Holding

The Supreme Court held that the FIR was promptly lodged, the procedural requirements of Sections 154 and 174 CrPC were satisfied, the eye‑witness evidence was reliable and corroborated by medical findings, and the courts below correctly exercised Section 319 CrPC, thus the convictions stand.

Summary

The accused were convicted of murder under Sections 302, 148 and 149 of the IPC for chasing and assaulting the deceased, an act witnessed by three eye‑witnesses. The appellants challenged the conviction on several grounds, chiefly that the First Information Report (FIR) was not promptly lodged, that the copy of the FIR was not sent to the magistrate as required by Section 174 CrPC, that the eye‑witness testimony was unreliable, and that the prosecution had no basis to proceed against four of the accused under Section 319 CrPC. The Supreme Court examined the external checks – the contemporaneous police register, the site map, and the prompt investigation – and held that the FIR was lodged immediately after the incident, the copy was duly sent, and the eye‑witness accounts were reliable and corroborated by medical evidence. Consequently, the Court found no error in the findings of fact of the trial and High Courts and dismissed the appeals, upholding the convictions and sentences.

Issues considered

The FIR was promptly lodged or was ante‑timed.
Whether the copy of the FIR was sent to the concerned magistrate in compliance with Section 174 CrPC.
The reliability of the eye‑witness testimony of PW‑1, PW‑2 and PW‑5.
Whether the non‑mention of accused names in the post‑mortem requisition undermines the FIR’s credibility.
The evidentiary value of the site map and the police register (kaimisanha) as external checks.
The propriety of proceeding against appellants 5‑8 under Section 319 CrPC despite the absence of a charge‑sheet.
The consistency of medical evidence with the alleged injuries inflicted by the accused.
The effect of non‑examination of other potential witnesses on the prosecution case.

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 174, s. 319
Constitution of Indias. 136
Indian Evidence Act, 1872s. 114
Indian Penal Code, 1860s. 148, s. 149, s. 302

Subjects

murderunlawful assemblyFIRprompt lodgingeye‑witness testimonySection 319 CrPCappellate reviewevidentiary standardsmedical evidence

Judgment

GIRISH Y ADAY AND ORS. ETC. A
\'.

STATE OF MADHYA PRADESH

MARCH 29, 1996

[DR. AS. ANAND AND S.B. MA.IMUDAR, JJ.j
B
Indian Penal Code, 1860 : Sections 302 read with 148 and 149.

Murder--Unlawful asse111bly--Conviction fm~Validity of

Constitution of India, 1950: A11icle 136.

Appeal by s11ecial leave--Concwrent findings offacts by Cowts below--
c
Power of Supreme Cowt to intofere with-Held not to be inte1fered with
unless found unreasonable or shown against 1veight of evidence.

Code of Oiminal Procedure, 1973:

Section 154----F.I.R.--Delay in lodging of-Ame timed F.J.R.---Checks D
for dete11ninatio11 of-On facts held F.l.R. was promptly lodged--Evidentiary

.
value of promptly lodged F.l.R.-Non-mel1lioning of names of accused in
post-n101ten1 requisition-Held not by itself a circuntstance ntling out pronipt
'
lodging of F.I.R.
• Section 174----Jnvestigaticn--Duty of police to se11d copy of F.I.R. to E
conce111e'd Magistrat~Investigation t1iggered off inunediately after lodgnzent
of F.l.R.-Held copy of F.l.R. was sent to Magistrate as a matter of fact and
not by way of 011ly presumption.

Section 319----Murdei~Eight accused---chmge sheet filed by Police
only against four--Evidence against other four accused found by trial co1u1 F
p1i1na facie sufficient enough su11po11ing their involven1ent in the conunission
of offence-Process against other four accused issued by Cowt held justified.

l'riniinal trial-Witnesses-Version of-Consistent with ntedica/
evidence--Held established on facts--Version of eye witnesses found sufficient
to establish the prosecution cas~Non-exan1ination of neighbours as wit- G
ncsses held not fatal.

Oiminal tlial--Murde1-!11vestigation----Site Plan Recitals in--Eviden-
timy value of

The appellants (eight accused) were prosecuted under section 302
read with sections 148and149 of the Indian Penal Code 1860. The prosecu- H
1021
1022 SUPREME COURT REPORTS [1996] 3 S.C.R.

A tion story was that on 4th September 1982 at about 4.30 P.M. seven accused,
appellant 1 and appellants 3 to 8, armed with deadly weapons chased one G;
surrounded him and then assaulted hhn severely \Vith their w·eapons as a _,, . . . . ,.
result of which G fell d•nvn on the ground. The incident \\'as n·itnessed by the
younger brother of the deceased; PW-2, as well as by PW-I and PW-5. The
evidence of these \Vitnesses sho\\' that each one of them had come on his own
B to the spot. They had seen the incident when they were very near the
deceased. Their version was that after the attack the accused persons ran
away with their weapons. Immediately after witnessing the attack on his
brother by seven persons, PW-2 rushed to the Police Station for lodging the
F.l.R. After the departure of PW-2 from the scene of the incident, appellant

c 2 was alleged to have arrived on the scene of the incident who asked other
appellants to move away and then threw a bomb towards the fallen G. The
bomb exploded and whole orthe back of deceased 'G' was injured with burns
and glass pit~ces. In the }"';I.R. names of the seven accused were mentioned
except that of the eighth accused viz. appellant-2. After the F.I.R. was
recorded its contents were also recorded in 'Rojnamcha Sanha' maintained
D by police. lt furnished a conten1poraneous record of what was mentioned in
the F.l.R. This document also contained the recital that a copy of the F.l.R.
was being sent by the police station to the concerned Magistrate. The Inves-
tigating Ollicer who visited the scene of offence prepared the Panchnama of
the dead body as well as the site map. The site map contained names of only ••
three accused. The dead body of the deceased was sent for post mortem. In
E the requisition for post mortem, names of seven accused were not men-
tioned. A weapon with a broken handle which was used for committing the
offence was recovered by the Investigation Otlicer at a little distance from
the place where dead body was found.

