Court has affirmed the order passed
by the Sessions Judge, Hailakandi, in Sessions Case No.2 of
2002. The appellants are convicted under Section 302/34 IPC        D
and sentenced to imprisonment for life and to pay a fine of Rs.
10,000/- each, and in default, to undergo further imprisonment
for six months each.

     2. The case of the prosecution is that, on 07.06.1997 at
about 5.00 P.M. the deceased Fanilal Das was returning home        E
on a rickshaw driven by Manilal Das (PW2). The deceased
stopped the rickshaw near Shiva temple and after offering his
prayer, he came back to the rickshaw and at that point .of time,
the appellants and others assaulted the deceased and,
thereafter, forcibly took him to the house of Kunja Mohan where    F
he was assaulted by all the accused persons. It is their further
case, that, one Upendra Das informed the wife of the deceased
about the assault on her husband by the appellants and on
hearing the same, she came to the place of occurrence and
saw the accused persons assaulting the deceased, and on            G
being informed by PW-3, police came to the place of incident
and took the injured to the hospital where he was declared
dead. After completing the investigation, the accused persons
were charge-sheeted. Initially, four accused persons were tried
by the Sessions Judge, Hailkandi for commission of the
                                                                   H
    502     SUPREME COURT REPORTS                [201 OJ 11 S.C.R.


A   offence under Section 302/34 IPC. During the trial, four other
    persons were also arrayed as accused and tried along with the
    appellants. All the accused persons pleaded not guilty. During
    the course of the trial, the prosecution examined eight
    witnesses. After completion of the trial, the appellants were
B   examined under Section 313 Cr.P.C., wherein the appellants
    completely denied their involvement in the alleged offence. The
    learned trial Judge convicted the appellants and two others for
    the offence under Section 302/34 IPC and sentenced as stated
    earlier. This order of the Sessions Court is confirmed by the
c   Gauhati High Court by rejecting the criminal appeals filed by
    the accused persons.

        3. This appeal is filed only by Sambhu Das @ Bijoy Das
    (Accused No. 4) and Bibhu Das@ Sekhar Das (Accused No.
    5).
D
        4. While assailing the judgment and order of the High
  Court, it is contended by Shri M.N. Rao, learned senior counsel,
  that admittedly, the Inquest Report was recorded by the
  Investigating Officer at 9.30 PM and the FIR was lodged by the
E wife of the deceased at 11.30 PM on 07.06.1997. Therefore,
  it is contended that the First Information Report loses all
  authenticity if written after Inquest Report. In aid of his
  submission, reliance is placed on the observation made by this
  court in the case of Ba/aka Singh & Ors. Vs. The State of
F Punjab, [1975(4) SCC 511] and Ramesh Baburao Devaskar
  and Ors. Vs. State of Maharashtra, [2007(13) SCC 501]. It is
  further contended that the High Court has failed to address
  itself to certain crucial aspects of evidence and proceeded to
  dispose of the appeal on general observations and more so,
G in a very casual and cavalier manner which is impermissible
  in law. Reliance is placed on the observation made by this court
  in the case of Badri vs. State of Rajasthan, [1995 Supp. (3)
  SCC 521], lshvarbhai Fuljibhai Patni vs. State of Gujarat,
  [1995 (1) SCC 178] and Lal Singh vs. State of Madhya
  Pradesh, [2003 (9) SCC 464]. It is further contended that the
H
 SRI SAMBHU DAS @ BIJOY DAS & ANR. v. STATE 503
          OF ASSAM [H.L. DATIU, J.]
High Court has erred in not appreciating the fact that the              A
accused has put forward a reasonable defence throughout the
trial and as well as in their statement recorded under Section
313 of Criminal Procedure Code. While elaborating this
contention, it is stated that prior to the occurrence, the
complainant's husband and her husband's younger brother                 B
Chunnulal Das had got involved in the case regarding the
murder of their brother Arun Das and for that reason they have
been implicated in the present case out of that grudge. It is
further submitted that in the instant case, the High Court has
made departure from the rule, that when an accused person               C
puts forward a reasonable defence which is likely to be true and
in addition, when the same is supported by some prosecution
witnesses, the burden of proof on the other side _becomes
onerous, because a reasonable and probable story likely to be
true when pitted against a weak and vacillating prosecution
case and by that reasonable doubt, the accused must get the             D
benefit. It is further submitted that this court, in the case of Hate
Singh Bhagat Singh vs. State of Madhya Bharat, [AIR 1953 SC
468] has held that when an accused person puts forward a
reasonable defence which is likely to be true and in addition is
supported by two prosecution witnesses, then the burden on              E
the other side becomes all the heavier because a reasonable
and probable story likely to be true when pitted against a weak
and vacillating case is bound to raise reasonable doubts of
which the accused must get the benefit. It is also contended
that one important material witness, namely, Upen Das, who              F
is said to have informed PW1 that the accused person killed
her husband has not been examined by the prosecution, nor
has any explanation for not examining him as a witness been
given by the prosecution and, therefore, non-examination of
Upen Das is fatal to the prosecution story.                             G

