# 15 (ADDL.) S.C.R. 1 BRAHM SWAROOP & ANR v. STATE OF U.P

- **Citation:** [2010] 15 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2010-10-26
- **Case number:** Criminal Appeal No. 1235 of 2005
- **Bench:** P. Sathasivam, Dr. B.5. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/15-addl-s-c-r-1-brahm-swaroop-anr-v-state-of-u-p-26737
- **Pages:** 36

## Headnote

Penal Code, 1860 - ss. 302134 and 307134 - Prosecution
under - 6 accused causing death of 4 persons - Trial court
convicted accused Nos. 2 and 3 u/s. 302!34_J3lld accused C
Nos. 1 and 4 ulss. 302134 and 307134 -Accused Nos. 5 and
6 acquitted of all the charges i.e. uls. 148, 302, 149, 307, 396,
424 /PC and s. 25 of Arms Act - High Court confirming the
conviction order and setting aside the acquittal order,
convicted accused Nos. 5 and 6 u/ss. 302134 and 307134 and o
upheld the acquittal uls. 25 of Arms Act - On appeal, held: In
view of the trustworthy evidence of the injured eye-witness and
other eye-witnesses, conviction of the accused persons is
justified - Acquittal u/s. 25 was correct - Arms Act, 1959 - s.
25.
E
Code of Criminal Procedure, 1973 - s. 17 4 - Inquest
report - Evidentiary value of - Held: Inquest report cannot be
treated as substantive evidence - It can be utilized only for
contradicting the evidence of witnesses of the inquest -
Omissions in the inquest report are not sufficient to put the
F
prosecution out of court.
Witnesses:·
Evidence of witnesses - Discrepancies in - Effect of -
G
Held: Minor discrepancies which do not shake the basic
version of the prosecution case, cannot itself prompt the court
to reject the evidence in its entirety.
Eye-witness - Evidentiary value of - Held: Evidence of
1
H
2
SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A eye-witnesses cannot be discarded if their names do not figure
in the inquest report - If the evidence of eye-witnesses is
credible, question of motive becomes irrelevant - Motive.
Related witness -
Evidentiary value of -
Held:
8
Relationship of the witness with the deceased is not a factor
which effects his credibility - However, in such cases the court
has to adopt a careful approach and analyse the evidence
so as to find out its credibility.
Injured witness - Evidentiary value of - Held: Generally
C such witness is considered to be reliable -
Convincing
evidence is required to discredit an injured witness.
Criminal Trial - Delay in sending FIR to the Magistrate
- Effect of - Held: An unexplained delay by itself may not be
0
fatal.
Appeal - Appeal against acquittal - Interference with -
Scope of - Discussed.
Appellants-accused, alongwith other accused, were
E prosecuted for having caused death of 4 persons. The
prosecution case was that deceased No. 1 had an enmity
with the family of accused No. 1. On the day of the
incident, accused Nos. 1 to 6 surrounded the deceased
persons and the informant (PW1), and started firing at
F them with their respective weapons. Deceased No. 1 died
on the spot. Deceased Nos. 2 and 4 sustained serious
injuries and as a result, became unconscious. Deceased
No. 3 and PW1 also sustained injuries. Accused No. 5
took away the rifle of deceased No. 2 and accused No. 6
G took away the licensed gun of one 'G' who had kept the
same in his jeep. PW2 and one 'S' were also the eyewitnesses to the incident. Deceased Nos. 2, 3 and 4 later
succumbed to the injuries. The trial court acquitted
accused Nos. 5 and 6 of all the charges i.e. u/ss. 148, 302,
H
BRAHM SWAROOP & ANR. v. STATE OF U.P.
3
149, 307, 396 and 424 IPC and u/s. 25 of the Arms Act,
A
1959. Accused Nos. 3 and 2 were convicted for the
offence punishable u/s. 302/34 IPC and were awarded
death sentence. Accused Nos. 1 and 4 were convicted for
the offences punishable u/s. 302/34 and 307/34 and were
awarded imprisonment for life. Accused persons as well · B
as the State filed appeals before the High Court against
the orders of conviction and acquittal respectively. The
High Court dismissed the appeals filed by the accused
persons with the modification that the death sentence
was altered to life imprisonment. Allowing the appeal filed c
by the State, the High Court convicted accused Nos. 5
and 6 for the offences punishable u/ss. 302/34 and 307/
34 IPC and awarded life imprisonment.
In the instant appeals, the appellant-accused
contended that the prosecution did not disclose the D
genesis

## Text

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[201 O] 15 (ADDL.) S.C.R. 1
BRAHM SWAROOP & ANR.
A
V.
STATE OF U.P.
(Criminal Appeal No. 1235 of 2005)
OCTOBER 26, 2010
B
[P. SATHASIVAM AND DR. B.5. CHAUHAN, JJ.]
Penal Code, 1860 - ss. 302134 and 307134 - Prosecution
under - 6 accused causing death of 4 persons - Trial court
convicted accused Nos. 2 and 3 u/s. 302!34_J3lld accused C
Nos. 1 and 4 ulss. 302134 and 307134 -Accused Nos. 5 and
6 acquitted of all the charges i.e. uls. 148, 302, 149, 307, 396,
424 /PC and s. 25 of Arms Act - High Court confirming the
conviction order and setting aside the acquittal order,
convicted accused Nos. 5 and 6 u/ss. 302134 and 307134 and o
upheld the acquittal uls. 25 of Arms Act - On appeal, held: In
view of the trustworthy evidence of the injured eye-witness and
other eye-witnesses, conviction of the accused persons is
justified - Acquittal u/s. 25 was correct - Arms Act, 1959 - s.
