Holding

The Supreme Court held that the telephonic information is an FIR, the non‑disclosure of names does not vitiate PW‑1’s testimony, statements under Sections 161 and 164 are admissible, delayed examination of PW‑2 does not render her evidence unreliable, and no adverse presumption under Section 114 applies; therefore the conviction is upheld.

Summary

The appellants, involved in a land dispute, attacked Dayashankar and his brother Ramesh, dismembering the former and severely injuring the latter. Ramesh (PW‑1) survived, narrated the incident to his mother (PW‑2) and nephew (PW‑3), and later gave a statement to the police and a dying declaration to a magistrate. PW‑3 informed the police by telephone but could not disclose the assailants' names due to line disturbance; this information was recorded in the police diary. The trial court acquitted the appellants, holding that the lack of names in the telephonic report and the delayed examination of PW‑2 rendered the prosecution evidence unreliable. The High Court reversed, treating the telephonic report as an FIR and accepting the statements under Sections 161 and 164 CrPC as corroborative. On appeal, the Supreme Court held that the non‑disclosure of names by PW‑3 does not affect PW‑1’s testimony, the telephonic report constitutes an FIR, statements under Sections 161 and 164 are admissible, delayed examination of PW‑2 does not make her evidence unreliable, and no adverse presumption under Section 114 Evidence Act can be drawn. Consequently, the conviction stands and the appeal is dismissed.

Issues considered

The non‑disclosure of the assailants' names by PW‑3 in the telephonic information affects the credibility of PW‑1's testimony.
Whether the telephonic information recorded by police constitutes an FIR under Section 154 CrPC.
The admissibility and evidentiary value of PW‑1's statement recorded by police under Section 161 CrPC.
The admissibility of PW‑1's dying declaration recorded under Section 164 CrPC.
Whether an adverse presumption under Section 114 of the Evidence Act can be drawn for non‑examination of material witnesses.
The effect of delayed examination of PW‑2 on the reliability of her evidence.

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 161, s. 164
Indian Evidence Act, 1872s. 114, s. 32
Indian Penal Code, 1860s. 147, s. 149, s. 302, s. 307

Subjects

murderattempt to murderdying declarationFIRSection 161 CrPCSection 164 CrPCSection 114 Evidence Acttelephonic informationcorroborationriotingcriminal appeal

Judgment

-,., SUNIL KUMAR AND ORS. A
v.
STATE OF MADHYA PRADESH

JANUARY 28, 1997
B
[M.K. MUKHERJEE AND B.N. KIRPAL, JJ.)

Indian Penal Code, 1860-Sections 147, 302/149, 307/149-llfurder and
attempt to murder-Nobody except injured victim presellt at the time of inci-
dent-Victim disclosed names of assailants to the infonnant i11 presence of
another witlles;~lnfonnation reported to police over phone without disclosingc
names of assailants-Held : Non-disclosure of 11ames of assailants to police
over phone by the infomiant will not affect the statement of the victim that
he did disclose the names at the first available opportunity to the infom1ant,
as the same was corroborated by the evidence of other witness present and
~

statement of the victim recorded as dying declaration by the Magistrate and D
_...._
· his statement recorded by tlie police during investigation.

Criminal Procedure Code, 1973-Sections 154, 161, 164-Telephonic
infonnation given by the infonnant disclosing a cognizable offence on the
basis of which police started investigation-Must be treated as FIR under
Section 154-Statement of the victim made to police dwing investigatio11 has E
to be treated as one recorded under 161 Cr.P.C.

