Holding

The Supreme Court upheld the conviction of Prem Yadav, finding that the explained FIR delay and the non‑production of the ballistic report under Section 313 did not prejudice the case, while acquitting the other accused due to insufficient corroboration.

Summary

The State of Uttar Pradesh prosecuted Prem Bhujva, Raghuvir, Mehngu and Prem Yadav for the murder of Lallu Singh, alleging an ambush and shooting on 30 July 2003. The trial court, relying on two eye‑witnesses, recovery of a pistol from Prem Yadav and a ballistic report linking the weapon to cartridges found at the scene, convicted all four and sentenced them to life imprisonment. The Allahabad High Court acquitted them, holding that the one‑day delay in filing the FIR and the failure to put the ballistic expert’s opinion before the accused under Section 313 CrPC created reasonable doubt. The Supreme Court held that the explained delay did not vitiate the prosecution and that the omission of the ballistic report under Section 313 did not prejudice the accused, affirming the conviction of Prem Yadav while acquitting the other three due to lack of corroborative evidence. Consequently, the appeal was allowed in part, confirming Prem Yadav’s life sentence and dismissing the appeals concerning the other accused.

Issues considered

Whether a delay in lodging the FIR, if explained, can invalidate the prosecution case.
Whether the failure to put the ballistic expert’s opinion before the accused under Section 313 CrPC warrants reversal of conviction.
Whether the eye‑witness testimony, corroborated by ballistic evidence, is sufficient to sustain a conviction.
Whether the benefit of doubt applies to co‑accused when corroborative evidence is lacking.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 120B, s. 302, s. 34

Subjects

murderIPC 302delay in FIRballistic evidenceSection 313 CrPCeye‑witness credibilitybenefit of doubtlife imprisonmentcriminal appeal

Judgment

[2017] 13 S.C.R. 293

STATE OF U.P. A

v.

RAGHUVIR AND ANR. ETC. ETC.

(Criminal Appeal Nos. 2175-2177 of2017) B

DECEMBER 13, 2017

[R. BANUMATHI AND UDAY UMESH LALIT, JJ.)

Penal Code, 1860: s. 302 - Conviction and sentence under - c
Correctness of - Prosecution case that accused in ambush extended
exhortation and fired at the victim resulting in his death - Motive
for the crime was enmity between the parties - Accused persons
convicted u/s. 302 and sentenced to life imprisonment on the basis
of the credible and trustworthy evidence of eye witnesses, recovery D
of the gun from accused 'P ', and opinion of the ballistic report -
High Court acquitted the accused - On appeal, held: Trial court
had accepted the explanation offered by the prosecution for the
delay in lodging FIR - High Court ought not to have interfered
with the same - High Court did not properly appreciate the evidence
of eye witnesses and recovery of gun from accused 'P' and the E
opinion of ballistic expert that empty cartridges recovered from the
scene of occurrence were fired from the gun recovered from the
accused 'P' - Grounds on which the High Court reversed the
judgment of the trial court not adequate - High Court misdirected
itself in appreciating the evidence before it and the reasonings
F
for acquittal of accused 'P' not sustainable - Insofar as the other
three accused no other substantial evidence corroborating the
evidence of eye witnesses - In absence thereof. the High Court
rightly extended the benefit of doubt to them - Conviction of
accused 'P' u/s.302 and sentence of life imprisonment by the trial
court upheld - Evidence - FIR. G

FIR: Delay in lodging of - Effect - Held: Delay in lodging of
complaint and the registration of FIR is normally viewed with
suspicion because there is a possibility of concoction and the courts
should subject evidence as well as contents of FIR to carefid scn1tiny
H
293
294 SUPREME COURT REPORTS [2017] 13 S.C.R.

A - Whether the case of the prosecution is to be registered on the
ground of delay in FIR, depends upon facts and circumstances of
each case.
Evidence: Opinion of the ballistic report, when not put to the
accused uls. 313 Cr.P. C. - Effect, on prosecution case - Held:
B Object of s.313 Cr.P.C. is to put a circumstance against the accused
so that he may meet out the prosecution case and explain the
circumstances brought out by the prosecution to implicate him in
the commission of the offence - If any circumstance had not been
put to the accusfd in his statement, the same shall be excluded from
c consideration, subject to the condition whether omission to put the
question u/s. 313 has caused miscarriage of justice or prejudice to
the accused - Jn the instant case, recovery of gun from accused P
and the ballistic expert's opinion is only a corroborative piece of
evidence strengthening the prosecution case as established by the
oral testimony of eye witnesses - Even assuming that the question
D regarding the ballistic expert's evidence was not put to the accused
u!s.313, on facts, it caused no prejudice to the accused - Thus, the
High Court not right in brushing aside this formidable circumstance
against accused P - Code of Criminal Procedure, 1973 - s. 313.