25.
E
Code of Criminal Procedure, 1973 - s. 17 4 - Inquest
report - Evidentiary value of - Held: Inquest report cannot be
treated as substantive evidence - It can be utilized only for
contradicting the evidence of witnesses of the inquest -
Omissions in the inquest report are not sufficient to put the
F
prosecution out of court.
Witnesses:·
Evidence of witnesses - Discrepancies in - Effect of -
G
Held: Minor discrepancies which do not shake the basic
version of the prosecution case, cannot itself prompt the court
to reject the evidence in its entirety.
Eye-witness - Evidentiary value of - Held: Evidence of
1
H
2
SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A eye-witnesses cannot be discarded if their names do not figure
in the inquest report - If the evidence of eye-witnesses is
credible, question of motive becomes irrelevant - Motive.
Related witness -
Evidentiary value of -
Held:
8
Relationship of the witness with the deceased is not a factor
which effects his credibility - However, in such cases the court
has to adopt a careful approach and analyse the evidence
so as to find out its credibility.
Injured witness - Evidentiary value of - Held: Generally
C such witness is considered to be reliable -
Convincing
evidence is required to discredit an injured witness.
Criminal Trial - Delay in sending FIR to the Magistrate
- Effect of - Held: An unexplained delay by itself may not be
0
fatal.
Appeal - Appeal against acquittal - Interference with -
Scope of - Discussed.
Appellants-accused, alongwith other accused, were
E prosecuted for having caused death of 4 persons. The
prosecution case was that deceased No. 1 had an enmity
with the family of accused No. 1. On the day of the
incident, accused Nos. 1 to 6 surrounded the deceased
persons and the informant (PW1), and started firing at
F them with their respective weapons. Deceased No. 1 died
on the spot. Deceased Nos. 2 and 4 sustained serious
injuries and as a result, became unconscious. Deceased
No. 3 and PW1 also sustained injuries. Accused No. 5
took away the rifle of deceased No. 2 and accused No. 6
G took away the licensed gun of one 'G' who had kept the
same in his jeep. PW2 and one 'S' were also the eyewitnesses to the incident. Deceased Nos. 2, 3 and 4 later
succumbed to the injuries. The trial court acquitted
accused Nos. 5 and 6 of all the charges i.e. u/ss. 148, 302,
H
BRAHM SWAROOP & ANR. v. STATE OF U.P.
3
149, 307, 396 and 424 IPC and u/s. 25 of the Arms Act,
A
1959. Accused Nos. 3 and 2 were convicted for the
offence punishable u/s. 302/34 IPC and were awarded
death sentence. Accused Nos. 1 and 4 were convicted for
the offences punishable u/s. 302/34 and 307/34 and were
awarded imprisonment for life. Accused persons as well · B
as the State filed appeals before the High Court against
the orders of conviction and acquittal respectively. The
High Court dismissed the appeals filed by the accused
persons with the modification that the death sentence
was altered to life imprisonment. Allowing the appeal filed c
by the State, the High Court convicted accused Nos. 5
and 6 for the offences punishable u/ss. 302/34 and 307/
34 IPC and awarded life imprisonment.
In the instant appeals, the appellant-accused
contended that the prosecution did not disclose the D
genesis of the case correctly; that the inquest was
manipulated; that the use of the weapons alleged were
not established; that there was delay in sending the
special report to the Magistrate; that the deceased Nos.
2 and 4 were history-sheeters and had large number of E
enemies, and thus there was possibility of somebody
else having killed them; that the evidence of the first
informant could not be relied on as he could not tell the
names of fathers of PWs 5 and 6; that the prosecution
failed to examine independent witnesses; and that
F
reversal of the acquittal order of accused Nos. 5 and 6
by the High Court was unjustified.
Dismissing the appeals, the Court
HELD: 1.1. Evidence of eye-witnesses can not be G
discarded if their names do not figure in the inquest report
prepared at the earliest point of time. The object of the
proceedings u/s. 174 Cr.PC is merely to ascertain whether
a person died under suspicious circumstances or met
H
4
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A with an unnatural death and, if so, what was its apparent
cause. The question regarding the details of how the
deceased was assaulted or who assaulted him or under
what circumstances he was assaulted is foreign to the
ambit and scope of such proceedings i.e. the inquest
B report is not the statement of any person wherein all the
names of the persons accused must be mentioned.
Omissions in the inquest report are not sufficient to put
the prosecution out of court. The basic purpose of
holding an inquest is to report regarding the apparent
c cause of death, namely, whether it is suicidal, homicidal,
accidental or by some machinery etc. It is, therefore, not
necessary to enter all the details of the overt acts in the
inquest report. The inquest report cannot be treated as
substantive evidence but may be utilised for contradicting
0 the witnesses of inquest. [Para 7] [20-G-H; 21-A-B]
Podda Narayana and Ors. v. State of Andhra Pradesh
AIR 1975 SC1252; Khujji v. State of Madhya Pradesh AIR
1991 SC 1853; Georgeand Ors. v. State of Kera/a and Anr.
(1998) 4 SCC 605; Shaikh Ayub
v. State of Maharashtra
E (1998) 9 SCC 521; Suresh Rai v. State of Bihar (2000) 4 SCC
84; Amar Singh v. Ba/winder Singh and Ors. (2003) 2 SCC
518; Radha Mohan Singh alias Lal Sahab and Ors. v. State
of Uttar Pradesh (2006) 2 SCC 450; Aqeel Ahmad v. State
of UttarPradesh AIR 2009 SC 1271 - relied on.