      5. The learned counsel for the State while justifying the
impugned judgment and order, would submit that the concurrent
findings on facts by the Sessions Court and the High Court need
not be interfered by this Court.
                                                                        H
    504       SUPREME COURT REPORTS                   [2010] 11 S.C.R.


A      6. The question that requires to be noticed and answered
  is, whether this Court in exercise of the powers under Article
  136 of the Constitution of India, can upset the concurrent findings
  of fact recorded by the Trial Court and the Appellate Court. Shri
  M.N. Rao, learned senior counsel for the appellants, submits
8 that  this court can take a different view and also come to
  different conclusion than the one arrived at by the Trial and the
  Appellate Court, if this Court prima facie comes to the
  conclusion that the findings of fact reached by the Trial Court
  and confirmed by the High Court suffers from any patent error
C of law or has resulted in miscarriage of justice. In our view, the
  law on this issue is now well settled by several pronouncements
  made by this court.

         7. In Dhananjay Shanker Sheffy vs. State of Maharashtra,
    [(2002) 6 sec 596], it is stated that :
D
                "Ordinarily, after appraisal of evidence by the two
          courts below and recording concurrent verdict of
          conviction, this Court does not interfere with the same, but
          where it is found that compelling grounds exist and there
E         would be failure of justice, a duty is enjoined upon it to
          reappraise the evidence itself for doing complete justice
          in the case."

         8. In Ravinder Parkash & Anr. vs. State of Haryana,
    [(2002) 8 sec 426], it is observed :
F
          " .... :it is true normally this Court would not substitute its
          subjective opinion of the evidence with that of concurrent
          findings of the two courts below. However, having
          considered the findings of the courts below, we have
G         noticed that the trial court, though by a lengthy judgment
          has found the appellants guilty, we have found that finding
          is not supported by the material on record. Therefore, we
          have considered the pros~cution evidence independently
          and have disagreed with the same for reasons mentioned
          in this judgment. We have not done this by merely
H
SRI SAMBHU DAS @ BIJOY DAS & ANR. v. STATE 505
         OF ASSAM [H.L. DATTU, J.]
    substituting our subjective satisfaction but we have done       A
    the same for reasons based on material on record ....... "
    (Para 14)

    9. In Bharat vs. State of Madhya Pradesh, [(2003) 3 SCC
106], it is observed that :                                         B

    " .... The prosecution has to prove its case against the
    appellant beyond reasonable doubt. The chain of
    circumstances, in our opinion, is not complete so as to
    sustain the conviction of the appellant. There is thus no
    substance in the contention urged on behalf of the State        C
    that this Court may not interfere in the concurrent findings
    of fact of the courts below." (Para 12)

    10. In Mousam Singha Roy & Ors. vs. State of West
Bengal, [(2003) 12 SCC 377], it is stated :                         D
          "We are also aware that this Court does not disturb
    the concurrent findings of the courts below if the same are
    based on legal evidence merely because another view is
    possible. Thus, keeping in mind the caution expressed by
    Baron Alderson (supra) as also the need to respect the          E
    concurrent findings of the two courts below, we have
    assessed the evidence in this case very carefully, but in
    spite of the same we are unable to concur with the findings
    of the courts below. In our opinion, both the courts below
    have departed from the rule of prudence while appreciating      F
    the evidence led by the prosecution." (Para 29)

    11. In Ganga Kumar Srivastava vs. State of Bihar, [(2005)
6 sec 211], it is observed :

            "From the aforesaid series of decisions of this Court   G
     on the exercise of power of the Supreme Court under.
     Article 136 of the Constitution following principles emerge:

          (i) The powers of this Court under Article 136 of the
     Constitution are very wide but in criminal appeals this        H
    506       SUPREME COURT REPORTS                     [2010] 11 S.C.R.