()n conclusion of investigation charge-sheet \\'as tiled only against ap- .
F pellants I to 4. Appellants 4 to 8 were not charge-sheeted on the ground that
no case was found to be plinza facie proved against them. However, on ap-
plication from the complainant the Trial Judge exercised his powers under
section JI 9 of the Code of Criminal Procedure, 1973 holding that appellants
4 to 8 \\''ere also plinia facie guilty of the alleged offences. On revision
G preferred by appellants 4 to 8, the High Court remanded the matter to Trial
Court for reconsideration in the light of the evidence that may be recorded
by the Court. Once again the Trial Judge came to the conclusion that there
was enough involvement of these four accused in the commission of the
oll'ence and conse(JUently re-issued the process against them.

H The Trial Court convicted all the eight accused of the offences charged
GIRJSH YADAVv. STATE OFM.P. 1023

and sentenced them respectively to two years' rigorous in1prisonment each A
and imprisonment for life. A Division Bench of the M.P. High Court dis-
t- ~ n1issed tludr appeal.

The Trial Court as well as the High Coart placed implicit reliance on
eye-witness account of prosecution "itnesses PW-1, PW-2 and PW-5.

In appeals to this Court an attempt was made by the appellants to B
challenge the concurrent findings of fact recorded by both the courts below
against them.

On behalf of the appellants it was also contended that (i) F.I.R. was
not promptly lodged and was ante-timed; non-mentioning of names of the C
accused was a circumstance in support of the appellants; (ii) Copy of the
F.I.R. was not sent immediately to the nearest Magistrate as required under
Section 174 Cr. P.C.; (iii) the medical evidence does not support the
prosecution version regarding inflicting of injuries by the accused on the
deceased; (iv) the version of eye mtness that after inflicting injuries on the
deceased the accused ran alvay with their \\'eapons \\'aS not reliable because D
a 'Banka' with broken handle was fround by the Investigation Officer at a
little distance from the place were dead body was found; (v) presence of all
the three eye-\\itnesses simultaneously at the time of occurrence was not
". possible; (vi) the spot map contains nan1es of only three accused, other
accused were planted subsequently by the prosecution; (vii) as the Police
had not submitted charge-sheet against accused No. 5 to 8 the Court should E
not have roped them in; (viii) as the accused resided in difl'erent areas of the
town they could not have collected at a time on the spot to belabour the
deceased; and (ix) the residents of the locality who might have gathered on
spot as the evidences of police witnesses sluJ\v, were not examined.

Dismissing the appeals, this Court F
HELD : 1. The prosecution case against the accused has stood well
established on the evidence on record as accepted by both the courts below
and has ren1ained ftilly reliable. No case is made out in these appeals for
interference by this Court. [1041-F]

2. This Court in appeals against conviction recorded by the Trial
G
Court and as confirmed by the High Court usually and as a matter of course
does not interfere with concurrent findings of fact based on appreciation of
relevant prosecution evidence. Jn the present case both the courts, the. Trial
Court as well as the High Court, have placed implicit reliance on eye-mtness
account of prosecution witnesses PW-1, PW-2 and PW-5. Consequently un- H
1024 SUPREME COURT REPORTS [1996] 3 S.C.R.

A less the concurrent findings of fact reached by both the courts below are
found to be unreasonable or are found to involve any error of law or they are
shown to be against the weight of evidence, they would not be lightly inter-
fered with by this Court in appeals on special leave. In this case the convic-
...
tion rendered and the sentence imposed on all the 8 appellants by the Trial
Court and as confirmed by the High Court are well sustained on record and
B call for no interference in these appeals. [1029-H, 1030-A-B-F)

Chinta Pulla Reddy & On·. v. State of Andhra Pradesh, [1993) Supp. 3
sec 134, referred to.
3. The evidence in this case which has stood the test of cross examina-
C tion clearly indicates that the police was promptly informed by PW-2 and,
therefore, it cannot be said that the F.l.R. was ante-timed or was a doctored
one. [1023-E)