F
1.2 Even where, the attention of the author of the
inquest is drawn to the alleged discrepancy, overwriting,
omission or contradiction in the inquest report and the
author in his deposition has also admitted that through
G a mistake he omitted to mention the crime number in the
inquest report, just because the author of the report had
not been diligent did not mean that reliable and clinching
evidence adduced by the eye-witnesses should be
discarded by the court. [Para 9] [21-G-H; 22-A]
H
BRAHM SWAROOP & ANR. v. STATE OF U.P.
5
Dr. Krishna Pal and Anr. v. State of Uttar Pradesh (1996)
A
7 sec 194 - relied on
1.3 In the instant case, it cannot be said that any
omission or discrepancy in the inquest is fatal to the
prosecution's case and such omissions would
8
necessarily lead to the inference that FIR is ante-timed.
The Sub Inspector (PW.7) had denied the suggestion
made by defence that till the time of preparing the report,
the names of the accused persons were not available. He
further stated that the column for filling up the nature of
weapons used in the crime was left open as it could be C
ascertained only by the Doctor what weapons had been
used in the crime. [Para 1 O] [22-B-C]
Bairam Singh and Anr. v. State of Punjab (2003) 11 SCC
286; State of Rajasthan v. Teja Singh and Ors. (2001) 3 SCC
D
147; Ramesh Baburao Devaskar and Ors. v. State of
Maharashtra (2007) 13 SCC 501 ; Sarvesh Narain Shukla v.
Daroga Singh and Ors. AIR 2008 SC 320; Aqeel Ahmad v.
State of Uttar Pradesh AIR 2009 SC 1271 - relied on.
Badam Singh v. State of M.P. (2003) 12 SCC 792 -
E
referred to.
2.1 The report to the Magistrate is indispensable and
absolute and it must be sent at the earliest, promptly and
without any undue delay as the purpose is to avoid the
F
possibility of improvement in the prosecution's case and
the introduction of a distorted version by deliberations
and consultation and to enable Magistrate concerned to
keep a watch on progress of investigation. However, no
rule of universal application can be laid down that G
whenever there is some delay in sending the FIR to the
Magistrate, the prosecution version becomes unreliable.
It would depend upon the facts of each case. If there has
been some lapse on the part of the Investigating Officer
H
6
SUPREME COURT REPORTS [2010) 15 (ADDL.) $.C.R.
A that would not affect the credibility of the prosecution's
witnesses. In case the prosecution offers a satisfactory
explanation for the delay, the court has to test it. An
unexplained delay by itself may not be fatal, but it is
certainly a relevant aspect which can be taken note of
B while considering the role of the accused persons for the
offence. [Paras 15 and 16] [23-F-H; 24-A-D]
2.2 In the instant case, the prosecution had not been
asked to explain the delay in sending the special report.
More so, the plea that the FIR was ante-timed, cannot be
C accepted in view of the evidence available on record
which goes to show that the FIR had been lodged
promptly within 20 minutes of the incident as the Police
Station was only 1 k.m. away from the place of
occurrence and names of all the accused had been
D mentioned in the FIR. [Para 18] (25-B]
State of Kera/a v. Anilachandran @ Madhu and Ors. AIR
2009 SC 1866; Pala Singh v. State of Punjab AIR 1972 SC
2679; Sarwan Singh v. State of Punjab AIR 1976 SC 2304;
E PandurangChandrakant Mhatre and Ors. v. State of
Maharashtra (2009) 10 SCC 773; Akbar Sheikh and Ors. v.
State of WB. (2009) 7 sec 415 - relied on.
3. Courts attach great importance to the prompt
lodging of FIR and prompt interrogation of a witness u/
F s. 161 Cr.P.C. as the same substantially eliminates the
chances of embellishment and concoction creeping into
the account contained therein. The prompt lodging of the
FIR is proved from the chik report and the statement of
the complainant u/s. 161 Cr.P.C., which was recorded
G immediately after lodging the FIR. Any defect in the
preparation of the inquest report by the investigating
officer cannot lead to an inference that the FIR was not
registered at the alleged time. The FIR contains all the
essential features of the prosecution's case including
H names of eye-witnesses, time and place of incident,
BRAHM SWAROOP & ANR. v. STATE OF U.P.
7
names of the victim, motive, name of the accused
A
persons, weapons in their hands and manner of assault.
Thus, all these things lend a seal of assurance not only
to the presence of eye-witnesses at the place of the
incident, but also to the participation of the appellants in
the crime. [Para 18] [25-F-H; 26-A]
B
4. The eye-witnesses have been cross-examined
thoroughly, but nothing useful to the accused could be
elicited from them. The testimony of the eye- witnesses
is credible and worthy of confidence. If the evidence of
the eye-witnesses is trustworthy and believed by the
C
court, the question of motive becomes totally irrelevant.
[Para 37] [35-E; 36-B]
5. The plea of the accused that the place of
occurrence is not free from doubt as it has been stated
D
by the Investigating Officer (PW.10) that on receiving the
phone call purported to have been made from the
residence of D.1 that dacoits had attacked them, he made
an entry in the General Diary, and proceeded to that place
and recorded the statement of some persons there; and
that vehicle in which D.2 and D.4 were sitting did not have
any blood marks and no blood stains were. found near
the jeep and no pellets had been recovered from the said
place, is not acceptable. If this plea is accepted then the
question of collecting the blood stained cement from the
counter of the repairing shop could not arise. The 1.0.