Evidence Act, 1872-Sections 32, 114-Dying Dec/aration-Declarant
survivin15Such declaratio11 can be treated as statement recorded under Sec-
tion 164 Cr.P.C.-Can be used for corroboration or contradiction.
F
Due to enmity over a plot of land, the appellants armed with axes,

-
hockey stick and Iathies attacked the deceased. and his brother P.W. 1 and
brutally dismembered them as a result of which the deceased succumbed
to his injuries instantly and P.W. 1 was seriously injured. At the time of
the incident nobody else was present but hearing their cries some G
labourers reached the place of occurrence after the assailants had run
-'. away. Receiving the information, P.W. 2, the mother and P.W. 3, nephew
of the victims rushed to the spot and P.W. 1 narrated the entire incident
and disclosed the names of the appellants as assailants to them. P.W. 3
informed the police over phone about the incident but could not disclose H
589
/

~
590 SUPREME COURT REPORTS (1997) 1 S.C.R.

A the names of the assailants due to disturbance in the telephone line. The Y'
police.recorded it in the daily diary and went to the place of occurrence.
The police recorded the statement of P.W. 1 on the spot and forwarded it
L
to the Police Station for registering a case. The dead body was sent for
post mortem after inquest. P.W. 1 was sent to the hospital and as his
B condition was critical, a dying declaration was recorded by the Magistrate.
After the usual. investigation, the appellants were chargesheeted under
Sections 302/149,307/149 of the India Penal Code.

The Trial Court acquitted the appellants on the grounds that the
first information report given by PW 3 did not disclose their names; no
c other witnesses except the interested witnesses were examined and that
evidence of PWs. 1, 2 and 3 was not reliable. On appeal, reversing the
judgment of the trial court, the High Court held that the findings of the
trial court were perverse and against the evidence on record; the trial court
was wrong to drawn an adverse presumption for non-examination of
D material witnesses; and the evidence of PW 1, as corroborated by P.Ws. 2
and 3 as well as the F .I.R. and the medical evidence clearly proved the case >-
of the prosecution. The appellants filed the present appeal against the
judgment of the High Court.

E Dismissing the appeal this Court

HELD : 1. The finding of the trial court that the evidence of PW 1 is
wholly unreliable is patently perverse. Except the two victims there was
nobody present at the time the assaults actually took place. P.W. 1 was
the sole eye witness. His evidence was corroborated by the evidence of
F P.W. 2, the mother and PW 3, the nephew, of the victims, who reached
the place of occurrence soon after the incident and to whom P.W. 1
narrated the entire incident and also disclosed the names of the as-
sailants. The evidence of PW 1 was also corroborated by his statement
recorded by the police Inspector at the initiation of the investigation on -c::
G the spot, as well as his other statement recorded by the Magistrate as
a dying declaration. Besides, the evidence of the doctors also fully sup-
ports the evidence of P.W. 1. [599-F]
~

2. The trial court erred in acquitting the appellants on account of
H non-disclosure of their names by PW 3 to the police in his telephonic
SUNIL KUMAR. v. STATE 591

information. Even if it is assumed that PW 3 did not disciose the names A
of the assailant,s to the police, it could not in any way affect the testimony
of P.W. 1, or corroboration of such testimony by PW. 3, because not only
P .W. 1 stated that he disclosed the names of the assailants to the inform-
ant PW 3, but PW 3 also asserted that PW 1 did disclose the names of the
assailants to him at the earliest opportunity soon after the incident. PW 2 B
also corroborated the same. The trial court was wrong in forming an
opinion that PW 3 did not know the names of the assailants on the basis
of the wholly unreliable evidence of D.W. 1 whose credibility was proved to
be highly doubtful. [598-E]

3. The evidence of PW 2 was disbelieved by the trial court on the c
ground that she was examined by the investigating officer after one and a
lialf months. This fact by itself should not have been made ground for
disbelieving her for it is expected of a mother who gets information about
the assaults on her sons to immediately rush to their help and ascertain
the details of the assault. Judged in that context, if the Investigating D '
--1' ---(_ Officer did not examine P.W. 2 immediately after the incident, it can only
be said that it was a dereliction of duty his part, but such delayed
examination by itself would not make the evidence of P.W. 2 suspect,
particularly when she was a natural and probable witness and was readily
available for examination by the Investigating Officer. [601-C] E