4. All the requirements of Section 154 Cr. P.C. were complied with
strictly. As per witness PW-2 he had left the place of crime and reached the
D Police Station for lodging the report immediately after he witnessed the
attack on his deceased brother by appellants 1 and 3 to 8 and that accused
No. 2 is said to have come thereafter on the scene of offence and had hurled
bomb on the deceased. If the F.I.R. was not promptly recorded and was
ante-timed then the name of accused No. 2 would have been reflected in the • •
F.I.R. This circumstance lends credence to the prosecution case that the
E informant, PW-2 promptly got recorded the F.I.R. by going to the Police
Station immediately after he saw the attack by the concerned seven accused
on his brother. This circumstance which is well established on record and
which is accepted by the High Court clearly negates the defence version that
the FIR was not promptly recorded at the Police Station. [1031-D·F)
F 5. The checks laid down by this Court in Maharaj Singh's case* for
determination of prompt lodging ofF.I.R. do not reflect an exhaustive list of
external checks. There may be other external checks also which may get well
established on record and may lend credence to the prosecution case about
the prompt recording of the F.l.R. In the present case two such external
G checks are clearly established. One such check consists of the site map
which was prepared on spot after the recording of the F.1.R. In the presence
of the first informant the site map was prepared on spot after the case was
already registered. The other external check is found from the 'kaimisanha'
which is the copy of the original 'sanha' entry maintained by the Police in the
Police Station. That entry shows that immediately after the FIR was
H recorded all the relevant contents were thereafter also recorded ·in this book.
/i

GIRISH YADAVv. STATE OFM.P. [S.B. MAJMUDAR, J.J 1025

It furnishes a contemporaneous record of what was mentioned in the F.1.R. A
Therefore, it is evident that the FIR was promptly recorded at the Police
Statioq almost hot on the heels of the incident. (1033-E-F, 1034-A-B]

Maharaj Singh (L/Nk.) Etc. v. State of U.P. Etc., [1994] 5 SCC 188,
referred to.

6. Once it is found that the FIR was promptly lodged after the incident
B
it must be held that the contents of the FIR would reflect the first hand
account of what had actually happened on spot and who were responsible for
the offence in question. It is in the light of the prompt lodging of the FIR in
the present case that the version of the eye-witness account supporting the
prosecution case as revealed in the FIR has to be appreciated. Both the C.
courts have placed implicit reliance on the testimonies of PW-1, PW-2 and
PW-5. Their evidence has well stood the test of cross examination. They have
clearly implicated all the eight appellants in connection with the crime of
murder. They could not be treated as chance witnesses. Their names were
already revealed in the FIR. Consequently no infirmity can be found in the
findings reached by both the courts below on the basis of the eye-witness D
account of these witnesses. (1036-C, E-F]

State of Punjab v. Swja Ram, AIR (1955) SC 2413, referred to.
••
" 7. The 'Kahnisanha' entry which was a contemportaneous record of
the lodging of the FIR itself mentions that the copy of the FIR was being sent E
by the Police Station to the concerned Magistrate. Investigation v!z. drawing
inquest report, Panchnamas of recoveries etc. started soon after the lodging
of the FIR. Hence the absence of positive proof regarding the receipt of a.
copy of FIR by the Magistrate at the earliest would pale into insignificance
on the facts of the case. In fact there is ample evidence on record of this case
from which inference can be drawn that copy of the FIR 1nust have been sent F
to the concerned Magistrate as a matter of fact and not by way of only a
presumption to be drawn under Section 114 of the Indian Evidence Act.
(1034-H, 1035-E-G]
Bir Singh & Ors. v. 77ie State of Uttar Pradesh, AIR (1978) SC 59 and
A1jzm Mmik & Ors. v. State of Bihm; JT (1994) 2 SC 627, referred to. G
8. It is difficult to appreciate how in the requisition application for
post mortem as addressed by witness, Station Officer, to the Medical Officer
there was· any occasion for 'him to mention the names of the accused. The
information which was to be sent to the doctor was regarding the homi-cidal
death of the person concerned whose body was sent for post mortem. Non- H
,,
'\

1026 SUPREME COURT REPORTS (1996] 3 S.C.R.

A nu~ntioning of the na1nes of the accused in that request would not by itself be
a circumstance to rule out the prompt tiling of the First Information Report
which has stood well established on record of the case. [1034-E-F]

9. It is not possible to agree with the contention that the n1edical
evidence does not support the prosecution version regarding inflicting of'
B injuries by the accused on deceased. [1037-C]
10. Merely because one 'banka' was found with loose handle a little
away from the place of occurrence it could not be said that the eye-witness
account of the assault by the accused on the deceased was in any way
rendered suspect. Both the Courts, therefore, were right in not placing any
C implicit reliance on this circumstance. [1037-H, 1038-A]

11. The recitals in the map would remain purely heresay and could not
"·•
be read as evidence in the case. The person who is said to have given infor-
mation r.ecorded in the map has not been examined in the case. Consec1uent-
ly whatever he might have dictated on the spot when the map was prepared
D would remain a mere hearsay and that would not detract from the eye-wit-
ness account or even from the recitals in the FIR which had clearly involved
all the accused. [1038-E-G]

E
12. There is enough power with the Court in a proper case to exercise
its jurisdiction under Section 319 Cr. P.C. In the present case the High
Court had remanded the matter for reconsideration in the light of the
' .
evidence that may be recorded by the Court and that is how after recording
the evidence of eye-witnesses process was re-issued against appellants 4 to
8. As the evidence recorded by the court showed that there was enough invol-
vement of these accused in the commission of the offence, and therefore, they
stood on the same pedestal as appellants I to 4, they could not be said to
F have been wrongly proceeded against as accused under Section 319 Cr. P.C.
[1038-A, 1039-A-B]
13. It is easy to visualise that when it is the prosecution case that these
accused had collected together having formed an unla\.Vful assembly, it was
not dillicult for them to assemble at a spot where the deceased was found
G moving and to belabour hirn in furtherance of their common object and for
that purpose they may as well come from different parts of. the city where
they were staying, [1040-F-G]