(PW.10) has stated that the tool box was found marked
with splinters and badly damaged. More so, the statement
E
F
of PW.1, the informant, cannot be ignored as he has
stated that 0.3 was bleeding but blood did not fall on the
G
ground as his clothes absorbed all the blood. He had
further stated that D.1 was sitting at the counter and there
was quite a lot of blood from the wounds of D.1 which
fell on the ground and not on the counter. [Paras 19 and
20] [26-8-H]
H
8
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
6. Merely because the witnesses were close relatives
of the deceased, that cannot be a ground to discard their
evidence. Their relationship to one of the parties is not a
f<1ctor that effects the credibility of a witness, more so, a
relation would not conceal the actual culprit and make
B allegations against an innocent person. A party has to lay
down a factual foundation and prove by leading
impeccable evidence in respect of its false implication.
However, in such cases, the court has to adopt a careful
approach and analyse the evidence to find out whether
C it is cogent and credible evidence. [Paras 21) [27-B-C]
Dalip Singh and Ors. v. State of Punjab AIR 1953 SC
364; Masalti v. State of U.P. AIR 1965 SC 202; Lehna v. State
of Haryana (2002) 3 SCC 76; Rizan and Anr. v. State of
Chhattisgarh Through The Chief Secretary, Government of
D Chhatisgarh, Raipur, Chhatisgarh (2003) 2 SCC 661 - relied
on.
7.1 Where a witness to the occurrence has himself
been injured in the incident, the testimony of such a
E witness is generally considered to be very reliable, as he
is a witness that comes with a built-in guarantee of his
presence at the scene of the crime and is unlikely to spare
his actual assailant(s) in order to falsely implicate
someone. "Convincing evidence is required to discredit
F an injured witness." [Para 22) [27-F-G]
State of UP. v. Kishan Chand and Ors. (2004) 7 SCC
629; Krishan and Ors. v. State of Haryana (2006) 12 SCC
459; Dinesh Kumar v. State of Rajasthan (2008) 8 SCC 270;
Jarnail Singh and Ors. v. State of Punjab (2009) 9 SCC 719;
G Vishnu and Ors. v. State of Rajasthan (2009) 10 SCC 477;
Anna Reddy Sambasiva Reddy and Ors. v. State of Andhra
Pradesh AIR 2009 SC 2661; Balraje @ Trimbak v. State of
Maharashtra (2010) 6 SCC 673 - relied on.
H
7.2 In the instant case, the injured witness PW.1 has
BRAHM SWAROOP & ANR. v. STATE OF U.P.
9
been examined, his testimony cannot be discarded, as his
A
presence on the spot cannot be doubted, particularly, in
view of the fact that immediately after lodging of FIR, the
injured witness had been medically examined on the
same day. without any loss of time. The injured witness
had been put through a grueling cross-examination but
B
nothing can be elicited to discredit his testimony. [Para
21] [27-E]
8. In the fact-situation of the instant case, though D.1
was history-sheeter and D.2 and D.4 had criminal cases
C
against them and they had large number of enemies, it
cannot be inferred that somebody else had killed them.
[Para 23] [28-8]
9.1 While appreciating the evidence of a witness,
minor discrepancies on trivial matters, which do not D
affect the core of the prosecution's case, may not prompt
the court to reject the evidence in its entirety. "Irrelevant
details which do not in any way corrode the credibility of
a witness cannot be labelled as omissions or
contradictions." Difference in some minor detail, which
does not otherwise affect the core of the prosecution
case, even if present, would not itself prompt the court
E
F
to reject the evidence on minor variations and
discrepancies. After exercising care and caution and
sifting through the evidence to separate truth from
untruth, exaggeration and improvements, the court
comes to a conclusion as to whether the residuary
evidence is sufficient to convict the accused. Thus, an
undue importance should not be attached to omissions,
contradictions and discrepancies which do not go to the
G
heart of the matter and shake the basic version of the
prosecution witness. As the mental capabilities of a
human being cannot be expected to be attuned to absorb
all the details, minor discrepancies are bound to oc.cur
in the statements of witnesses. [Paras 25] [28-H; 29-A-C]
H
10
SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A
9.2 In the facts and circumstances of the case, there
was no conflict between the direct evidence and medical
evidence. Even if deceased were having some minor
abrasions and contusions for the reason that they might
have reacted to the assault and tried to save themselves,
B cannot create a doubt in the prosecution case about the
presence of the witnesses. The High Court has furnished
a cogent explanation for contradiction between the
medical and ocular evidence. [Paras 25 and 37] [35-H; 36A]
c
D
State of UP. v. M.K. Anthony AIR 1985 SC 48; State of
Rajasthan v.Om Prakash AIR 2007 SC 2257; State v.
Saravanan and Anr. AIR 2009 SC 152; Prithu @ Prithi Chand
and Anr. v. State of Himachal Pradesh (2009) 11 SCC 588 -
referred to.
10.1 The appellate court should not ordinarily set
aside a judgment of acquittal in a case where two views
are possible, though the view of the appellate court may
be more, the probable one. While dealing with a judgment
E of acquittal, the appellate court must consider the entire
evidence on record, so as to arrive at a finding as to
whether the views of the trial court were perverse or
otherwise unsustainable. The appellate court is entitled
to consider whether in arriving at a finding of fact, the trial
F court had failed to take into consideration any admissible
evidence and/or had taken into consideration evidence
brought on record contrary to law. Similarly, the incorrect
placing of the burden of proof may also be a subject
matter of scrutiny by the appellate court. The court of
G appeal may not interfere where two views are possible
for the reason that in such a case it can be held that
prosecution failed to prove the case beyond reasonable
doubt and accused is entitled for benefit of doubt. [Para
26] [29-F-G; 30-A]
H
Balak Ram and Anr. v. State of UP. AIR 1974 SC 2165;
BRAHM SWAROOP & ANR. v. STATE OF U.P.