A         Court does not interfere with the concurrent findings of fact
          save in exceptional circumstances.

                 (ii) It is open to this Court to interfere with the findings
          of fact given by the High Court, if the High Court has acted
B         perversely or otherwise improperly.

                 (iii) It is open to this Court to invoke the power under
          Article 136 only in very exceptional circumstances as and
          when a question of law of general public importance arises
          or a decision shocks the conscience of the Court.
c
                 (iv) When the evidence adduced by the prosecution
          fell short of the test of reliability and acceptability and as
          such it is highly unsafe to act upon it.

                (v) Where the appreciation of evidence and finding
D        is vitiated by any error of law of procedure or found
       . contrary to the principles of natural justice, errors of record
         and misreading of the evidence, or where the conclusions
         of the High Court are manifestly perverse and
         unsupportable from the evidence on record. (Para 10)
E
        12. This Court, in exercise of its powers under Article 136
  of the Constitution, will not re-open the findings of the High
  Court when there are concurrent findings of facts and there is
  no question of law involved and the conclusion is not perverse.
F Article 136 of the Constitution, does not confer a right of appeal
  on a party. It only confers a discretionary power on the Supreme
  Court to be exercised sparingly to interfere in suitable cases
  where grave miscarriage of justice has resulted from illegality
  or misapprehension or mistake in reading evidence or from
G ignoring, excluding or illegally admitting material evidence.
  [See Basudev Hazra v. Matiar Rahaman Manda/ - AIR 1971
  SC 722].

        13. Keeping in view the aforesaid settled legal principles,
    we now proceed to examine the main contention canvassed
H
 SRI SAMBHU DAS @ BIJOY DAS & ANR. v. STATE 507
          OF ASSAM [H.L. DATTU, J.]
by learned senior counsel Shri M.N. Rao, appearing for the           A
appellant. It is submitted that in the instant case, the
investigating officer (PW8), has recorded/prepared the inquest
report on 7.6.1997 at 9.30 PM and at the instance of PW1, the
first information report was recorded by PW8 on 7.6.1997 at
11.30 PM under Sections 147, 148, 149, 341, 342, 325, 326            B
and 302 of IPC against four persons and, therefore, it is
contended that since FIR is lodged after inquest was held, the
FIR is not reliable. Alternatively, it is contended that in a case
under Section 302 read with Section 32 IPC, First Information
Report cannot be lodged after the inquest has been held.             c
Reliance, as we have already stated, is on the decision of this
Court in Balkasingh's case (supra) and in Ramesh Babu Rao
Devaskar's case (supra).

      14. In Ba/aka Singh's case, it was observed by this Court,
that the names of four accused out of nine were missing in the       D
body of the Inquest Report and this omission was not explained
and, therefore, it lead to the probability that FIR must have been
prepared after the preparation of Inquest Report. That was a
case where there were nine accused persons and the names
of five accused were mentioned in the Inquest Report. The            E
A.S.I. had no valid explanation for the same. It was also found
by the Court that FIR was registered subsequently. Therefore,
the observation of this Court is to be understood in that
background. We do not think that this decision lays down that
under all circumstances, the First Information Report loses its      F
authenticity, if it is filed after Inquest Report.

     15. In Ramesh Babu Rao Devaskar's case, First
Information Report was lodged after inquest was held and the
same was based on the version of alleged eye witness. This           G
court was of the view that there was no explanation why FIR
was not lodged by eye witness and also noticed that the name
of only one accused was mentioned in the FIR. However, in the
Inquest Report statements of Panch witnesses recorded to the
effect that some unknown assailants killed the deceased. Apart
                                                                     H
    508      SUPREME COURT REPORTS                  [2010) 11 S.C.R.


A from the above omission, copy of the FIR was sent to the
  concerned Magistrate after four days, sharing of common
  object by other accused persons with the accused who was
  named in the FIR was not made out and one of the PWs turned
  hostile and testimony of other two PWs was not reliable. In view
B of these discrepancies, this Court, on facts, held it would be
  hazardous to record conviction of the accused.