4. There was no evidence on record to indicate that at the time of the
incident anybody was present so as to entitle the trial court to draw an
adverse presumption against the prosecution under Section 114 of the
Evidence Act for non-examination of material witnesses. The question of
F
presumption under Section 114 of the Evidence Act could have been drawn
only if the defence conld have succeeded in proving that there were other
persons present and had seen the incident and inspite thereof, the prosecu-
tion, without any justifiable reason, withbcld such witnesses. [599-C-G]
--\

5. The High Court erred in·not treating the telephonic information G
that PW 3 gave to the police as the FIR. It is not disputed that P.W. 3 did
give an information to the police station wherein he stated that one person
had been killed and another person had been dismembered and it was
recorded accordingly in the daily diary book-Exp. P/17. The same entry
discloses, notwithstanding the absence of the names of the assailants H
592 SUPREME COURT REPORTS [1997] 1 S.C.R.

A therein, a cognizable offence and it is on that basis that the police initially
started investigation. Exp. P/17 will therefore be the F.I.R. and the state·
ment of P.W. 1 recorded by the Police during the course of investigation
is to be treated as one recorded under section 161 of the Criminal Proce·
dure Code. [601-D·E]
B
6. Immediately after P.W. 1 was taken to the hospital, his statement
was recorded by a Magistrate as a dying declaration which, consequent
upon his survival, is to be treated as a statement recorded under Section
164 Cr. P.C. and can be used for corroboration or contradiction. This
statement recorded by the Magistrate at the earliest available opportunity
C clearly discloses the substratum of the prosecution case including the
names.of the appellants as assailants and there is not an iota of material
on record to show that this was the upshot of his tutoring. On the contrary,
this statement was made at a point of time when PW 1 was in a critical
condition and it was difficult to believe that he would falsely implicate the
D appellants leaving aside the real culprits. There were only some minor
inconsequential contradictions which did not at all impair his evidence; as
such the finding of the trial court that his evidence was discrepant was
~· -
wrong. [60l·G·H, 602-A]

E 7; The trial court also failed to take into consideration another ·~ery
important related aspect of the matter, the lodging of the complaint by
P.W. 1 and his brother the deceased, a few days prior to the incident before
the Superintendent of Police categorically expressing their apprehension
that their lives were in jeopardy as the appellants had openly threatened
F them that they would kill them and therefore they sought for police help.
This fact clearly proves that the appellants practically translated the
threat into action. (602-B]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
896 of 1985.
G
From the Judgment and Order dated 12.9.85 of the Madhya Pradesh
High Court in Cr!. A.No. 1217 of 1982.

K.T.S. Tulsi, R.C. Tambekar, Ms. Anu Molla and Ranjit Kumar' for
H the Appellants.
f-
'
SUNILKUMAR. v. STATE[MUKHERJEE,J.] 593

Sakesh Kumar for Uma Nath Singh for the Respondent. A
The Judgment of the Court was delivered by

M.K. MUKHERJEE : This appeal under Section 379 of the Code of
Criminal· Procedure is directed against the judgment and order dated
September 12, 1985 of the Madhya Pradesh High Court in Criminal Appeal B
No. 1217 of 1982 whereby it set aside the acquittal of the five appellants
of the offences under Sections 147, 302/149 and 307/149 of the Indian Penal
Code recorded in their favour by the Additional Sessions Judge, Nar-
singhpur and convicted them thereunder.