11
Allarakha KMansuri v. State of Gujarat (2002) 3 SCC 57;
A
Raghunath v. State ofHaryana (2003) 1 SCC 398; State of
UP. v. Ram Veer Singh and Ors.
AIR 2007 SC 3075; S.
Rama Krishna v. S. Rami Reddy (0) by his LRs. and Ors.
AIR 2008 SC 2066; Sambhaji Hindurao Deshmukh
and
Ors. v. State of Maharashtra (2008) 11 SCC 186; Arulvelu and
B
Anr. v. State (2009) 10 SCC 206; Perla Somasekhara Reddy
and Ors. v. State of A.P. (2009) 16 SCC 98; Ram Singh alias
Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445 -
relied on.
10.2 In exceptional cases where there are compelling
C
circumstances, and the judgment under appeal is found
to be perverse, the appellate court can interfere with the
order of acquittal. The appellate court should bear in mind
the presumption of innocence of the accused and further
that the trial court's acquittal bolsters the presumption of D
his· innocence. Interference with the decision of the trial
court in a routine manner, where the other view is
possible should be avoided, unless there are good
reasons for such interference. [Para 30] [32-D]
Sheo Swaroop and Ors. v. King Emperor AIR 1934 PC
227; Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC
415; Stateof Uttar Pradesh v. Banne @ Baijnath and Ors.
(2009) 4 sec 271, relied on.
E
11.1 The acquittal of Accused Nos. 5 and 6 by the trial
F
court cannot be held to be based on cogent reasons. The
High Court has rightly reversed their acquittals for
offences u/ss. 302/34 and 307/34 IPC, but has rightly
upheld their acquittal u/s. 25 of the Arms Act. [Para 37]
~6~
G
11.2 The fact that PW-1 failed to name the fathers of
the two accused persons namely A-5 and A-6, alone could
not discount their involvement in the crime. More so, it is
evident from the record that there was no suggestion to
H
12
SUPREME COURT REPORTS (201 OJ 15 (ADDL.) S.C.R.
A PW.1 that the names of the fathers of the two accused
persons were mentioned at the instance of some other
persons. He had not been asked as to how the name of
their father had been mentioned in the FIR. Such an
inference could not have been drawn by the trial court
B without giving an opportunity of explanation to PW.1.
[Paras 33) [34-A-B]
Sane Lal and Ors. v. State of UP. AIR 1978 SC 1142;
Rotash v. State of Rajasthan (2006) 12 SCC 64- relied on.
C
11.3 The inference of the trial court that the FSL
report did not corroborate the usage of the gun recovered
from AS, in the crime and was a major flaw in the
prosecution's case was rightly held by High Court as
perverse. The case of the prosecution had all along been
D that A-5 was armed with a DBBL gun (which is a different
type of gun from the recovered gun), and the said gun
was not mentioned either in the FIR or in the testimonies
of any of the prosecution witnesses. It was the statement
of A-5 that he had used the said gun in the crime. Further,
E this statement was inadmissible as A-5 had made the
statement to a police officer, while he was in custody.
[Para 34) [34-C-E]
11.4. So far as the question of the other gun, which
A-6 took from one 'G' from the complainant party and its
F recovery from A-5 is concerned, both the trial court and
the High Court disbelieved the recovery. However, the
High Court took the view that no benefit can be given to
the accused persons on the ground that the recovery of
the said gun was not worth to be believed. Even in the
G absence of the proper recovery of the said gun, there
was enough evidence to prove beyond reasonable doubt,
the guilt of the accused. The High Court took the view
that in the light of the fact that the eye-witness accounts
and the medical evidence were in harmony with each
H other and clearly established the guilt of A-5 and A-6, the
BRAHM SWAROOP & ANR. v. STATE OF U.P.
13
decision of the trial court to acquit them could not be in
A
consonance with the evidence available on record and
thus, perverse. [Para 35] [34-G-H; 35-A]
Case Law Reference:
AIR 1975 SC 1252
Relied on.
Para 7
B
AIR 1991 SC 1853
Relied on.
Para 7
(1998) 4 sec 605
Relied on.
Para 7
(1998) 9 sec 521
Relied on.
Para 7
c
(2000) 4 sec 84
Relied on.
Para 7
(2003) 2 sec 518
Relied on.
Para 7
(2006) 2 sec 450
Relied on.
Para 7
D
AIR 2009 SC 1271
Relied on.
Paras 7 and 15
(1996) 1 sec 194
Relied on.
Para 9
(2003) 12 sec 192
Referred to.
Para 11
(2003) 11 sec 286
Relied on.
Para 12
E
c2001) 3 sec 147
Relied on.
Para 13
(2001) 13 sec 501
Relied on.
Para 13
AIR 2008 SC 320
Relied on.
Para 14
F
AIR 2009 SC 1866
Relied on.
Para 16
AIR 1972 SC 2679
Relied on.
Para 16
AIR 1976 SC 2304
Relied on.
Para 16
G
(2009) 1 o sec 113
Relied on.
Para 16
(2009) 1 sec 415
Relied on.
Para 17
AIR 1953 SC 364
Relied on.
Para 21
H
14
SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
A
AIR 1965 SC 202
Relied .on.
Para 21
(2002) 3 sec 76
Relied on.
Para 21
(2003) 2 sec 661
Relied on.
Para 21
B
(2004) 1 sec 629
Relied on.
Para 22
(2006) 12 sec 459
Relied on.
Para 22
(2008) 8 sec 210
Relied on.
