BHAGALOO LODH AND ANR.versusSTATE OF U.P.

                     [2011] 6 S.C.R. 1037


                BHAGALOO LODH AND ANR.                            A
                               v.
                         STATE OF U.P.
               (Criminal Appeal No. 207 of 2007)

                         JUNE 14, 2011
                                                                  B
                     •
 [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]

     Penal Code, 1860 - s. 302 rlw s. 34 - Homicidal death due
to sharp edged weapon - Conviction under s.302 r/w s.34 -
Challenge to - Held: Prosecution furnished satisfactory           C
explanation for delay of 9 hours in lodging the FIR - PW1
explained that the incident occurred at night and he could not
go to the police station, which was at a distance of 18 Kms,
out of fear - Both eye-witnesses were closely related to the
deceased but their testimonies had been found trustworthy by      D
both the courts below, and thus cannot be discarded -
Conviction accordingly upheld.

     FIR - Delay in filing of FIR - Effect of - Held: Prompt
and early reporting of the occurrence by the informant with all   E
its vivid details gives an assurance regarding truth of its
version - In  case there is some delay in filing the FIR, the
complainant must give explanation for the same - In absence
of such an explanation, the delay may give presumption that
allegations/accusations were false - Delay in lodging the FIR     F
does ~...make the complainant's case improbable when such
delay -is properly explained.

     Evidence - Evidence of a close relative - Held: Can be
relied upon provided it is trustworthy - Such evidence cannot
be disbelieved merely on the ground that the witnesses are        G
inter"related to each other or to the deceased.

     According to the prosecution, pursuant to a quarrel,
the two accused-appellants alongwith a co-accused-'RL'
                             1037                                 H
    1038    SUPREME COURT REPORTS              [2011] 6 S.C.R.

A caught hold of PW1 's brother while another co-accused-
  'BS' gave him several blows by a sharp edged weapon
  "Karauli" due to which PW1 's brother died on the spot
  'RL' died during the course of trial. The Sessions Court
  convicted the appellants and accused-'BS' under
B Sections 302/34 IPC and sentenced them to life
  imprisonment. High Court upheld the conviction of the
  appellants and co-accused 'BS'.

       Before this Court, the appellants challenged their
C conviction inter alia stating that the FIR was lodged after
  a delay of 9 hours and the prosecution failed to furnish
  any plausible explanation for the same; and that PW1 and
  PW2, the alleged eye-witnesses, were very close relatives
  of the deceased, and thus, their testimonies cannot be
  relied upon safely.
D
       Dismissing the appeal, the Court

       HELD:1. The autopsy on the body of the deceased
  was conducted by PW.4 and he found 12 ante-mortem
E incised wound injuries. The cause of death spelt out in
  the post-mortem report was shock and haemorrhage as
  a result of ante-mortem injuries. In his deposition in the
  Trial Court, PW 4 reiterated the said cause of death and
  also stated therein that the ante-mortem injuries suffered
  by the deceased were attributable to a sharp edged
F weapon, like karauli and were sufficient in the ordinary
  course of nature to cause death. [Para 5] [1045-B-C; 1046-
  E-F]
         2. Prompt and early reporting of the occurrence by
G the informant with all its vivid details gives an assurance
   regarding truth of its version. In case there is some delay
   in filing the FIR, the complainant must give explanation
  ·for the same. In absence of such an explanation, the
   delay may give presumption that allegations/accusations
H were false and had been given after thought or a coloured
   BHAGALOO LODH AND ANR. v. STATE OF U.P.            1039