Pancho v. State of Haryana (2011) 10 SCC 165
E [2011) 12 SCR 1173 - distinguished.

Case Law Reference
[2011) 12 SCR 1173 distinguished Para 11
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
F
Nos. 2175-2177 of2017.

From theJudgmentand Order dated 18.12.2012 of the High Court
of Judicature at Allahabad, Lucknow Bench in Criminal Appeal
Nos. 745, 841and891 of2009.
G Ratnakar Das, Sr. Adv, Manoj K. Mishra, Ashutosh Kumar
Sharma, Kamlendra Mishra, Advs for the Appellant.

Ajay Veer Singh Jain, Atul Agarwal, Uday Ram Bokadia,
Ms. Divya Garg, Rakesh Kumar Khare, Rahul Poonia, Alok Mohan,
Sona! Jain, Advs for the Respondents.
H
STATE OF U.P. v. RAGHUVIR AND ANR. 295

The Order of the Court was passed by A
R. BANUMATHI, J. I. Leave granted.
2. These appeals preferred by the State of U.P. challenges the
judgment of the High Court ofAllahabad in Criminal Appeal Nos. 745 of
2009, 841 of2009 and 891 of2009 acquitting the respondents under
Section 302 lPC by setting aside their conviction and the sentence of life B
imprisonment imposed upon them.
3. Case of the prosecution is that on 30.07.2003, informant Bharat
Singh along with his son Lallu Singh, Shivpati wife of Lallu Singh,
Dheerendra Singh (PW-I), Monu (PW-2) and Meenu were returning
home after working in their fields at 09.00 P.M. At about 09.00 P.M., C
when they reached near huts constructed near the field of Hanuman
alias Mana, then in ambush Prem Bhujva, Raghuvir, Mehngu and Prem
Yadav, extended exhortation and fired at Lallu Singh with country-made
pistol and guns. Lallu Singh died on the spot and all the accused persons
ran away towards the village. D
4. The incident is stated to be the result of an enmity culminating
into hatching of conspiracy by the accused due to a Marpit taken place
three days prior to the incident between Sriram Gupta and Shiv Charan
on one side and the deceased on the other wherein they had threatened
the deceased to kill. On account of heavy rain during night and due to E
fear of the accused, the incident was not reported on the same night.
5. Bharat Singh lodged complaint (Ex.Al) on the next day i.e. on
31.07.2003 at 10.00 a.m., based on which FIR No.103 of2003 (Ex.A3)
was registered under Section 302 !PC read with Section 120B !PC.
Upon completion of investigation, chargesheet was filed under Section
F
302 read with Section 34 !PC and Section 120B !PC on 17.10.2003
against the accused Prem Bhujva, Raghuvir, Mehngu and Prem Yadav
with two others Shiv Charan and Ram Gupta.
6. The trial court examined seven prosecution witnesses including
two eye witnesses Dheerendra Singh (PW-I) and Monu (PW-2), G
PW-3-SI Dharampal Singh, PW-4-Dr. Rajesh Kumar Srivastava who
conducted post mortem (Ex. A4) and PWs 4 to 7 who were other
witnesses and investigating officer. Upon consideration of evidence, the
trial court held that evidence ofeye witnesses PW-I and PW-2 is credible

H
296 SUPREME COURT REPORTS [2017] 13 S.C.R.

A and trustworthy. Based upon the evidence of eye witnesses PW- I and
PW-2, the trial court held that gun was recovered from the possession
of accused Prem Yadav and as per the ballistic report, the gun recovered
from the possession of accused Prem Yadav tallied with the empty
cartridges recovered from the place of occurrence and on those findings,
the trial court convicted all the four accused persons under Section 302
B
!PC and sentenced each of them to undergo imprisonment for life and a
fine of Rs.5,000/- was imposed on each of them with default clause.
7. Aggrieved by the conviction, the respondents/accused filed
criminal appeal before the High Court. The High Court set aside the
conviction and held that the delay in lodging FIR has not been satisfactorily
c explained. The High Court held that the evidence and incriminating
circumstances are not sufficient to hold the accused guilty and reversed
the judgment of the trial court and acquitted all the accused. Being
aggrieved, the State has preferred these appeals.
8. We have heard learned counsel for the parties and perused the
D impugned judgment and materials on record.
9. Dheerendra Singh (PW-I) and Monu (PW-2) have consistently
stated that on 30.07 .2003, after working in the field, they were returning
to their houses at around 09.00 P.M. along with Lallu Singh and Shivpati
wife of Lalin Singh. They further stated that when they reached the
E huts constructed near the field of Hanuman alias Mana, accused Prem
Bhujva, Raghuvir, Mehngu and Prem Yadav in ambush came and hurled
abuses on Lalin Singh. The first shot fired by Prem Yadav and thereafter,
all the other three accused also fued. On seeing the people coming near
them, the accused persons fled away from the scene of occurrence.
F The motive for the crime is stated to be an occurrence about 2-3 days
prior to the incident i.e. a quarrel between the accused persons namely
Shiv Charan and Ram Gupta with deceased Lalin Singh. PW-l and
PW-2 have stated that they were standing at about four-five steps behind
the deceased and the accused persons were about seven-eight steps in
front of Lalin Singh. PW-I and PW-2 categorically stated that first
G round of fire was shot by accused Prem Yadav from his gun and then
the remaining accused fired from their pistols.