Para 22
c
(2009) 9 sec 119
Relied on.
Para 22
(2009) 10 sec 477
Relied on.
Para 22
AIR 2009 SC 2661
Relied on.
Para 22
(201 O) 6 sec 673
Relied on.
Para 22
D
AIR 1985 SC 48
Relied on.
Para 25
AIR 2007 SC 2257
Relied on.
Para 25
AIR 2009 SC 152
Relied on.
Para 25
E
(2009) 11 sec 588
Relied on.
Para 25
AIR 1974 SC 2165
Relied on.
Para 26
(2002) 3 sec 57
Relied on.
Para 26
F
(2003) 1 sec 398
Relied on.
Para 26
AIR 2007 SC 3075
Relied on.
Para 26
AIR 2008 SC 2066
Relied on.
Para 26
(2008) 11 sec 186
Relied on.
Para 26
G
(2009) 1 o sec 206
Relied on.
Para 26
(2009) 16 sec 98
Relied on.
Para 26
(2010) 2 sec 445
Relied on.
Para 26
H
BRAHM SWAROOP & ANR. v. STATE OF U.P.
15
AIR 1934 PC 227
(2007) 4 sec 415
(2009) 4 sec 211
AIR 1978 SC 1142
(2006) 12 sec 64
Relied on.
Relied on.
Relied on.
Relied on.
Relied on.
Para 27
Para 28
Para 29
Para 32
Para 33
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1235 of 2005.
A
B
From the Judgment & Order dated 4.5.2005 of the High
C
Court of Judicature at Allahabad in Govt. Appeal No. 6180 of
2003.
WITH
Crl.A.No. 1295-1296 of 2005.
KTS Tulsi, Ravinder Singh, Anurag Dubey, D.P. Pande,
S.R. Setia for the Appellants.
D
Shail Kr. Dwivedi, AAG, Ashutosh Kumar Sharma, Anuvrat
E
Sharma, Raj Singh Rana for the Respondent.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. These appeals have been
preferred against the judgment and order dated 4th May, 2005,
F
of the High Court of Judicature at Allahabad, passed in
Criminal Appeal No. 6180 of 2003, along with Criminal Appeal
Nos.3749 of 2003 and 4648 of 2004, against the judgment and
order of the Sessions court, Bareilly dated 5th August, 2003,
in Sessions Trial No. 855 of 2001 in Crime No. 384/2000.
G
2. Fact and circumstances giving rise to these appeals
are as under:
(A) First Information Report No.239/2000 was lodged on
H
A
B
c
D
E
F
G
H
16
SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
31st May, 2000 at 3.20 P.M. by Atar Singh (PW.1) at
Police Station Bahedi, Distt. Bareilly. It stated that his
grand father Natthu Singh @ Raghunath Singh had an
enmity with the family of one Nern Chand Gangwar and on
that date he along with Natthu Singh @ Raghunath Singh,
Rajendra Singh @ Gali, Virendra Singh, Dharam Pal
Singh, Rajendra Singh and Satyapal Singh had come to
Bahedi to get the Dynamo of their Jeep No. ODA 6162
repaired. Natthu Singh @ Raghunath Singh was sitting at
the counter of the repairing shop, while Dharam Pal Singh
and Rajendra Singh were sitting in the Jeep. Virendra
Singh was standing in front of the Jeep. Gyanendra Singh
kept his gun in the Jeep near Dharam Pal Singh and went
towards the grove to urinate. At about 3.00 P.M., Nern
Chand Gangwar (A.1) and his sons Balwant (A.2) and
Chandra Pal (A.3), Jogendra (A.4), Brahm Swaroop (A.5)
and Jagdish Baggar (A.6) armed with deadly weapons
came there and started firing, after surrounding these
persons with their respective weapons. Nern Chand
Gangwar (A.1) assaulted Natthu Singh (D.1) with his
Kanta. He died on the spot. Rajendra Singh (D.2) and
Dharampal Singh (D.4) received serious injuries by fire
arm and became unconscious. Virendra Singh (D.3) fell
near the Jeep after receiving fire arm injuries. The
informant, Atar Singh (PW.1) also received injuries in the
incident. Brahm Swaroop (A.5) took away the rifle of
Rajendra Singh (D.2) and Jagdish Baggar (A.6) took away
the licensed gun of Gyanendra. It was also alleged that the
chap Serial No. 5809 of the gun of the accused had fallen
on the spot. All the three injured persons were taken to the
hospital at Bahedi. Rajendra Singh (PW.2) and Satyapal
Singh also witnessed the incident.
(B) After investigation of the case, the prosecution
submitted the chargesheet under Sections 396, 148, 302
read with 149, 307/149 of the Indian Penal Code, 1860
(hereinafter called the IPC). Brahm Swaroop (A.5) and
BRAHM SWAROOP & ANR. v. STATE OF U.P.
17
[DR. B.S. CHAUHAN, J.]
Balwant (A.2) were further charged under Section 25 of the
A
Arms Act (hereinafter referred to as 'Arms Act'). During
the trial, the prosecution examined 12 witnesses to prove
its case. After considering the whole case and
appreciating the evidence, on the conclusion of the trial,
the Sessions court vide judgment and order dated 5th
B
August, 2003, in Sessions Trial No. 855 of 2001 acquitted
Brahm Swaroop (A.5) and Jagdish Baggar (A.6) of all the
charges under Sections 148, 302, 149, 307, 396, 424
l.P.C. and Section 25 of the Arms Act. Chandra Pal (A.3)
and Balwant (A.2) were convicted under Section 302 read c
with 34 l.P.C. and were awarded death sentence and a
fine of Rs.5,000/- and, in case of failure to deposit the fine,
six months imprisonment in addition. Nern Chand Gangwar
(A.1) and Jogendra (A.4) were convicted under Sections
302/34 l.P.C. and awarded imprisonment for life with fine
D
of Rs. 10,000/- each, and in case of failure to deposit the
fine, one year further imprisonment. Nern Chand Gangwar
(A.1) and Jogendra (A.4) were further convicted under
Sections 307/34 l.P.C. and awarded 10 years rigorous
imprisonment and fine of Rs.5000/- each and in case of
E
failure to deposit the fine, they would undergo 6 months
imprisonment in addition.