14. If the eye-witness account of the three witnesses was found accept-
able by both the courts below and when that eye-witness account has well
H stood the test of cross-examination, non-examination of other witnesses
GIRISI-1 YADAVv_ STATE OF M.P. [S.B. MAJMUDAR, .LJ 1027

would pale into insignificance. It is also easy to visualise that witnesses who A
are not concerned with the deceased n1ay like to safely keep away from police

." proceedings or proceedings before the court and only those Vt ho feel ag-
1

grieved by the assault of the act:used on the deceased n1ay be bold enough to
come fornard to offer themselves as \Vitnesses. Non-examination of neigh-
bours as witnesses, therefore, cannot be fatal to the prosecution case as it
stands l'ully supported by acceptable eye-witness account. [1040-H, 1041-A] B

CRIMINAL APPELLATE .JURISDICTION: Criminal Appeal No_
318 of 1988 Etc.

From the Judgment and Order dated 27.2.88 of the Madhya Pradesh
High Court in CrL A. No. 908 of 1986. C

Rajender Singh, S.C. Dutta, K_ N. Shukla, Vivek Gambhir, S.K
Gambhir, C.L Sahu, Sakesh Kumar, Uma Nath Singh for the appearing
parties.

R.C. Verma and S_P_ Khera, for the complainant. D

The Judgment of the Court was delivered by

S.B. MAJMUDAR, J_ These three criminal appeals have been filed hy
in all 8 accused who have felt aggrieved by their conviction and sentence
recorded by Additional Sessions Judge, Jabalpur in Sessions Case No. 56 of E
1983 by his judgment dated 8th August 1986 convicting them under Section
148 and Section 302 read with Section 149, Indian Penal Code (LP.C.) and
sentencing them respectively to two years' rigorous i1nprisonment each and
imprisonment for life_ Sentences were ordered to run concurrently. They
havL also felt aggrieved by I.he disn1issal of their Cri111inal Appeal No. 908 of
1986 by a Division Bench of the Madhya Pradesh High Court at Jabalpur on
F
• 26th February 1988. Though all the 8 appellants had filed one criminal ap-
peal before the High Court, in this Court they have filed separate appeals by
obtaining special leave to appeal. Criminal Appeal No. 318of1988 is moved
by accused nos. 6, 7, 8 an<l 5 respectively. Criminal Appeal No_ 501 of 1988 is
filed by accused no. 2 while Criminal Appeal No. 63 of 1991 is filed by G
accused nos. 1, 3 and 4.

Facts leading to these appeals

On 4th September 1982 at about 4.30 p.m., according to the prosecu-
tion story, in a narrow lane of Budhaiya Mahalia near Lal Chabutra in the H
1028 SUPREME COURT REPORTS [1996[ 3 S.C.R.

A city of Jabalpur, deceased Gudda alias Narayan Tiwari was chased by the
appellants-accused and murdered. The appellants Chandu Patel, Ganesh
Patel, Bhab<wandas Yadav and Girish Yadav are alleged lo have armed them-
selves with 'bankas', appellant .Jaggu Yadav with 'pharsa' and appellants
Rajjan Yadav and Rikhilal with iron rods. While deceased Gudda Tiwari was
being allegedly chased by these, appellants on Mirzapur road, he entered a
B narrow lane to escape but was over-powered by the appellants. The appel-
lants are also alleged to have shouted that 'Kill Gudda Tiwari and he should
not escape today'. In the lane in front of the house of .lamna Maharaj, it is
alleged that the appellants who were armed with these deadly weapons sur-
rounded Gudda Tiwari and assaulted him severely with their weapons, as a
C result of which Gudda Tiwari fell down on the ground. The incident was
witnessed by In du Tiwari, P. W. 2 - younger brother of the deceased who
shouted for help but none came forward to save deceased Gudda Tiwari.
This incident was also witnessed al the same time by Badri Prasad, P.W.1,
Ganesh Patel, P.W. 5 and Balkrishna, D.W. l. When Indu Tiwari, P.W. 2 the
younger brother of the deceased, perceived from a distance that Gudda
D Tiwari had fallen on the ground and appeared to him to be dead, he rushed
to Police Station Gohalpur on foot after abandoning his motor-cycle and
lodged the First Information Report (Ex. P-1) which was recorded by S.R.
Tandan, P.W. 11 who was then posted as Town Inspector. After departure of
Indu Tiwari from the scene of the incident, the appellant Vijay Patel who is •
alleged to have arrived on the scene of the incident, asked other appellants
E lo move away and then threw a bomb towards the fallen Gudda Tiwari. It is
alleged that the bomb exploded and whole of the back of the deceased
Gudda Tiwari was injured with burns and glass pieces.