The appellants Sunil Kumar and his father Hargovind are residents
c
of village Chichli within the Police Station of Gotetciriya in the District of
Narsinghpur were they own a rolling mill and the other three appellants
a~e their casual employees. The deceased Dayashankar and his brother
Ramesh Chandra (P.W. 1) also hailed froin the same village and the~
earned their living from cultivation. D
According to _the prosecution case the appellant Hargovind was
,,. trying to forcibly take over the land of the deceased and P .W. I and
threatening them that he would cut their hands and legs. Sometime before
the incident with which we are concerned in this appeal the cattle of Sunil E
Kumar and Hargovind had damaged the standing crops of the deceased
and P.W. 1. When P.W. 1 proteEted a quarrel ensued in course of which
he was beaten up with shoes by Hargovind and appellant Rafu @ Rafiq.
On January 15, 1981 Hargovind and Rafu made an attempt to kill the
deceased 'and P.W. 1 but failed.· Over that incident P.W. 1 lodged a
complaint with the police station. Again on May 30, 1981 P.W. 1 found that F
Hargovind had brought the other three appellants, who were all resident~
of U ttar Pradesh, to their village a:nd apprehending that Hargovind get
them killed, the two brothers lodged a written report before the Superin-
tendent of Police Narsinghpur on June 13, 1981 (Ext. P. 1) seeking police
protection of their lives and properties. The police however turned a deaf G
ear to their complaints.

The further prosecution case is that on July 30, 1981 at or about 9
A.M. the deceased and P.W. 1 went to their field for measuring the work
done by their labourers as that was the day for payment to them. After the
measurements, at or about 10.30 A.M. when they were returning home to H
594 SUPREME COURT REPORTS [1997) 1 S.C.R.

A fetch money for payment to those labourers and on the way had reached
the lane in between the fields of Chhotelal Sahu and Dalchand the five
appellants came from behind. Of them, Sunil Kumar and Suresh were
carrying lathis, Hargovind a hockey stick and Nazim and Rafiq axes,
Hargovind first gave a lathi hlow on the head of P.W. 1 and he fell down.
B Thereafter Rafu and Nazim Hacked him with their axes severing his left
arm and left foot. All of them then attacked the deceased with their
respective weapons in a simiiar fashion severing his right hand and right
foot. Then they fled away.

On hearing that cries of the victims, the labourers, who were working
C in the field of P.W. 1 came to the spot and seeing their condition rushed
to their house to inform Imratibai (P.W. 2), mother of P.W. 1 and the
deceased. On getting the information P.W. 2 hurried to the spot an heard
about the incident from P.W. 1 Dayashankar had, in the meantime, suc-
cumbed to his injuries. Yogendra Kumar (P.W. 3). a nephew of the
deceased and P.W. 1, and some others of the village also reached there
D and to th,;m also P.W. 1 narrated the incident. P.W. 3 then rushed for
medical held but the doctors expressed their unwillingness to attend to the
victims on the plea that as it was a medico legal case they could not do so
without requisition from the police. P.W. 3 then went to the village Post
Office and reported the incident to the police over telephone.
E
On getting the information Inspector V.K. Saxena (P.W. 6) came to
the site of the incident accompanied by Sub-Inspector Mithilesh Tiwari
(PW 8) and other police personnel. Reaching there he recorded the
complaint of P.W. 1 (Ext. P. 2) and after forwarding it to the police station
for registering a case thereupon sent P.w.' 1 to Gadarwara hospital for
F treatment. He then held inquest upon the dead body of Dayashankar and
despatched it for post-mortem examination. From the spot he seized the
severed limbs of the two victims, some blood stained earth and the metal
portion and the handle of an axe in presence of the witnesses.

G Dr. P.K. Budhisagar (P.W. 13), Asstt. Surgeon of Gadarwara Hospi-
tal, examined P.W. 1 and finding his condition critical sent an information
to the police for recording his dying declaration. On receipt of such
massage the police requisitioned the services of the local magistrate who
came to the hospital and recorded his statement (Ext. D.2).

H S.I. AK. Bhandari (P.W. 12), who took up the investigation of the
SUNIL KUMAR. v. STATE [MUKHERJEE, J.} 595
case from P.W. 6 arrested the appellants and pursuant to their respective A
statements seized a lathi and a bush shirt which were blood stained from
Nazim, one blood stained axe from the house of Hargovind, a hockey stick
and a lungi, both blood stained, from Suresh, blood stained kurta and
paijama from Hargovind and blood stained trousers, bush-shirt and
baniyan from Sunil, P.W. 12 prepared separate sealed packets in respect B
of those articles and sent them to Forensic Science Laboratory (F.S.L.) for
chemical examination. After receipt of the reports of F.S.L. and of the
autopsy held on the dead body of Dayashankar by Dr. Dhan Singh (P.W.4),
and on completion of investigation he submitted charge-sheet against the
five appellants.
c
The appellants pleaded not guilty to the charges and stated that they
were falsely implicated. The appellant Rafiq took a plea of alibi also. In
support of their respective cases the prosecution examined thirteen wit-
nesses and defence one.