(C) Being aggrieved by the aforesaid judgment and order
of the Sessions Court, three appeals bearing Criminal
Appeal No. 4648 of 2004, Criminal Appeal No. 3749 of
F
2003 and Government Appeal No. 6180 of 2003 were filed
before the High Court of Judicature at Allahabad. The High
Court vide its judgment and order dated 4th May, 2005,
disposed of the aforesaid three appeals by the impugned
common judgment and order dismissing the appeals filed
G
by the convicts, however, with the modification that the
sentence of death imposed by the trial court on Chandra
Pal (A.3) and Balwant (A.2) was altered to life
imprisonment. The Government appeal against acquittal
of Braham Swaroop (A.5) and Jagdish Baggar (A.6) stood
H
A
B
c
18
SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
allowed, and they were convicted under Section 302 read
with 34 l.P.C. and sentenced to undergo imprisonment for
life with a fine of Rs.10,000/- and, in default of payment of
fine, rigorous imprisonment for a further period of one year.
Both the said accused were further convicted under
Sections 307/34 l.P.C. and sentenced to undergo 10 years
rigorous imprisonment with a fine of Rs.5,000/- each and,
in default of payment of fine, for a further period of six
months R.I. The High Court directed that all the
punishments would run concurrently. However, their
acquittal for the offences under Section 25 of the Arms Act,
was upheld.
3. Shri K.T.S. Tulsi, learned senior counsel appearing for
the appellants in all three appeals, has submitted that the place
0 of occurrence is not free from doubt for the reason that no blood
stained earth had been lifted from the place near the Jeep and
no blood stains were found in the Jeep. The incident had
occurred at the residence of Natthu Singh @ Raghunath Singh
(D.1) as an entry has been made in this regard in the General
E Diary at about 11.00 A.M. and the investigating officer Raj Guru,
Inspector, P.S. Bahedi (PW.10) had gone to that place. The
prosecution did not disclose the genesis of the case correctly.
Natthu Singh @ Raghunath Singh (D.1) was a history-sheeter
and a large number of criminal cases were pending against
him. Virendra Singh (D.3) and Dharampal Singh (D.4) were
F involved in criminal cases and facing trial in the said cases.
Therefore, they have large number of enemies and the whole
case of the prosecution becomes totally improbable. Had the
incident occurred as alleged by the prosecution, the Jeep
should have got some bullet marks as Rajendra Singh (D.2)
G and Virendra Singh (D.3) were sitting in the Jeep. Neither were
any bullet marks on the Jeep nor had any pellets been recovered
from the Jeep or the nearby area. An FIR had initially been
registered under Section 396 l.P.C. and, in view of the fact, that
one of the victims died on the spot and another died enroute
H to the hospital, had the prosecution given the correct version
BRAHM SWAROOP & ANR. v. STATE OF U.P.
19
[DR. B.S. CHAUHAN, J.]
of events, the FIR ought to have been registered under Sections
A
302 and 307 l.P.C. along with other Sections. The inquest has
been manipulated and there are five blanks therein which make
the whole prosecution case doubtful. The use of weapons was
not established. The Magistrate received the Special Report
after five days. Atar Singh (PW.1) could not tell names of the
B
father of Brahm Swaroop (A.5) as well as of Jagdish Baggar
(A.6) though the same had been mentioned in the FIR lodged
by him. The prosecution did not examine any independent
witness. The reversal of the acquittal of Brahm Swaroop (A.5)
and Jagdish Baggar (A.6) by the High Court is totally c
unwarranted and unjustified. Thus, the appeals deserve to be
allowed.
4. On the contrary, Shri Shail Kumar Dwivedi, learned
Additional Advocate General for the State of U.P., has
vehemently opposed the appeals, contending that the FIR had
D
been lodged promptly; without any loss of time. The incident
occurred at 3.00 P.M. and the FIR had been lodged at 3.20
P.M. on the same day giving the names of all the accused; the
soil containing blood was mentioned in General Diary. The
omission of the names of fathers of Brahm Swaroop (A.5) and
E
Jagdish Baggar (A.6) cannot be fatal to the prosecution case
and it is not necessary that the informant must be aware of all
the contents of the FIR itself. The prosecution examined the
injured witness, who would not spare the real culprits and
involve someone falsely. The deposition of the injured witness
F
has to be given due weightage. The manner in which the inquest
report is made, has to be ignored as law does not require to it
to furnish all the information and it is not necessary to fill up the
names of all the accused. Even if the Special Report reached
the Judicial Magistrate at a belated stage, it would not be fatal
G
to the prosecution case. The prosecution case is duly supported
by the medical evidence and though the eye witnesses were
closely related to the deceased persons, their depositions are
required to be examined with care and caution, but cannot be
ignored. Minor discrepancies in the evidence, cannot adversely
H
20
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A affect the prosecution case. Thus, the appeals are liable to be
dismissed.
5. We have considered the rival contentions of the parties
and perused the evidence on record.