          16. In the present case, there is the documentary evid~nce
    in the form of G.D. entry No.164-recorded by PW-8 in the
    General Diary on 07.06.1997 at about 6.30 P.M. That entry was
C   made on the telephonic message/information supplied by
    Asabuddin Mazumdar, PW-3. It is clearly stated therein by PW-
    3 that a man named Fanilal Das was lying in a serious condition
    on the side of verandah of Chandan Das. It was on receipt of
    this information that PW-8 went to the place of occurrence of
D   the incident, drew up the inquest report, made seizure of the
    material objects and recorded the statement of those present,
    including PW-1. Admittedly, the inquest report is prepared by
    PW-8 at 9.30 P.M. and the formal FIR is lodged by PW-1 at
    11.30 P.M. The learned senior counsel Shri M.N. Rao, by
E   placing his fingers on the admission made by PW-8 in his
    evidence would contend, that, FIR loses its authenticity if it is
    lodged after the inquest report is recorded. This submission of
    the learned counsel is a general proposition and may not be
    true in all cases and all circumstances. This general proposition
F   cannot be universally applied, by holding that if the FIR is lodged
    for whatever reason after recording the inquest report the same
    would be fatal to all the proceedings arising out of the Indian
    Penal Code.

       17. The Inquest Report is prepared under Section 174
G Cr.P.C. The object of the inquest proceedings is to ascertain
  whether a person has died under unnatural circumstances or
  an unnatural death and if so, what the cause of death is? The
  question regarding the details as to how the deceased was
  assaulted or who assaulted him or under what circumstances
H he was assaulted, is foreign to the ambit and scope of the
 SRI SAMBHU DAS @ BIJOY DAS & ANR. v. STATE 509
          OF ASSAM [H.L. DATTU, J.]

proceedings under Section 174 Cr.P.C. The names of the              A
assailants and the manner of assault are not required to be
mentioned in the inquest report. The purpose of preparing the
inquest report is for making a note in regard to identification
marks of the accused. The inquest report is not a substantive
evidence. Mention of the name of the accused and eye witness        B
in the inquest report is not necessary. Due to non-mentioning
of the name of the accused in the inquest report, it cannot be
inferred that FIR was not in existence at the time of inquest
proceedings. Inquest report and post mortem report cannot be
termed to be substantive evidence and any discrepancy               c
occurring therein can neither be termed to be fatal nor even a
suspicious circumstance which would warrant a benefit to the
accused and the resultant dismissal of the prosecution case.
The contents of the inquest report cannot be termed as
evidence, but they can be looked into to test the veracity of the
                                                                    D
witnesses. When an officer incharge of Police Station receives
information that a person had committed suicide or has been
killed or died under suspicious circumstances, he shall inform
the matter to the nearest Magistrate to hold Inquest. A criminal
case is1registered on the basis of information and investigation
is conimenced under Section 157 of Cr.P.C. and the
                                                                    E
information is recorded under Section 154 of Cr.P .C. and,
thereafter, the inquest is held under Section 174 Cr.P.C. This
Court, in the case of Podda Narayana Vs. State of Andhra
Pradesh [AIR 1975 SC 1252], has indicated that the
proceedings under Section 174 Cr. P.C. have limited scope.          F
The object of the proceedings is merely to ascertain whether
a person has died in suspicious circumstances or an unnatural
death and if so, what is the apparent cause of the death. The
question regarding details as to how the deceased was
assaulted or who assaulted him or under what circumstances,         G.
he was assaulted is foreign to the ambit and scope proceeding
under Section 17 4. Neither in practice nor in law was it
 necessary for the Police to mention these details in the Inquest
 Report. In George Vs. State of Kerala AIR 1998 SC 1376, it
 has been held that the Investigating Office is not obliged to      H
    510     SUPREME COURT REPORTS                  [2010] 11 S.C.R.

A investigate, at the stage of Inquest, or to ascertain as to who
  were the assailants. In Suresh Rai Vs. State of Bihar AIR 2000
  SC 2207, it has been held that under Section 174 read with
  Section 178 of Cr. P.C., Inquest Report is prepared by the
  Investigating Officer to find out prima facie the nature of injuries
B and the possible weapon used in causing those injuries as also
  possible cause of death.

       18. This Court has consistently held that Inquest Report
  cannot be treated as substantive evidence but may be utilized
C for contradicting the witnesses of the Inquest. Section 175 Cr.
  P.C. provides that a Police Officer proceedings under Section
  174 may, by an order in writing, summon two or more persons
  for the purpose of the said investigation. The provisions of
  Sections 174 and 175 afford a complete Code in itself for the
  purpose of inquiries in cases of accidental or suspicious
D deaths.