That Dayashankar (deceased) was brutally murdered and P.W.1 was D
mercilessly beaten up, stand proved by overwhelming evidence on record.
Inspector V.K. Saxena (P.W. 6) testified that when he reached the site of
. the incident he found the dead body of Dayashankar in a bullock-cart and
Ramesh (P.W. 1) lying on the ground nearby, with both of them having
one of their legs and hands amputated. Under his directions S.l. Mithilesh E
Tiwari (P.W. 8) seized those severed parts. besides other articles found
there (P.W. 8) fully corroborated the above testimony of P.W. 6. Dr. Dhan
Singh (P.W. 4), who held autopsy on the dead body of Dayashankar on
July 31, 1981, stated that he found t):ie following injuries on his person :

"l. Lacerated wound l" x 1/2" bond deep in the right parieto F
occipital region;

2. Lacerated wound 3/4" x 1/3" x 1/3" on the parietal region;

3. Incised wound 3" x 1/2" x bone deep just left or the mid line; G

4. Lacerated would 2" x 1/2" x bone deep on the frontal region just
right of mid line;
'
5. Bruise 2-1/2" x 1/2" just lateral of right eye brow with swelling
in right temple 4" x 3"; H
596 SUPREME COURT REPORTS (1997) 1 S.C.R.

A 6. Abrasion 1-1)4" x 1/2" over the right shoulder; y

7. Abrasion 1/2" x 1/2" on top of the right shoulder;

8. Bruise 4-1/2" x 1/2' on left forearm, close to elbow joint;

B 9. Incised wound cutting whole thickness of the right forearm
separating the hand from rest of the body. Ulna and radius cut in
one plane· slightly oblique-just above the wrist joint;

10. Bruise 3" x 2"on the right thigh;

C. ll. Incised wound involving th.e whole thickness of the right leg
just above ankle joint skin flap cut in different directions suggesting
more than one blows with sharp weighty object - chopping the right
foot off from rest of the body. Tibia and fibula bones cut in two
different planes; and

D 12. Incised would 1-3/4" 1" x bone deep on anterior aspect of left
leg 3" above the ankle joint. Tibia Cut 1/3rd deep."

He opined that all the injuries were ante-mortem and injury Nos. 1,
2, 4, 5, 6, 7, 8 and 10 were caused by hard and blunt object while injuries
E No. 3, 9, 11and12 were caused by sharp and heavy object. According to
P.W. 4 injuries No. 3, 4, 5, 9 and 11 were individually and collectively
sufficient to cause death. He further opined that the incised wounds seen
by him could be caused by a heavy sharp oliject like axe.

Dr. P.K. Budhisagar (P.W.13) who examined P.W.1 on July 30, 1981
p at or about 5 P.M. testified that he found the following injuries on his
person:

"1. lacerated wound 3" x 1/2" x bone deep over sealp, 3" behind
mastoid;

-G 2. Lacerated wound l" x 1/4" x bone deep, 1-1/2" above injury No.
1;

3. Lacerated wound 2" x 1/4" x bone deep on the left side of midline
and 1" above injury No. 1;.

H 4. Lacerated wound 3" x 1/4" x bone deep on mid line 1" above
SUNlL KUMAR. v. STATE [MUKHERJEE, J.] 597

-'-+
injury No. 3; A
5. Lacerated wound 2" x 1/4" x bone deep l-1/2" above injury No.
4;

6. Lacerated wound 4" x 1/4" x bone deep over mid line joining
both traqus of the ears; B
7. Lacerated wound 4" x 1/4" x bone deep, 1-1/2" above injury No.
6;