  version of events. Undoubtedly, delay in lodging the FIR A
  does not make the complainant's case improbable when
  such delay is properly explained. However, deliberate
  delay in lodging the complaint is always fatal. In the
  instant case, so far as the delay in lodging the FIR is
· concerned, it has been explained by PW.1. The incident B
  occurred at 9.00 P.M. on 25.10.1999 and the FIR was
  lodged on 26.10.1999 at 6.10 A.M. at the police station at
  a distance of 18 K.M. from the place of incident. PW.1
  mentioned that on account of fear of the· accused
  persons, he could not go to the police station to lodge c
  the FIR at night. This explanation has been found by both
  the courts below to be perfectly convincing, and after
  considering all the facts and circumstances of the case,
  the courts below had drawn an inference that the
  explanation furnished was quite satisfactory. There is no
                                                             0
  cogent reason to take a view contrary to the view taken
  by the courts below. [Para 7, 9) [1046-G-H; 1047-A-B-D-
  F]
      Sahib Singh v. State of Haryana, AIR 1997 SC 3247;
 Gorige Pentaiah Pentaiah v. State of A.P. & Ors., (2008) 12   E
 SCC 531; Kishan Singh (dead) thr. Lrs. v. Gurpa/ Singh &
 Ors., AIR 2010 SC 3624) - relied on.
     3~ 1. So far as the issue of accepting the evidence of
 closely related witnesses is concerned, both the courts
 below had placed a very heavy reliance on the                 F
 depositions of PW.1 and PW.2, inspite of the fact that
 PW.1 was the brother of the deceased and PW2 was
 closely related to PW.1. The daughter of PW.1 got married
 with the nephew (sister's son) of PW.2. Both of them had
 supported the prosecution case. Both of them have been        G
 extensively cross-examined by the defence, but nothing
 could be extracted therefrom which could impair their
 credibility. The courts below found that evidence of both
 the eye-witnesses inspired confidence and was worth
 acceptance as both of them had given full version of the      H
    1040   SUPREME COURT REPORTS              [2011] 6 S.C.R.

A incident. More so, both the courts below held that the
  witnesses had no reason to falsely implicate the
  appellants and the co-accused and spare the real
  assailants. [Para 10] [1047-F-H; 1048-A-B]
       3.2. Evidence of a close relation can be relied upon
8 provided it is trustworthy. Such evidence is required to
  be carefully scrutinised and appreciated before resting of
  conclusion to convict the accused in a given case. But
  where the Sessions Court properly appreciated evidence
  and meticulously analysed the same and the High Court
C re-appreciated the said evidence properly to reach the
  same conclusion, it is difficult for the superior court to
  take a view contrary to the same, unless there are
  reasons to disbelieve such witnesses. Thus, the
  evidence cannot be disbelieved merely on the ground
D that the witnesses are inter-related to each other or to the
  deceased. In view thereof, no fault can be found with the
  evidence recorded by the courts below accepting while
  the evidence of closely related witnesses. [Para 14] [1049-
  B-F]
E      M.C. Ali & Anr. v. State of Kera/a, AIR 2010 SC 1639;
  Myladimmal Surendran & Ors. v. State of Kera/a, AIR 2010
  SC 3281; Shyam v. State of Madhya Pradesh, (2009) 16
  SCC 531; Prithi v. State of Haryana, (2010) 8 SCC 536;
  Surendra Pal & Ors. v. State of U.P. & Anr., (2010) 9 SCC
F 399 and Himanshu@ Chintu v. State (NCT of Delhi), (2011)
  2 sec 36 - relied on.
      4. The incident had occurred outside the village and
  not inside the village. Therefore, it is likely that some
G other persons might have come there after the accused
  had run away from the place of occurrence. PW.1 had
  deposed that a resident of a far away village, who got
  married in the same village was also with him. However,
  no question had been put to PW.5, (1.0.) by the defence
H as to why the said person had not been examined. [Para
  12)
  BHAGALOO LODH AND ANR. v. STATE OF U.P.             1041


     5.1. The accused examined defence witnesses, DW.1 · A
and DW.2, to prove alibi that the appellants could not be
present on the place of occurrence as they had been in
their agricultural field. So far as the evidence of DW.1 is
concerned, he has deposed that the appellants had been
working in their paddy field at the time of occurrence of B
the crime. However, the courts below did not believe his
statement for the reason that the witness had never got
his statement recorded by the Investigating Officer, nor
did he disclose such fact to any other person. He was
examined first time in the court. Similarly, statement of      c
DW.2 was not found worth acceptance. The said witness
was pres~nt in the morning at the place of occurrence
when the Investigating Officer reached there. The
appellants had been named in the FIR. DW.2 also
admitted that he knew that a murder case had been 0
registered against the appellants, but he did not disclose
to the Investigating Officer or to any other person that the
appellants could not be the assailants. DW.2 also
 admitted that his father was the Pradhan and he had
 defeated a very close relative of the deceased. [Paras 2, E
 13] (1042-A-B; 1048-F-H; 1049-A-B]