         19. Section 2 (a) of the Cr.P.C. defines "Investigation" as
    including all the proceedings under this code for the collection
    of evidence conducted by the police officer.
E
       20. Section 157 of the Code says that if, from the
  information received or otherwise an officer incharge of a police
  station has reason to suspect the commission of an offence
  which he is empowered to investigate, he shall forthwith send
  a report of the same to the Magistrate concerned and proceed
F in person to the spot to investigate the facts and circumstances
  of the case, if he does not send a report to the Magistrate, that
  does not mean that his proceedings to the spot, is not for
  investigation. In order to bring such proceedings within the
  ambit of investigation, it is not necessary that a formal
G registration of the case should have been made before
  proceeding to the spot. It is enough that he has some
  information to afford him reason even to suspect the
  commission of a cognizable offence. Any step taken by him
  pursuant to such information, towards detention etc., of the said
H offence, would be part of investigation under the Code.
SRI SAMBHU DAS @ BIJOY DAS & ANR. v. STATE 511
         OF ASSAM [H.L. DATTU, J.]
     21. In Maha Singh vs. State (Delhi Administration),            A
[(1976) sec 644], this court considered a case in which police
officer arranged a raid after recording a complaint, but before
sending it for registration of the case. It was held in that case
that "the moment the Inspector had recorded a complaint with
a view to take action to track the offender, whose name was         B
not even known at that stage, and proceeded to achieve the
object, visited the locality, questioned the accused, searched
his person, seized the note and other documents, turns the
entire process into investigation under the Code.

     22. In State of UP. vs. Bhagwant Kishore, [AIR 1964 SC         C
221], this court stated that "Though ordinarily investigation is
undertaken on information received by a police officer, the
receipt of information is not a condition precedent for
investigation."
                                                                    D
     23. The principles now well settled is that when information
regarding a cognizable offence is furnished to the police that
information will be regarded as the FIR and all enquiries held
by the police subsequent thereto would be treated as
investigation, even though the formal registration of the FIR       E
takes place only later.

     24. Assuming that some report was made on telephone
and that was the real First Information Report, this by itself
would not affect the appreciation of evidence made by the
learned Sessions Judge and the conclusions of fact drawn by         F
him. The FIR under Section 154 Cr. P.C. is not a substantive
piece of evidence. Its only use is to contradict or corroborate
the maker thereof. Therefore, we see no merit in the submission
made by learned counsel for the appellants.
                                                                    G
     25. Now we focus our attention to the merits of the appeal.
The Postmortem was conducted by Dr. Ashit Som (PW6). From
the Postmortem Report of the deceased Fanilaf Das, it appears
that injuries on their examination were found to be ante mortem
in nature. In his opinion, death is due to shock and                H
    512     SUPREME COURT REPORTS                [2010] 11 S.C.R..'


A haemorrhage resulting from the injuries sustained which were
  caused by blunt weapons. Unfortunately, the doctor has not
  stated in his report whether the injuries sustained by the
  deceased were of homiciqal in nature. Therefore, we have seen
  the report furnished by the doctor, who, as per his post mortem
B report found lacerated wound over the middle of frontal region
  of the scalp with fracture of frontal bone corresponding to the
  injury, lacerated wound over right parietal of the scalp
  6cmx2cmx2cm fracture of parietal bone, two incisior and two
  canine teeth of both jaws were dislocated. Dislocation of both
c elbow and ankle joint was also there. He has further opined that
  the injuries were fresh and caused by a blunt object. It has come
  in the evidence of PW-8 that immediately after the inquest report ·
  was prepared, the body of the deceased was sent for post
  mortem. This would coincide with this evidence on this aspect.
D Secondly, the seizure report which is marked as one of the
  exhibit in the evidence, he has clearly stated the material
  objects seized by him, such as nylon rope, bamboo stick, iron
  chain, dao, rod and lathi etc. A little comparison of these seized
  objects and the wounds found on the body of the deceased, a .
E safe inference can be drawn that this part of evidence of this .
  witness can be believed, since it corroborates with the opinion
  of the Doctor, PW-6. Therefore, it can be safely inferred that
  the deceased died because of the injuries sustained by the
  assault made by other persons and not by self inflicted wounds.