10. Dheerendra Singh (PW-I) andMonu (PW-2) are the nephew
of deceased Lallu Singh and grandson of complainant Bharat Singh. As
pointed out by the trial court, PW-1 and PW-2 being related to deceased
H
STATE OF U.P. v. RAGHUVIR AND ANR. 297
[R. BANUMATHI, J.]

Lallu Singh, it is quite natural that after working in the fields, while A
returning to their houses, they accompanied the deceased Lallu Singh.
PW-I and PW-2 have stated that though it was night time, they were
able to recognize the accused persons in torch light. Accused Prem
Bhujva is from the same village as of deceased Lallu Singh i.e. Devmai
and the remaining three accused persons are from village Diwan Kheda
B
which is situated at a distance of one kilometer from their village. The
trial. court which had the opportunity of seeing and observing the
demeanour of PW-1 and PW-2, found that evidence of PW-1 and PW-
2 is trustworthy and their identification of the accused persons cannot
be doubted. The High Court, in our view, was not right in doubting the
evidence of PW-1 and PW-2 and upset the verdict of conviction. c
11. From the scene of occurrence, three empty cartridges and
one live cartridge were recovered (Ex.AB) by the Investigating Officer-
Pravesh Chandra Chaturvedi (PW-7). The gun was recovered from
the accused Prem Yadav on 08.08.2003. The gun recovered from the
accused Prem Yadav and the empty cartridges were sent to the ballistic D
expert for comparison which reached the ballistic expert on 04.11.2003.
The ballistic expert in his report (Ex.A 14) opined that the empty cartridges
recovered from the scene of occurrence were found to be shot from the
same gun which was recovered from accused Prem Yadav and this is a
militating circumstance against the accused Prem Yadav. This strong E
incriminating circumstance was brushed aside by the High Court on the
ground that the opinion of the ballistic expert was not put to the accused
under Section 313 Cr.P.C. Placing reliance upon Pancho v. State of
Haryana (2011) 10 SCC 165, the High Court observed that the opinion
of ballistic expert (Ex. Al4) cannot be held against the accused Prem
Yadav. In Pancho case relied upon by the High Court, there was no F
evidence to show that during the period of six months, in whose custody
the pistol was kept. The facts of the said case are different and the said
decision may not be applicable to the present case. In the case in hand,
three empty cartridges and one live cartridge were recovered from the
place of incident. The gun was recovered from accused Prem Yadav G
on 08.08.2003. Merely because there was a delay in receipt of gun and
the empty cartridges by the ballistic expert, the incriminating
circumstances emanating from the opinion of the ballistic expert cannot
be brushed aside.

H
298 SUPREME COURT REPORTS [2017] 13 S.C.R.

A 12. Moreover, for relying upon the opinion of the ballistic expert,
the High Court observed that no question was put to the accused under
Section 313 Cr.P.C about ballistic expert report (Ex. Al 4). The object
of Section 313 Cr.P.C. is to put a circumstance against the accused so
that he may meet,out the prosecution case and explain the circumstances
brought out by the prosecution to implicate him in the commission of the
B
offence. If any 'Circumstance had not been put to the accused in his
statement, the same shall be excluded from consideration. Of course,
this is subject to a rider whether omission to put the question under
Section 313 Cr.P.C. has caused miscarriage of justice or prejudice to the
accused. As pointed out earlier, in the case in hand, recovery of gun
c from the accused Prem Yadav and the ballistic expert's opinion (Ex.
Al4) is only a corroborative piece of evidence strengthening the
prosecution case as established by the oral testimony of eye witnesses
PW- I and PW-2. Even assuming that the question regarding the ballistic
expert's evidence has not been put to the accused under Section 313
Cr.P.C., in the facts and circumstances of the case in hand, it must be
D
held that it has caused no prejudice to the accused. In our considered
view, the High Court was not right in brushing aside this formidable
circumstance against accused Prem Yadav.
13. For doubting the prosecution case and for acquitting the
accused, the High Court inter alia reasoned:- (i) inconsistency between
E evidence of PW-I and PW-2; (ii) whether it was raining or not on the
night of 30.07 .2003; (iii) PW-I and PW-2 stated that there were four
shots but the deceased had only two fire-arm injuries; (iv) two lacerated
injuries found on the body of the deceased Lalin Singh were not explained;
and (v) that the members of the family who were along with the deceased
F Lalin Singh must have received injuries; absence of such injuries raise
doubt about the prosecution case. The above reasonings recorded by
the High Court, in our considered view, are not adequate to doubt the
credibility of the eye witnesses PW-I and PW-2. As pointed out earlier,
PW- I and PW-2 were about five-six steps behind the deceased and the
accused were about seven-eight steps in front of the deceased. Since
G the gun shots were fired at the deceased, others in the complainant
party may not have sustained gun-shot injuries or they might i.ave tried
to protect themselves.
14. So far as the injuries sustained by the deceased Lalin Singh
are concerned, PW-4-Dr. Rajesh Kumar Srivastava has noted the
H following gun-shot injuries on the body of the deceased:-
STATE OF U.P. v. RAGHUVIR AND ANR. 299
(R. BANUMATHI, J .]