     5.2. In the statement under Section 313 of CrPC, the
appellants had not taken the defence that they could not
be present at the place of occurrence as at the time of
occurrence they were working in their paddy (agricultural)     F
field. Thus, in view of the above, the deposition of the two
witnesses examined in their defence becomes
meaningless. [Para 11] (1048-C-D]
     6. The facts and circumstances of the present case        G
do not warrant any review of the judgments and orders
of the courts below. [Para 15] [1049-G]
                    Case Law Reference:
    AIR 1997 SC 3247           relied on           Para 7      H
    1042    SUPREME COURT REPORTS                [2011] 6 S.C.R.


A        (2008) 12 sec 531          relied on              Para 7
        AIR 2010 SC 3624)           relied on              Para 7

        AIR 2010 SC 1639            relied on              Para 14

        AIR 2010 SC 3281            relied on              Para 14
B
        (2009) 16 sec 531           relied on           Para 14

        (201 O) 8 sec 536           relied on           Para 14

        (201 o) 9 sec 399           relied on           Para 14
c
        (2011) 2 sec 36             relied on           Para 14

        CRIMINAL APPELALTE JURISDICTION : Criminal Appeal
    No. 207 of 2007.

D       From the Judgment & Order dated 28.4.2004 of the High
    Court of Judicature at Allahabad, Lucknow Bench in Criminal
    Appeal No. 956 of 2002.

        J.P. Dhanda, Atishi Dipankar for the Appellants.

E       T.N. Singh, Manoj Kumar Dwivedi, R.K. Gupta, S.K.
    Dwivedi, Aviral Shukla, Abhinav Shrivastava, G.V. Rao for the
    Respondent.

        The Judgment of the Court was delivered by
F
       DR. B.S. CHAUHAN, J. 1. This criminal appeal has been
  preferred against the judgment and order dated 28.4.2004
  passed by the High Court of Judicature at Allahabad (Lucknow
  Bench) in Criminal Appeal No. 956 of 2002 dismissing the
  appeal against the judgment and order dated 12. 7.2002
G passed by the Sessions Court, Hardoi, in Sessions Trial No.
  108 of 2000 convicting the appellants and co-accused
  Bhagaloo Singh, under Sections 302/34 of Indian Penal Code,
  1860 (hereinafter called as 'IPC') and sentencing them to
  undergo rigorous imprisonment for life.
H
   BHAGALOO LODH AND ANR. v. STATE OF U.P.                  1043
           [DR. B.S .. CHAUHAN, J.]

        2. Facts and circumstances giving rise to this case are      A
that:

      (A) An FIR dated 26.10.1999 was lodged by Rajesh Singh
(PW .1) in Police Station-Tandiyanwan, Fatehpur District,
Hardoi, against the appellants and two other co-accused Ram
                                                                     8
Lakhan and Bhagaloo Singh that the said four accused had
killed Vinod Kumar on 25.10.1999 at 9.00 P.M. Vinod Kumar,
aged 22 years was friend of Raj Kumar, the son of Ram
Lakhan, accused, and thus had visiting terms with the family.
One day, when he went to the house of Ram Lakhan, accused,
he saw Bhagaloo Singh, accused in compromising position              C
with the daughter of Ram Lakhan, accused and reprimanded
him. Bhagaloo Singh was living with Ram Lakhan, accused and
helping him in his agricultural work. Bhagaloo Singh had told
Vinod Kumar not to disclose the factum of his intimacy with the
daughter of Ram Lakhan to anyone. Thus, a quarrel took place         D
between the two and Bhagaloo Singh, accused threatened
Vinod Kumar to face the dire consequences. It is in that
consequence that the two appellants, al6ngwith Ram Lakhan
caught hold of Vinod Kumar (deceased) and Bhagaloo Singh
gave several blows by a sharp edged weapon "Karauli". Vinod          E
Kumar died immediately on the spot after having 12 injuries.
There had been enmity in these groups of parties and there had
been criminal cases between them.