F      26. The prosecution case solely rests on the evidence of
  PW1. She is the wife of the deceased. PW2, though turned
  hostile, has spoken to a part of the incident. PW3 is the U.D.P ..
  Secretary of Paikan Bazar. He is alleged to have gone to
  Paikan Tempur Bazar to purchase sweets and having heard
G from the people gathered on the side of the verandah of
  Chandu Das's house at the Paikan Bazar, that Fanilal Das lying
  in a serious condition, he informed the Police from Ballu Das's
  telephone. This version of PW3 appears to be correct. This
  information, in fact, triggered the Investigating Agency to reach
H
 SRI SAMBHU DAS @ BIJOY DAS & ANR. v. STATE 513
     .    OF ASSAM [H.L. DATTU, J.]
the place of incident after making necessary entries in the           A
Registers at the Police Station.

      27. The evidence of PW1 requires a thorough scrutiny.
PW1 is the wife of the deceased. According to her, one
Upendra Das informed her that the accused persons including           B
the appellants are assaulting her husband in Kunja Mohan's
house and on receiving the information, it is further stated by
her, that she immediately rushed to that place and found that
the accused persons had tied the hands of her husband and
were assaulting him. It has also come in her evidence that she
saw all the accused persons dragging her husband inside their         C
house. She has further stated around that time, the Police Party
reached the spot and took her husband in a vehicle and she
also accompanied her husband in the same vehicle and on
arriving at the hospital, the doctors declared that her husband
was dead and after inquest of the dead body, she returned             D
home with the help of police and immediately she lodged the
First Information Report (Ext.1 ). In her cross-examination,
suffice it to say, that nothing very striking except minor
contradiction has been elicited, which would not shake her
credibility. In fact, she has stated that immediately after the       E
Postmortem of the dead body, she lodged the FIR with the
Police and she has further denied the suggestion that she did
not tell the police that the accused persons had assaulted her
husband and killed him while he was returning home from
Hailkandi Town on a Rickshaw. Therefore, two important                F
aspects emerge from her evidence before the Trial Court.
Firstly, she has seen that her husband was tied by means of a
rope in the house of Kunj Mohan Das and secondly, the
accused persons including the appellants were assaulting her
husband. The case of the prosecution and the fate of the              G
accused entirely depend on her version and, therefore, as we
said earlier, it is on her testimony that the fate of these accused
persons/appellants really hinges. The reasons for not examining
 Upendra Das, who is supposed to have informed PW1 about
the incident, is not explained by the prosecution. Therefore, we      H
    514     SUPREME COURT REPORTS                [2010] 11 S_.C.R.

A might have to eschew this part of the evidence 9f PW1, since
  no effort is made by the prosecution to explain the reason for
  non-examination of one of the important persons, who is said
  to have informed PW1 about the assault and dragging of the
  deceased into the house of first accused, who is not before us.
B Then, the next question that would arise is, can we believe, as
  has been done by both the Courts below, the other part of the
  testimony of this witness. At this juncture, we intend to add that
  if the prosecution fails to explain the reason for non-examination
  of an important witness, who is supposed to have informed the
c alleged incident, should the accused persons go scot free. It
  is a difficult question, sometimes difficult to answer. Since, it
  is noticed by this Court time and again that in number of
  criminal cases, because of sloppy attitude shown by the
  prosecution, the real culprit goes scot free. It is no doubt true
  that when her statement was recorded under Section 161
0
  Cr.P.C., she had not implicated four other accused persons but
  certainly implicated the appellants and two other accused
  persons. Merely because she has made some improvement
  in the FIR lodged by her, we cannot totally discard her
E testimony.