After recording the FIR, the police machinery immediately moved and
while S.R. Tandon, P.W.11 was proceeding towards the place of the incident
F he perceived that one of the alleged assailants Chandu Patel was proceeding
towards the Police Station on a bicycle he.nee he was apprehended then and
there and taken to Police Station. When the police arrived on the scene, a
huge excited crowd had gathered there by the time. Shri T.C. Usrey, P.W. 13
prepared a map of the spot (Ex. P-15) and recovered the blood-soaked earth,
G different parts of a 'banka abandoned there and also prepared the inquest
report (Ex. P-11) on the spot. Subsequently T.C. Usrey, P.W. 13 sent the
dead body of Gudda Tiwari for post mortem examination. Post mortem
examination was conducted by Dr. A.K. Yadav, P.W. 6 on 5.9.1982 at about
11.15 a.m.

H
GIRISH YADAVv. STATE OFM.P. [S.B. MAJMUDAR, J.] 1029

P.W. 13, T.C. Usrey eoeeluded the investigation, arrested appellant A
nos. l, 2, 3 and 4 and filed l_Ke ehargcsheet against these four persons only, in
the Committal Court. According lo Shri Usrey he filed the chargesheet only
against appellants 1, 2, 3 and 4 namely Chandu Patel, Vijay Patel, Ganesh
Patel and Bha1,'Wandas and not against appellants No. S Rikhilal, No. 6 Girish
Yadav, no. 7 Jaggu Yadav and no. 8 Rajjan Yadav, because in the opinion of
his superior officers, no case \Vas found to be prima facie proved against B
them during investigation. These four appellants Chandu Patel, Yijay Patel,
Ganesh Patel and Bha!,'Waodas were committed to stand trial in the Court of
Sessions. The learned Trial Judge, on application from the complainant,
exercised his powers under Section 319 Code of Criminal Procedure (Cr.
P.C.) and proceeded against appellant nos. 5, 6, 7 and 8 who appeared to the
Trial Judge to be prima facie guilty of the commission of the alleged offence.
c
Appellant nos. 5 to 8 challenged that order in the High Court. A
learned single Judge of the High Court allowed the Criminal Revision Ap-
plication filed by them and remanded the matter to the Trial Court with a
direction to record the statements of prosecution witnesses and then to D
decide whether these accused should be, proceeded with as per Section 319,
Cr. P.C. Thereafter the learned Sessions Judge recorded the statements of
witnesses Badri, P.W. 1 and Indu Tiwari, P.W. 2 and found that there was
plin1a facie case against these appellants and, therefore, Once again exercis-
ing his powers under Section 319 Cr. P.C. proceeded against them as ac-
E
cused. That is how along with original accused nos. l to 4, these accused nos.
5 to 8 also stood their trial for the offences with which they were charged.
After recording the evidence offered by the prosecution and also after
recording evidence led on behalf of the Defence the learned Sessions Judge
came to the conclusion that all these accused \Vere guilty of having com-
• 1nittcd 1nur<lcr of deceased Gudd<.J Thvari and, therefore, they \Vere con- F
victed and sentenced as aforesaid. As noted earlier they failed in their appeal
before the High Court in convincing the High Court about their innocence.
Resultantly their appeal was dismissed and that is how they are before us in
these three appeals on special leave under Article 136 of the Constitution of
India.
G
As these are appeals pursuant to the leave granted under Article 136
of the Constitution of India and as an attempt is made in these appeals by
learned senior counsel for the appellants to challenge concurrent findings of
fact recorded by both the courts below against the appellants, it has lo be
kept in view that this Court in appeals against conviction recorded by the H
1030 SUPREME COURT REPORTS [1996] 3 S.C.R.

A Trial Court and as confirmed by the High Court usually and as a matter of
course does not interfere with concurrent lindings of fact hasc<l on apprecia-
tion of relevant prosecution evidence. In the present case both the courts, the
Trial Court as well as the High Court, have placed implicit reliance on
eye-witness account of prosecution witnesses Badri P.W. 1, Indu Tiwari,
P. W. 2 and Ganesh Patel, P.W. 5 Consequently unless the concurrent lind-
B ings of fact reached by both the courts below arc found to be· unreasonable
or arc found to involve any error of law or they are shown to be against the
weight of eviuencc, they would not be lightly interfered with by this Court in
appeals on special leave. In the case of Chinta Pu/la Reddy & 01>'. v. State of
Andhra Pradesh, 1993 Supp. (3) SCC 134 one of us (Dr. A.S. Anand, .l .)
c speaking for the Division Bench consisting of himself and N.P. Singh J., has
observed in this connection as under:

"Though generally speaking the Supreme Court does not reap-
preciate the evidence in an appeal, on special leave being granted,
under Article 136 of the Constitution of India where two courts
D have appreciated the evidence and recorded concurrent findings,
but since the High Court acquitted A-3 and A-6, we have, with the
assistance of learned counsel for the parties, ourselves appreciated
the material evidence in the case, \Vith a vie\V to determine whether
the conviction and sentence recorded against the three appellants
is justified or not. '1
E
Therefore, \Vith a vie\v to ascertaining whether the conviction against the
appellants as rendered hy the Trial Court and as confirmed by the High
Court is well sustained on evidence, we went through the relevant evidence
on record with the assistance of learned senior counsel for the appellants as
f \vell as learned counsel for the rcsrondcnt-State. Having given our anxious
consideration to the subn1issinns made by learned senior counsel for the ap-
pellants we have·rcached the conclusion that the conviction rendered and the
sentence imposed on all the 8 appellants by the Trial Court and as confirmed
by the High Court arc well sustained on record and call for no interference in
these appeals.
G
We may nO\V proceed to deal with the main grievance voiced by the
learned senior counsel for the appellants against the impugned judgments. In
\:.
the first place it was submitted that the FIR, Ex. P-1 was ante-dated or
antc~timed. ln this connection it \Vas urged that though pro~ccution has
H alleged that the incident had occurred on 4th September 1982 at about 4.30
p.m. the evidence on record showed that the FIR was not promptly recorded
A I
'