     (8) On the basis of the said FIR, Case Crime No.155/1999        F
was registered under Sections 302/34 IPC and investigation
ensued. The dead body of Vinod Kumar was recovered and
sent for post mortem examination. Buddhi Narain Lal (PW.5),
Investigating Officer completed the investigation and submitted
chargesheet under Sections 302/34 IPC. All the four accused          G
pleaded not guilty and claimed trial. Thus, they were put to trial
under Sections 302/34 IPC in Sessions Trial No. 108/2000.

     (C) The prosecution in order to prove its case examined
five witnesses, namely, Rajesh Singh (PW.1), Devi Gulam
Singh (PW.2) as eye-witnesses, Dr. R.K. Porwal (PW.4),               H
     1044    SUPREME COURT REPORTS                  [2011] 6 S.C.R.


 A Constable Shailendra Singh (PW.3), and Buddhi Narain Lal,
   1.0. (PW.5). The accused also examined Jag Dev (DW.1) and
   Salim (DW.2) to prove alibi that the appellants could not be
   present on the place of occurrence as they had been in their
   agricultural field.
 B
          After conclusion of the trial, the Sessions Court convicted
     and sentenced the appellants along with Bhagaloo Singh under
     Sections 302/34 IPC and sentenced them to undergo rigorous
     imprisonment for life vide judgment and order dated 12.7.2002.

c        It may be pertinent to mention here that accused, Ram
     Lakhan had died during the course of trial.

        (D) Being aggrieved, the appellants and co-accused
   Bhagaloo Singh preferred Criminal Appeal No. 956 of 2002
 0 before the Allahabad High Court (Lucknow Bench) which has
   been dismissed vide impugned judgment and order dated
   28.4.2004. Hence, the appellants filed this appeal.

         3. Shri J.P. Dhanda, learned cour.sel appearing for the
    appellants, has submitted that the appellants had falsely been
  E implicated in the case due to enmity as there had earlier been
    criminal cases between the parties. The FIR was lodged with
    a delay of 9 hours and the prosecution failed to furnish any
•   plausible explanation for the same. Rajesh Singh (PW.1) and
    Devi Gulam Singh (PW.2), the alleged eye-witnesses, were very
  F close relatives of the deceased, and thus, their testimonies
    cannot be relied upon safely. Prosecution failed to examine any
    independent witness. Thus, the appeal deserves to be allowed.
        4. On the contrary, Shri T.N. Singh, learned counsel
  appearing for the State has opposed the appeal contending
G that the prosecution furnished satisfactory explanation of delay
  of 9 hours in lodging the FIR, as nobody could go to the police
  station at a distance of 18 Kms. out of fear. Both the eye-
  witnesses were closely related to the deceased but their
  testimonies had been found trustworthy by both the courts
H
   BHAGALOO LODH AND ANR. v. STATE OF U.P.                     1045
           [DR. B.S. CHAUHAN, J.]

below, and thus cannot be discarded. More so, the law does              A
not prohibit to rely upon the evidence of the closely related
witnesses of the deceased or victim if it is found to be reliable.
In view of the above, appeal lacks merit and is liable to be
dismissed.
                                                                        B
    5. The autopsy on the body of the deceased Vinod Kumar
was conducted Dr. R.K. Porwal (PW.4) on 26.10.1999 and he
found the following ante-mortem injuries:
      (i)     Incised wound size 1 cm x 0.5 x muscle deep
              present on left temporal region, 1.5 cm lateral to left   c
              eyeball.
      (ii)    Incised wound size 16 cm x 5 cm x bone deep
              present in front of the neck, 2 cm above the
              xiphisenuim the trachea is clean cut, margins of the
              wounds are clean cut.                                     D

      (iii)   Incised wounds size 2 cm x 1 cm x chest cavity
              deep present on left side of the chest at the level
              of nipple at 9 O' clock position. Wound is 6 cm
              medial to nipple underlying heart is clean cut.           E
      (iv)    Incised wound size 2.5 cm x 1 cm x muscle deep
              present on right side of chest at 4 O'clock position
              from right nipple. It is 6 cm away from right nipple.
      (v)     Incised wound size 2 cm x 0.7 cm x chest cavity           F
              deep (lower chest) present on right side of chest,
              7 cm away from right nipple at 4 O' clock position
              underlying lower is lacerated.
      (vi)    Incised wound size 6 cm x 1 cm x chest cavity deep.
              Present on right side of chest left O'clock position,     G
              9 cm away from nipple margins of the wounds are
              clean out.
      (vii)   Incised wound size 6 cm x 2.5 cm x chest cavity
              deep on left side of chest 1.5 cm left to midline.        H
     1046          SUPREME COURT REPORTS                 [2011] 6 S.C.R.