       28. PW8 is the Investigating Officer. He was attached to
  Hailakandi Police Station. He was the one who visited the place
  of occurrence on being directed to do so by the office-in-charge
  of the Police Station. In his evidence, he has stated that lti
F Mohan Das-PW3 took him to the place of occurrence and he
  found the injured Fanilal Das tied at the veranda of the accused
  persons. It has also come in his evidence that on reaching the
  place of occurrence, he drew up sketch map of the place of
  occurrence, and seized incriminating materials. He has also .
G stated that he removed the injured to Hailakandi Civil Hospital
  where the Medical Officer declared him dead. It has also come
  in his evidence that he was the one who prepared the Inquest·
  Report. He further narrates that PW2 informed him that the
  deceased was travelling in his rickshaw and at that time, ·
H Chandra Das@Smritikanta and two unknown persons dragged ·
SRI SAMBHU DAS @ BIJOY DAS & ANR. v. STATE 515
         OF ASSAM [H.L. DATTU, J.]
him out of the rickshaw and assaulted him by means of rod;            A
hunter etc. Though PW2 turned hostile, their part bf evidence
supports the case of the prosecution. In his cross examination,
defence has elicited from him that Inquest Report was prepared
by him at 9.30 PM and FIR was registered at 11.30 PM. Much
was made at out of this admission by learned senior counsel           B
arguing for the appellants, we have already answered this issue
while considering the issue that whether FIR loses all
authenticity if written after Inquest Report. The other important
admission that was made by him that when he recorded _the
statement of PW1, she did not mention the names of Subhash,:          c
Bela Kr°ishna and Rajan, but had mentioned the names _of all
the other accused persons. Her version that she went to the
place of occurrence on being informed to her about the
assaulting of her husband by the accused persons is
corroborated in his testimony. It is also of some importance that     B
PW-1 for the first time, in her evidence before the Court,
implicated them and that is how, they were arrayed as co-
accused and tried along with others. The learned Trial Judge;
however, has acquitted those accused persons. In our view,_
rightly so. In our opinion, it is not necessary for the prosecution
to examine every other witness cited by them in the charge-           E
sheet. Mere non-examination of some persons does not
corrode the vitality of the prosecution version, particularly, the
witnesses examined have withstood the cross-examination and
pointed to the accused persons as perpetrators of the crime.
The Trial Court and the High Court have come to the conclusion        F
that the evidence of PW1 is trustworthy and reliable. We have
also carefully perused the evidence of PW1 ,·whose evidence
is corroborated by PW-8 and the Postmortem report issued by
PW6, we are convinced that the Trial Court and the High Court
were justified in believing the testimony the testimony of PW-        G
1.

    29. Manilal Das - PW2 is declared hostile by the
prosecution. However, in his examination-in-chief, he says that
he was carrying Fanilal Das in his Rickshaw and he stopped            H
    516     SUPREME COURT REPORTS                 (2010] 11 S.C.R.


A the Rickshaw at Tepur Bazar on the request made by the
  deceased and it is at that time, the deceased had a quarrel
  with some people and some persons assaulted him with blunt
  objects. In his cross-examination by the learned counsel for the
  prosecution, he denies the suggestions put to him with
B reference to his statement made under Section 161 Cr. P.C.
  before the Investigating Officer.

        30. Md. Asaf Ali Majumdar - PW3, Md. Masuraff Ali
  Barbhuiya - PW4, Harmendra Das-PW5 are brought in by the
  prosecution as eye-witnesses to the occurrence. But all of them
C have turned hostile. Unfortunately, the trend in this country
  appears to be, as the time passes, dead are forgotten and the
  living with a criminal record are worshipped and adored and
  no witness would like to speak against them. The Trial Court
  and the High Court has not given any credence to their
D evidence.

       31. The testimony of ltimohan Das -PW7 has some
  relevance. He is a local tea shop owner. He has stated that he
  accompanied the Police to the house of the accused and found
E the deceased tied with a rope in the verandah of Kunja Mohan.
  He also states that he saw some injuries on the body of the
  deceased person. He also confirms that the Investigating Officer
  seized a chain, a lathi, one dao and a rope.

       32. In our view, having carefully seen the evidence of PW1,
F which is corroborated by the postmortem report issued by PW6
  and the evidence of PW8, it is trustworthy and reliable. The Trial ·
  Court and the High Court have accepted her evidence while
  holding that the accused persons in furtherance of the comn:ion
  intention, assaulted Fanilal Das and killed him. We do not find
G any good reason to upset this finding of the Trial Court and the
  High Court.

       33. The learned senior counsel submitted that the High
  Court in a most casual manner has rejected the appeals filed
H by the accused. This assertion, in our opinion, is not justified.
SRI SAMBHU DAS @ BIJOY DAS & ANR. v. STATE 517
         OF ASSAM [H.L. DATTU, J.]
The High Court has arrived at its findings after examination and    A
consideration of the main features of evidence. It is only
thereafter, the High Court has affirmed the findings of the trial
court while convicting the accused persons.

    34. In view of the foregoing discussion, we do not see any      B
merit in this appeal. Accordingly, it is dismissed.

D.G.                                        Appeal dismissed.