GIRISH YADA V v. STATE OF M.P. [S.B. MAJ MU DAR J. J 1031

but saw the light of the day later on and, therefore, what is stated in the FIR A
should not he t11ken as gospel truth. So far as this grievance is concerned it
was examined by both the courts below. So far as the High Court is con-
cerned it has noted that such a suggestion Vii'as not even pointed out to \Vitncss
fndu Ti\l.rari, P.W. 2 who gave the First Information Report nor to S.R.
Tandon, P.W. 11, Town Inspector who had recorded the FIR after the inci-
dent. Not only that but the defence had also examined Bhawani Prasad, B
Head Constable as P. W. 4who stated that after the FIR was recorded, it was
registered in 'Rojnamacha Sanha' at No. 285, Ex. P-26. That document con-
tained summary of the FIR, the names of seven appellants, Chandu Patel.
Ganesh Patel, Bhagwandas. Rikhilal, Girish Yadav, Jaggu Yadav and Rajjan
Yadav, except that of appellant no 2 Vijay Patel, who is said to have come on C
the scene and hurled the bomb after the complainant Indu Tiwari had left the
scene of offence. The High Court in paragraph 12 of its judgment has noted
that witness Bhawani Prasad. Head Constable, P.W. 4 had proved a copy of
the book maintained by the Police Station in which the contents of the FIR
were recorded. This document also contained the recital that a copy of the
FIR was being sent by the Police Station to the concerned Magistrale. And D
thus all the requirements of Section 154, Cr. P.C. were complied with strictly.
It is also pertinent to note that as per witness Indu Tiwari, P.W. 2 he had left
' . the place of crime and reached the Police Station for lodging the report
immediately after he witnessed the attack on his deceased brother Gudda
Tiwari by appellants land 3 to 8 and that accused no. 2 Vijay Patel is said to
have come thereafter on the scene of offence and had hurled bomb on the E
deceased. If the FIR, Ex. P-1 was not promptly recorded and was ante-timed
then the name of accused no. 2 would have been reflected in the FIR. This
circumstance lends credence to the prosecution case that the inforn1ant,
P."W. 2 Indu Tiwari promptly got recorded the FIR by going to the Police
Stalion i1nn1cJiately after he saw the attack by the concerned seven <:iccuscd F
·on his brother. This circun1stance which is well established on record and
which is accepted by the High Court, in our view, clearly negates the defence
version that the FIR was not promptly recorded at the Police Station. It is
true, as learned senior counsel for the appellants subn1itted before us that
Police Sub-Inspector T.C. Usrey, P.W. 13 had deposed before the Trial
Court that no 5th September 1982 he was posted as Sub- Inspector of Police G
at Police Station Gohalpur and that after the report of the incident was made
·'·~ he had gone to the spot of occurrence along with town Inspector, S.R. Tan-
don and other police sub-inspector. But it appears that the mentioning of the
date 5th September 1J82 is not accurate as the other evidence which we will
presently refer to, shows that the police had gone on spot immediately after
H
/'\

1032 SUPREME COURT REPORTS (1996]3 S.C.R.

A lodging of the FIR on 4th September 1982 itself. This is clearly borne out
from the evidence of P.W. 9, S.R. Kinkar who was sub-Inspector attached to
Gohalpur Police Station. He had stated that he had sent the body of
deceased Gudda alias Narayan Prasad Tiwari to Medical College for post
mortem on 4.9.82. The prescribed form, Ex. P-12 was filled in by him. That
the dead body was lying at the site of crime and on getting information he,
B accompanied by Inspector Tandon and Sub-Inspector Usrey, had reached
the site. Similar is the evidence of P.W. 1l S.R. Tandon who had written
down the FIR when witness P.W. 2 came to the Police Station immediately
after the incident. Shri Tandon, P.W. 11 stated in his evidence that on 4.9.82
he was posted as Town Inspector at Gohalpur Police Station. The witness
C stated that on 4.9.82 complainant Indu Tiwari had reported at Police Station.
This report, Ex. P-1 was written by him. It was signed by Indu Tiwari and by
him. On the basis of this report he registered a case under Crime No. 420/82
and under Section 302 read with Sections 148 and 149, !PC. This report was
scribed by him as dictated by Indu Tiwari. After registering the crime he
went to the site of crime with stamp. On reaching the site he found the dead
D body lying in the 'Kulia'. It was of Gudda Tiwari. He has further stated that
sub-Inspector Usrey was also with him.He asked him to prepare Panchnama
after examining the body After preparing the Panchnama Usrey Informed
him that the Panchnama of the dead body was complete. After that the dead
body was sent for post mortem. This evidence which has stood the test of
E cross examinatio11 clearly indicates that the incident occurred in the after-
noon of 4th September 1982 and the police was promptly informed by P. W.
2 lndu Tiwari and, therefore, it cannot be said that the FIR was ante-timed
or was a doctored one. Learned senior counsel for the appellants invited our
attention to the decision of this Court in the case of Meharaj Singh (L/Nk.)
Etc. v.State ofU.P. Etc., (1994) 5SCC188wherein one of us Dr. A.S. Anand,
F .I. sitting wit.h Faizan Ud<lin, .J. had to consider a sin1ilar grievance regarµing
the alleged ante-timing of FIR. In this connection the following pertinent
observations were made in paragraph 12 of the Report:
01
FIR in a criminal case and particularly in a murder case is a vital
and valuable piece of evidence for the purpose of appreciating the
G evidence led at the trial. The object of insisting upon prompt
lodging of the FIR is to obtain the earliest information regarding
the circumstance in which the crime was committed, including the
names of the actual culprits and the parts played by them, the
\Vea pons, if any, used) as also the names of the eyewitnesses, if any
Delay in lodging the FIR often results in embellishment, which is
H
GIRISH YADAV v. STATE OF M.P. [S.8. MAJMUDAR, J.] 1033