A           (viii) Incised wound size 1.5 cm x 1 cm x muscle deep
                   present on left side of chest 4 cm lateral to midline
                   at the level of xiphislesinim.
            (ix)    Incised wound size 5 cm x 2.5 cm x abdominal
                    cavity deep present on left side of upper abdomen
B
                    1 cm lateral to medline at the level of T8 spine
                    intestine is coming out of the wound.
          (x)       Incised wound 1 cm x 0.5 cm x muscle deep
                    present side of back at the level of T9 spine 8 cm
c                   lateral to midline.
          (xi)      Incised wound size 1.5 cm x 0.5 cm x muscle deep
                    present on right side of back at left the level of T12
                    spine 6 cm lateral to medline.

D         (xii) Incised wound size 1 cm x 0.5 x muscle deep
                present on left side of back at the level of T10 spine
                7 cm lateral to midline.
       The cause of death spelt out in the post-mortem report was
  shock and hemorrhage as a result of ante-mortem injuries. It
E is pertinent to mention that in his deposition in the Trial Court,
  Dr. Porwal reiterated the said cause of death and also stated
  therein that the ante-mortem injuries suffered by the deceased
  were attributable to a sharp edged weapon, like karauli and
  were sufficient in the ordinary course of nature to cause death.
F
         6. The fact of homicidal death of Vinod Kumar, the place
    of occurrence and time of his death are not in dispute. Shri
    Dhanda has raised very limited issues referred to hereinabove
    and the case is restricted only to those issues.
G       7. Prompt and early reporting of the occurrence by the
  informant with all its vivid details gives an assurance regarding
  truth of its version. In case there is some delay in filing the FIR,
  the complainant must give explanation for the same. In absence
  of such an explanation, the delay may give presumption that
H allegations/accusations were false and had been given after
  BHAGALOO LODH AND ANR. v. STATE OF U.P.                  1047
          [DR. B.S. CHAUHAN, J.]

thought or had given a coloured version of events. Undoubtedly,     A
delay in lodging the FIR does not make the complainant's case
improbable when such delay is properly explained. However,
deliberate delay in lodging the complaint is always fatal. (Vide:
Sahib Singh v. State of Haryana, AIR 1997 SC 3247; Gorige
Pentaiah Pentaiah v. State of A.P. & Ors., (2008) 12 SCC            B
531; and Kishan Singh (dead) thr. Lrs. v. Gurpal Singh & Ors.,
AIR 2010 SC 3624).

    8. So far as the delay in lodging the FIR is concerned, it
has been explained by Rajesh Singh (PW.1) as under:
                                                                    c
     "I had not gone to lodge report in Police Station
     Tandiyanwan due to fear. We looked the corpse at night. I
     and Hanif went to Tandiyanwan Police Station by
     motorcycle in next morning".

     9. The incident occurred at 9.00 P.M. on 25.10.1999 and D
the FIR was lodged on 26.10.1999 at 6.10 A.M. at the police
station at a distance of 18 K. M. from the place of incident. ·
RajeshSingh (PW.1) has mentioned that on account of fear of
the accused persons, he could not go to the police station to
lodge the FIR at night. This explanation has been found by both E
the courts below to be perfectly convincing, and after
considering all the facts and circumstances of the case, the
courts below drawn an inference that the explanation furnished
was quite satisfactory. We do not see any cogent reason to take
a view contrary to the view taken by the courts below.          F.
     10. So far as the issue of accepting the evidence of closely
related witnesses is concerned, both the courts below had
placed a very heavy reliance on the depositions of Rajesh Singh
(PW.1) and Devi Gulam Singh (PW.2), in spite of the fact that       G
Rajesh Singh (PW.1) was the brother of the deceased Vinod
Kumar and Devi Gulam Singh was also closely related to
Rajesh Singh (PW.1 ). The daughter of Rajesh Singh (PW.1) got
married with Sarvesh, the nephew (sister's son) of Devi Gulam
Singh (PW.2). Both of them had supported the prosecution
case. Both of them have been extensively cross-examined by          H
      1048     SUPREME COURT REPORTS                  [2011) 6 S.C.R.