"1. One Entry wound made by bullet towards left side of chest A
measuring 3 cm x 2 cm x deep up to Guha, 2.5 cm below the left
nipple, towards inner and back side. Its edges were towards
inside having reddish.
2. Entry wound of bullet located on left side at upper portion on
the mid auxiliary line measuring 3 cm x 2 cm x deep up to bone, 3 B
cm below the edge ofleft rib cage, whose direction was towards
inside and slightly below. Its edges were turned inside and were
blackish in colour......... "
Even though PW-I and PW-2 have stated that there were four
shots, two gun shots might have hit the deceased as there were only two c
gun-shot injuries and other shots might have missed the target. There is
no justification for blowing such trivial discrepancies to doubt the evidence
of PW-I and PW-2 and the prosecution case and the High Court could
not have referred to the same, much less relied upon the same to reverse
the verdict of conviction. So far as contradiction in the evidence of PW-
1 and PW-2 is concerned, in our considered view, the discrepancies D
pointed out by the High Court neither affect the credibility of PW-1 and
PW-2 nor is fatal to the prosecution case.
15. For reversing the judgment of the trial court, the High Court
mainly relied upon the delay in lodging the FIR. The occurrence was at
about 09.00 P.M. on 30.07.2003 and the FIR was registered on 31.07.2003 E
at about 10.00 A.M. The prosecution has explained the delay stating
that on account o-fheavy rain during the night and fearing of the accused
persons, the complainant party could not lodge the complaint on the night
of30.07.2003. After detailed analysis, the trial court had accepted the
explanation offered by the prosecution for the delay. We find no good F
ground as to why the High Court had taken the different view. Of
course, delay in lo-dging of complaint and the registration ofFIR is normally
viewed with suspicion because there is a possibility of concoction and
the courts should subject evidence as well as contents of FIR to careful
scrutiny. Whether the case of the prosecution is to be registered on the
ground of delay in FIR, depends upon facts and circumstances of each G
case. In the present case, as discussed earlier, the prosecution has
explained the delay in lodging the complaint that is due to heavy rain and
fear of the accused. The High Court, in our view, ought not to have
interfered with the same merely on the ground of delay in setting the law
in motion.
H
300 SUPREME COURT REPORTS [2017] 13 S.C.R.

\
A 16. The High Court has not properly appreciated the evidence of I

eye witnesses PW-I and PW-2 and recovery of gun from the accused
Prem Yadav and the opinion of ballistic expert that empty cartridges
recovered from the scene of occurrence were fired from the gun
recovered from the accused Prem Yadav. The grounds on which the
High Court reversed the judgment of the Sessions Court were not
B
adequate. The High Court has misdirected itself in appreciating the
evidence before it and the reasonings for acquittal of accused Prem
Yadav are not sustainable.
17. Insofar as the other accused Prem Bhujva, Raghuvir and
Mehngu, we do not find any other substantial evidence corroborating
c the evidence of eye witnesses PW-I and PW-2. Two empty cartridges
recovered from the scene of occurrence, were fired from the gun
recovered from the accused Prem Yadav. In the absence of any other
corroborative evidence, the High Court rightly extended the benefit of
doubt to the other three accused viz., Prem Bhujva, Raghuvir and Mehngu.
D 18. In the result, the appeal preferred by the State pertaining to
accused Prem Yadav is allowed. The conviction of accused Prem
Yadav under Section 302 IPC and the sentence of life imprisonment
awarded by the trial court are confirmed. The accused Prem Yadav
shall surrender/taken to custody to serve the remaining sentence.
E 19. Insofar as the appeals preferred by the State, pertaining to
Prem Bhujva, Raghuvir and Mehngu, are dismissed.

Nidhi Jain Appeals disposed of.