a creature of an afterthought. On account of delay, the FIR not A
only gets bereft of the advantage of spontaneity, danger also creeps
in of the introduction of a coloured version or exaggerated story.
With a view to determine whether the FIR was lodged at the time
it is alleged to have been recorded, the courts generally look for
certain external checks. One of the checks is the receipt of the copy
of the FIR, called a special report in a murder case, by the local B
Magistrate. If this report is received by the Magistrale late it can
give rise to an inference that the FIR was not lodged at the time
it is alleged to have been recorded, unless, of course the prosecu-
tion can offer a satisfactory explanation for the delay in despatch-
ing or receipt of the copy of the FIR by the local Magistrate. The C
t second extemal check equally important is the sending of the copy
of the FIR along with the dead body and its reference in the inquest
report. Even though the inquest report, prepared under Section
174 CrPC, is aimed at serving a statutory function, to lend credence
to the prosecution case, the details of the FIR and the gist of
statements recorded during inquest proceedings get reflected in D
the report. The absence of those details is indicative of the fact
that the prosecution story was still in an embryo state and had not
been given any shape and that the FIR came to be recorded later
on after due deliberations and consultations and was then ante-
timed to give it the colour of a promptly lodged FIR."
E
Now it is no doubt true that the external checks indicated in the said decision
would lend credence to the prosecution case that the FIR was promptly
recorded but what is enumerated in the said decision is not an exhaustive list
of external checks. There may be other external checks also which may get
well established on record and may lend credence to the prosecution case
about the prompt recording of the FIR. In the present case two such external F
checks are clearly established. One such check consists of the site map, Ex.
• P-15 which was prepared on spot after the recording of the FIR. Witness
P.W. 13 T.C. Usrey stated in his evidence that on visiting the scene of offence
after the recording of the FIR the Panachnama of the dead body was
prepared on spot which is Ex. P-11 and at the same time he prepared the map
of the spot ofoccurrence which is Ex.P-15. When we turn to Ex. P-15we find G
that the site map of the crime was prepared in presence of the Panchas in
Crime Case no. 420/82 under Sections 148/149, 302 !PC and it was prepared
while Shri Indu Tiwari was present. Thus, in the presence of the first inform-
ant the site map was prepared on spot after the case was already registered
as Crime Case No. 420/82. We have already noted the evidence of Shri S.R.
Tam'~n, P.W.11 who had stated that he had written down the report Ex. P-1 H
1034 SUPREME COURT REPORTS [1996] 3 S.C.R.

A as dictated to him byP.W. 2 lndu Tiwari and had given the crime No. 420/82.
This clearly shows that the FIR was recorded almost on the heels of the
incident promptly and thereafter the site map was prepared on spot. When
the site map mentions the Crime C:ase No. 420/82 it lends credence to the
prosecution case that the FIR was already recorded at that serial number in
the Police Station Before the police machinery was put into action. The other
B external check is found from the 'kaimisanha' Ex. P-27A which is the copy of
the original 'sanha' entry maintained by the police in the Police Station. That
entry shows that immediately after the FIR was recorded all the relevant
contents were thereafter also recorded in this book. It furnishes a contem-
poraneous record of what was mentioned in the FIR. In the light of this
C clinching evidence, therefore, it is not possible for us to agree with the con-
tention of the learned senior counsel for the appellants that the FIR was
ante-timed. We entirely agree with the findings reached by the Trial Court as
well as by the High Court that the FIR was promptly recorded at the Police
Station almost hot on the heels of the incident in the afternoon of 4th Septem-
ber 1982 and it reflects prompt and timely account of what had taken place on
D spot on that fateful afternoon and who were the assailants of deceased Gudda
Tiwari. In this connection learned senior counsel for the appellants also sub-
mitted that if the investigation on spot was done after the recording of the
FIR there was no reason why in the requisition for post mortem Ex. P-12
names of seven accused were not mentioned and it was recited that on 4th
September 1982 Gudda alias Narayan Tiwari died due to some old enmity
E and his enemies inflicted injuries on his body. It is difficult to appreciate how
in the requisition application for post mortem as addressed by witness S.R.
Kinkar, Station Officer to the Medical Officer there was any occasion for him
to mention the names of the accused. The information which was to be sent to
the doctor was regarding the homicidal death of the person concerned whose
body was sent for post mortem. Non-mentioning of the names oflhe accused
F in that request would not by itself be a circumstance lo rule out the prompt
filing of the First Information Report which was stood well established on
record of the case as seen earlier. Consequently even this aspect cannot
advance the case of the appellants for showing that the FIR would not have
been recorded prior to the preparation of the inquest. Panchnama and the
G application for post mortem Ex. P-12.
It was next contended by learned senior counsel for the appellants
relying on Section 174 Cr. P.C., that it is the duty of the police to immediately
give information regarding the commission of offence to the nearest Exe cu- I( (
rive Magistrate empowered to hold inquest and that in the present case such
evidence is lacking. It is not possible to agree with this contention for the
H simple reason that the 'kaimisanha' entry Ex. P-27A which was a contcm-
GIRISH YADAVv. STATE OFM.P. [S.8. MAJMUDAR . .I.] 1035