8. Left arm fully cut, below elbow muscles, nerves bone cut in
oblique line from lateral to medial side; C
9. Left leg out at ankle joint, clean cut 13" below tibial tuberosity;
oblique medial to tuberosity; oblique medial to lateral side. Tibial
fibula and a tendons cut;

10. Incised wound 1-1/2" x 1/2" x 1/2" x 4" above right wrist on the D
antero lateral aspect;

11. Incised wound 2" x 1" x bone deep 1" above right wrist. Bone
cut in the depth or wound. Gap is 3" deep including bone thickness;
E
12. Incised wound 3" x 2" x 2" 2" above injury No. 11 muscle tendons
cut and bone fractured; and

13. Incised wound 2" x 1-1/2" x 2", 1-1/2" above injury No. 12; muscle
cut and bone fractured."
F
He opined that the injuries found by him on the right arm, left leg
and left arm were caused by a heavy and sharp instrument like axe and
wounds .on scalp were caused by hard and blunt object like hockey stick.
He further opined that all the injuries collectively were sufficient to cause
death if the patient was not treated in time.
G
Considering the nature, number and extent of injuries inflicted on
Dayashankar (deceased) and Ramesh (P.W.1) there cannot be any manner
of doubt that whoever caused those injuries are guilty of the offences of
committing murder and attempting to commit murder respectively. The
!lext and crucial question that falls for our determination is whether the H
598 SUPREME COURT REPORTS [1997] 1 S.C.R.
A appellants are the authors of the above crimes as alleged by the prosecu-
tion.

The main stay of the prosecution to prove this. part of its case is,
needless to say, Ramesh (P.W.1), who detailed the incident as well as the
B events leading thereto. To corroborate his evidence the prosecution relied
upon the fact that immediately after the assaults took place, he narrated
incident to his mother (P.W. 2), and nephew (P.W. 3) who reached there.
Besides, his statements, one made before Sh. V.K. Saxena, Inspector of
Police (P.W. 6), which was treated as the F.I.R. (Ext. P. 2) and the other
before the Magistrate, (Ext. D. 2), which was then recorded_ as a dying
C declaration wer_e pressed into service as corroborative evidence. To prove
that the ocular evidence of P.W. 1 fitted in with the injuries sustained by
him and his brother the prosecution examined the two doctors referred to
earlier.

D From the judgment of the trial court we find that the principal reason
which weighed with it for disbelieving the prosecution case altogether was
the fact that in the message that Yogendra (P.W. 3) gave to the police
regarding the incident, after having been apprised of the same by P.W. 1
and which was recorded by the police in the station diary book (Ex. P. 17),
he did not disclose the names of the assailants. According to the trial court
E if really P.W. 1 had disclosed the names of the assailants to P.W. 3 it was
expected, in the fitness of things, that he would disclose those names in his
telephonic message to the police. Such non-disclosure of the names accord-
ing to the trial court, completely belied the prosecution story that the
appellants were the perpetrators of the crimes in question. The other
p related observation the trial court made was that since the telephonic
massage disclosed to cognizable offence and pursuant thereto the police
had come to the spot anr.I started investigation, the statement that was
made by P.W. 1 before the inspector of Police (P.W. 6) was hit by Section
162 Cr.P.C and consequently, the prosecution's claim that the evidence of
P.W. 1 was corroborated by the said statement, being the FIR, could not
G be legally entertain, Another reason which weighed with the trial court in
disbelieving the prosecution case was that it did not examine any labourers
or any other person who were working in the field near the site of the
incident to prove the incident and instead thereof, relied upon the
evidence of only two interested witnesses, namely, _P.W. 2 and P.W. 3, who,
H on their own showing, came after the incident was over. The trial court
-l

SUNIL KUMAR- v. STATE [MUKHERJEE, J.] 599
lastly observed that even the evidence of the sole eye-witness, namely P.W. A
1 was also discrepant.