8 Legal Issue
Inquest : Section 174 Cr.P.C.
6. Undoubtedly, there are five blanks in the inquest report.
C The crime number and names of the accused have not been
filled up. The column for filling up the penal provisions under
which offences have been committed is blank. The time of
incident and time of dispatch of the special re.port have not
been mentioned. Therefore, Shri Tulsi has submitted that the
D FIR is ante-timed and there is manipulation in the case of the
prosecution.
7. The whole purpose of preparing an inquest report under
Section 174 of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'Cr.P.C') is to investigate into and
E draw up a report of the apparent cause of death, describing
such wounds as may be found on the body of the deceased
and stating as in what manner, or by what weapon or instrument
such wounds appear to have been inflicted. For the purpose
of holding the inquest it is neither necessary nor obligatory on
F the part of the Investigating Officer to investigate into or
ascertain who were the persons responsible for the death. The
object of the proceedings under Section 174 Cr.PC is merely
to ascertain whether a person died under suspicious
circumstances or met with an unnatural death and, if so, what
G was its apparent cause. The question regarding the details of
how the deceased was assaulted or who assaulted him or
under what circumstances he was assaulted is foreign to the
ambit and scope of such proceedings i.e. the inquest report is
not the statement of any person wherein all the names of the
H persons accused must be mentioned. Omissions in the
BRAHM SWAROOP & ANR. v. STATE OF U.P.
21
[DR. B.S. CHAUHAN, J.]
inquest report are not sufficient to put the prosecution out of A
court. The basic purpose of holding an inquest is to report
regarding the apparent cause of death, namely, whether it is
suicidal, homicidal, accidental or by some machinery etc. It is,
therefore, not necessary to enter all the details of the overt acts
in the inquest report. Evidence of eyewitnesses can not be
B
discarded if their names do not figure in the inquest report
prepared at the earliest point of time. The inquest report cannot
be treated as substantive evidence but may be utilised for
contradicting the witnesses of inquest. (See Podda Narayana
& Ors. v. State of Andhra Pradesh, AIR 1975 SC 1252; Khujji
C
v. State of Madhya Pradesh, AIR 1991 SC 1853; George &
Ors. v. State of Kera/a & Anr., (1998) 4 SCC 605; Shaikh Ayub
v. State of Maharashtra, (1998) 9 SCC 521; Suresh Rai v.
State of Bihar, (2000) 4 SCC 84; Amar Singh v. Ba/winder
Singh & Ors., (2003) 2 SCC 518; Radha Mohan Singh alias
Lal Sahab & Ors. v. State of Uttar Pradesh, (2006) 2 SCC 450;
D
and Aqeel Ahmad v. State of Uttar Pradesh, AIR 2009 SC
1271 ).
8. In Radha Mohan Singh (supra), a three judge bench of
this Court held:
"No argument on the basis of an alleged discrepancy,
overwriting, omission or contradiction in the inquest report
can be entertained unless the attention of the author
thereof is drawn to the said fact and he is given an
opportunity to explain when he is examined as a witness
in court."
(Emphasis added)
E
F
9. Even where, the attention of the author of the inquest is
G
drawn to the alleged discrepancy, overwriting, omission or
contradiction in the inquest report and the author in his
deposition has also admitted that through a mistake he omitted
to mention the crime number in the inquest report, this Court
has held that just because the author of the report had not been
H
22
SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A diligent did not mean that reliable and clinching evidence
adduced by the eyewitnesses should be discarded by the
Court. (Vide: Dr. Krishna Pal & Anr. v. State of Uttar Pradesh,
(1996) 1 sec 194).
8
10. In view of the law referred to hereinabove it cannot be
held that any omission or discrepancy in the inquest is fatal to
the prosecution's case and such omissions would necessarily
lead to the inference that FIR is ante-timed. Shri N.K. Sharma
Sub Inspector (PW.7) had denied the suggestion made by
C defence that till the time of preparing the report the names of
the accused persons were not available. He further stated that
the column for filling up the nature of weapons used in the crime
was left open as it could be ascertained only by the Doctor what
weapons had been used in the crime. Thus, the submissions
made in this regard are preposterous.
D
Delay in sending report to the Magistrate :
11. Undoubtedly, there is delay of 5 days in sending the
Special Report. This Court in Badam Singh v. State of M.P.,
E (2003) 12 SCC 792, while considering this issue held that
where the investigating officer categorically stated that he was
not in a position to give any explanation for the delay in sending
the Special Report, it may be fatal to the prosecution's case.
12. However, a larger Bench of three Judges in Bairam
F Singh & Anr. v. State of Punjab, (2003) 11 SCC 286, held as
under:
G
H
"10 ..... we notice that in reality there is no delay in preparing
the FIR but there was some delay in transmitting the said
information to the Jurisdictional Magistrate. Having been
satisfied with the fact that the FIR in question was
registered in the morning of 6-5-1990, we do not think that
the delay thereafter in communicating it to the Jurisdictional
Magistrate on the facts of this case, has really given any
room to doubt that the said document (FIR) was created
BRAHM SWAROOP & ANR. v. STATE OF U.P.
23
[DR. B.S. CHAUHAN, J.]
after much deliberations. At any rate, while considering the
A
complaint of the appellants in regard to the delay in the FIR
reaching the Jurisdictional Magistrate, we will have to also
bear in mind the creditworthiness of the ocular evidence
adduced by the prosecution and if we find that such ocular
tevidence is worthy of acceptance, the element of delay in
B
registering a complaint or sending the same to the
Jurisdictional Magistrate by itself would not in any manner
weaken the prosecution case."
13. In State of Rajasthan v.