 A the defence, but nothing could be extracted therefrom which
   could impair their credibility. The courts below found that
   evidence of both the eye-witnesses inspired confidence and
   was worth acceptance as both of them had given full version
   of the incident.
 B      More so, both the courts below have held that the
     witnesses had no reason to falsely implicate the appellants and
     the co-accused and spare the real assailants.
          11. In the statement under Section 313 of Code of Criminal
 c   Procedure, 1973, the appellants had not taken the defence that
     they could not be present at the place of occurrence as at the
     time of occurrence they were working in their paddy field. Thus,
     in view of the above, the deposition of the two witnesses
     examined in their defence becomes meaningless.
 D       12. The incident had occurred outside the village and not
    inside the village. Therefore, it is likely that some other persons
    might have come there after the accused had run away from
    the place of occurrence. Rajesh Singh (PW.1) had deposed
    that one Sushil Kumar, a resident of far away village of district
· E Hardoi, who got married in the same village was also with him.
    However, no question had been put to Buddhi Narain Lal
    (PW.5), 1.0. by the defence as to why Sushil Kumar had not
    been examined.
 F        13. So far as the evidence of defence witness, namely Jag
   Dev (OW. 1) is concerned, he has deposed that the present
   appellants had been working in their paddy field at the time of
   occurrence of the crime. However, the court below did not
   believe his statement for the reason that the witness had never
   got his statement recorded by the Investigating Officer, nor did
 G he disclose such fact to any other person. He was examined
   first time in the court. Similarly, statement of Salim (DW.2) has
   been found not worth acceptance. The said witness was
   present in the morning at the place of occurrence when the
   Investigating Officer reached there. The appellants had been
 H named in the FIR. Salim (DW.2) also admitted that he knew
   BHAGALOO LODH AND ANR. v. STATE OF U.P.                    1049
           [DR. B.S. CHAUHAN, J.]

that a murder case had been registered against the appellants,         A
but he did not disclose to the Investigating Officer or to any other
person that the appellants could not be the assailants. Salim
(OW.2) has also admitted that his father was the Pradhan and
he had defeated Saroj Singh, a very close relative of Vined
Kumar, deceased.                                                       BI
     14. Evidence of a close relation can be relied upon
provided it is trustworthy. Such evidence is required to be
carefully scrutinised and appreciated before resting of
conclusion to convict the accused in a given case. But where
the Sessions Court properly appreciated evidence and C
meticulously analysed the same and the High Court re-
appreciated the said evidence properly to reach the same
conclusion, it is difficult for the superior court to take a view
contrary to the same, unless there are reasons to disbelieve
such witnesses. Thus, the evidence cannot be disbelieved D
merely on the ground that the witnesses are inter-related to each
other or to the deceased. (Vide: M.C. Ali & Anr. v. State of
Kera/a, AIR 2010 SC 1639; Myladimmal Surendran & Ors.
v. State of Kera/a, AIR 2010 SC 3281; Shyam v. State of
Madhya Pradesh, (2009) 16 SCC 531; Prithi v. State of E
Haryana, (2010) 8 SCC 536; Surendra Pal & Ors, v. State of
UP. & Anr., (2010) 9 SCC 399; and Himanshu@ Chintu v.
State (NCT of Delhi), (2011) 2 SCC 36).

     In view of the law laid hereinabove, no fault can be found
                                                                       F
with the evidence recorded by the courts below accepting the
evidence of closely related witnesses.
     15. In view of the above, we are of the considered opinion
that the facts and circumstances of present case do not warrant
any review of the judgments and orders of the courts below. The        G
appeal lacks merit and is accordingly dismissed.

8.8.8.                                        Appeal dismissed.