In reversing the judgment of the trial court, the High Court held that
the findings of the trial court were perverse and against the evidence on
record. According to the High Court the cryptic message that was give by B
P.W. 3 over telephone to the police could not be treated as F.l.R., more
particularly, when he testified that owning to disturbance in the telephone
line he could not disclose the details of the incident; and the: statement
given by P.W. 1 before P.W. 6 (Ext. P. 2) was the F.l.R. of the case. The
High-Court next observed that there was no evidence on record to indicate
that at the time the incident actually took place anybody was present so as C
to entitle the trial court to draw an adverse presumption against the
prosecution under Section 114 (illustration 'q') of the Evidence Act for
non-examination of material witness. The__High Court lastly observed that
the evidence of--P.W. 1, as corroborated by P.W. 2 and P.W. 3, who came
immediately aftc::r the occurrence, the F.I.R. and the medical evidence D
clearly prove the case of the prosecution. In drawing the abovt conclusions
the High Court also took note of the fact that only a few days prior to the
incident .the deceased and his brother had in their complaint befon; the
police (Ex. Pl) categorically expressed their apprehension that their lives
and properties were in jeopardy as these accused persons had openly given
out that they would kill them after cutting them to pieces. E

This being a statutory appeal we have carefully gone through the
entire evidence on record and the judgment of the learned Courts below.
Our such exercise persuades us to unhesitatingly hold that the finding of
the trial court that the evidence of P.W. 1 is wholly unreliable is patently F
perverse. Considering the fact that except the two victims (P.W. 1 and the
deceased) there was nobody else present at the time the assaults actually
took place-as the evidence on record clearly indicates there could not be
any other witness to the incident. The question of presumption under
Section 114 of the Evidence Act could have been drawn in the instant case G
only if the defence could have succeeded in proving that there were other
persons present and had seen the incident and inspite thereof the prosecu-
tion, without any justifiable reason, withheld such witnesses. Corning now
to the evidence led by the prosecution to corroborate P.W. 1, who detailed
the entire prosecution case, Irnarti Bai (P.W. 2) stated that on getting the
news that Dayashankar was lying dead and Ramesh injured· she rushed to H
600 SUPREME COURT REPORTS [1997] 1 S.C.R.

A the place and gave him some water as he was asking for the same. When
she asked Ramesh as to how he sustained those injuries and Dayashankar
died, he (P.W.1) detailed the entire incident including the names of the
appellants as the assailants. The evidence of P.W. 2 was disbelieved by the
trial court on the ground that she was examined by the investigating officer
B ifter one and a half months. This fact by itself should not, and could not;
have been made a ground for disbelieving her for it is expected of a mother
who gets information about the assault on his sons to immediately rush to
their help and ascertain the details of the assault. Judge in that context, if
the Investigating Officer did not examine P.W. 2 immediately after the
incident it can only be said that it was a dereliction of duty on his part; but
C such delayed examination by itself would not make the evidence of P.W. 2
suspect, particularly when she was a natural and probable witness and was
readily available for examination by the Investigating Agency.

Equally important in a instant case is the evidence of P.W. 3, who
D testified that when he came to the spot and talked to Ramesh who was
lying injured he told him about the incident as also the names of the
assailants. As already noticed it was P.W. 3 who gave information to the
police about the incident over telephone. In his testimony he said that when
he contacted the police from the sub post office over telephone he get a
reply that they could not hear properly, However he could succeed only in
E communicating that there was a fight in which hands and legs of two
persons were cut. In cross examination he admitted that he did not tell the
names of the accused persons over phone; but explained that owing to
some disturbance on the telephone line he could not properly communi-
cate. To disprove the above explanation of P.W. 3 the defence examined
F Harishankar Dubey (D.W. 1), the then Assistant Postmaster of the sub post
office. He testified that on July 13, 1981 one Yogendra came to the post
office and asked him to book a telephone call to Gotetoriya Police Station.
He (D.W. 1) asked him as to why he wanted to book a phone and in reply
to its query told that he wanted to give a message that a person was
murdered and another seriously injured. When he asked him as to who
G were the· assailants Yogendra told him that he did not know their names.
Relying upon the above evidence of D.W. 1 the trial court held that the
prosecution version that the appellants were the assailants could not be
accepted. In disbelieving D.W. 1 the High Court, however, pointed out that
he figured as a witness for the prosecution and only when he was given up
.H as hostile to it, that the defence examined him. According to the High
SUNIL KUMAR. v. STATE [MUKHERJEE, J.] 601

Court even though in his examination in chief he stated that he could hear A
• all that was being conveyed by Y ogendra over telephone, in cross-examina-
tion he admitted that he could not hear anything. Besides the above
grounds, the other reason which persuades us to hold that he was an
,.. unreliable witness is, that it being no part of his duty to ascertain why P .W.
3 wanted to book a call or what message he wanted to convey, his claim
B
that he was present as the time P.W. 3 talked over the phone is not tenable.
We hasten to add that even if we proceed on the assumption that Yogendra
did not disclose the names of the assailants over the phone it would not in
-,/
any way affect the testimony of P.W. 1, or corroboration of such testimony
by P.W. 3, for P.W. 1 not only stated that he disclosed the names of the
assailants to P.W. 3, but P.W. 3 also asserted that P.W. 1 did tell the names c
of the assailants to him. In other words, the evidence of P.W. 1 that at the
earliest opportunity he disclosed the names of the appellants as his as-
sailants to P.W. 3 was corroborated by P.W. 3.

While on this point we wish to mention however that the High Court D
erred in not treating the telephonic information that P.W. 3 gave to the
...
police station as the F.I.R. It is not disputed that P.W. 3 did give an
information to the police station wherein he stated that one person had
been killed and another person had been dismembered and it was recorded
~
accordingly in the daily diary book (Ex. P/17). The same entry discloses, E
notwithstanding the absence of the names of the assailants therein, a
cognizable offence and indeed it is on the basis thereof that P.W. 6 initially
started their investigation. Ext. P/17 will therefore be the F.I.R. and the
statement of Ramesh (Ext. P.2) which was recorded by him in course of
the investigation is to be treated as one recorded under Section 161 Cr.P.C.
This conclusion of owns, however, does not in any way affect the merits of
F
the prosecution case for we find that immediately after P.W. 1 was taken
to the hospital his statement was recorded by a recorded as a dying
declaration which, consequent upon has survival, is to be treated only as a
statement recorded under Section 164 Cr.P.C. and can be used for cor-
roboration or contradiction. This statement recorded by the Magistrate at G
the earliest available opportunity clearly discloses the substratum of the
prosecution case including the names of the appellants as the assailants
_. and there is not an iota of materials on record to show that this was the
~

upshot of his tutoning. On the contrary, this statement was made at a point
of time when P.W. l wa:; in a critical condition and it is difficult to believe H
602 SUPREME COURT REPORTS [1997] 1 S.C.R.

A that he would falsely implicate the appellants leaving aside the real culprits.
In view of the observation of the trial court that his evidence was discrepant +-
we carefully looked into the same and found that there was only some
inconsequential contradictions which did not at all impair his evidence.
Then again, as already noticed, the evidence of the doctors fully supports
B his version of the incident. Another related aspect of the matter is the
lodging of the complaint by P.W.1 and his brother before the Superinten-
dent of Police (Ext. P-1) (which we have earlier referred to) wherein they
sought for police action against the threat meted out by the appellants that
they would cut them lo pieces - a threat which was brutally (anJ literally)
translated into action.
c
As from the evidence on record we are satisfied that the appellants
committed rioting and in course thereof they killed Dayashankar and
attempted to kill Ramesh we uphold the judgment of the High Court and
dismiss the appeal. The appellants, who are no bail, shall now surrender
D to their bail bonds to serve out the sentence imposed upon them by the
High Court.

H.K. Appeal dismissed.