poraneous record of the lodt,~ng of the FIR itself mentions that the copy of A
the FIR was being sent by the Police Station to the concerned Magistrate. It
is true that the Dak Book or the Outward Register which would have shown
the sending of the FIR lo the M agislrate could not be produced by the
prosecution as it was destroyed after lapse of three years as mentioned by the
Head Constable Bhawani Prasad, P.W. 4 in his evidence, but that would not
detract from the veracity of the entry made in the 'kaimisanha' which was B
maintained at the Police Station in the usual course of business. The witness
had stated that at 1710 hrs. of 4th September 1982 the case under Section 302
was registered on the report of Indu Tiwari. It is also pertinent to note that
investigation viz. drawing inqu'est report Panchnamas of recoveries etc.
( started soon after the lodging of the FIR, as seen earlier. Hence the absence
of positive proof regarding the receipt of a copy of FIR by the Magistrate at c
the earlier would pale into insignificance on the facts of the case. In this
connection we may also refer to the evidence ofD.W. 4 V.V. Srivastava. This
witness who was examined on behalf of the defence to show that the copy of
the FIR must not have reached the Magistrate promptly could not help the
defence. The witness stated that he had assumed the charge as Reader in the
court of Chief Judicial Magistrate since October 1982 and he did not know D
that Police Station Gohalpur was under the jurisdiction of which .Judicial
Magistrate and he was also not aware if any report's copy lodged in Septem-
• ber 1982 at Police Station Gohalpur under Crime No. 420/82 was received in
CJM Court or not. He could not bring the record of 1982 in court as it was
not traceable. Under these circumstances, therefore, it could not be assumed
that the report would not have been sent to the concerned Magistrate E
promptly especially when the investigation appears to have been triggered of
promptly after the lodgment of the FIR at the Police Station and when
inquest Panchnama and drawing up of site map was done on the scene of
offence at the·earliest after the lodgment of the FIR in the Police Station as
seen earlier. Learned senior counsel for the appellants in this connection
• invited our attention to t\vo judgments of this Court. In the case of Bir Singh F
& Ors. v. 771e State of Uttar Pradesh, AIR (1978) SC 59,. It was observed in
paragraph 11 of the Report by S. Murtaza Fazal Ali, .I., speaking for this
Court that in that case the High Court indulged in another conjecture that
the FIR must have been sent to the P.P. and lo the Elaqa Magistrale. But this
was however a matter which had lo be proved like any other fact. As we have G
seen earlier there is ample evidence on record of this case from which in.
fcrence can be drawn that copy of the FIR must have been sent to the
concerned Magistrale as a matter of fact and not by way of only a presump-
tion to be drawn under Section l14,lndian Evidence Act Learned senior
counsel for the appellants then invited our attention to a decision of this
Court in the case olA1ju11 Mmik and 01s. v.State ojBilwr, JT (1994) 2 SC 627 H
1036 SUPREME COURT REPORTS [1996] 3 S.C.R.

A wherein one of us Dr. A.S. Anand, J., sitting with Faizan Uddin, .T., had to
consider the necessity of forwarding the report to the Magistrate as per
Section 157 and 159, Cr. P.C. Faizan Uddin, .I., speaking for this Court in that
case observed that though the incident had occurred in the intervening night
of 19/20th July 1985 the report was despatched to the Magistrate on 22nd
.July 1985. Thus on the facts of that case it was found that the FIR was not
B promptly despatched to the Magistrate and consequently it was found that
the lodging of the FIR in the morning of 20th July 1985 remand doubtful. As
we have already discussed earlier, on the facts of the present case, in the light
of the external checks well established on record, it could not be said that the
recording of FIR would remain doubtful or that copy thereafter was not
shown to have been promptly sent by the concerned Police Station to the
C Magistrate or that there was any breach of Section 174, Cr. P.C.

Once it is found that the FIR was promptly lodged after the incident by
witness P.W. 2 Indu Tiwari, and that set in motion the police machinery
which started investigation on spot immediately thereafter, it must be held
that the contents of the FIR would reflect the first hand account of what had
D actually happened on spot and who were responsible for the offence in
question. In this connection learned counsel for the respondent rightly in-
vited our attention to a decision of this Court in the case of State of Punjab v.
Surja Ram, AIR (1995) SC 2413 wherein M.K. Mukherjee, J., Speaking for
this Court observed that the FIR which was promptly lodged and which ,.-
contained detailed outline of the prosecution case clearly corroborates eye-
E witness account.

It is in the light of the prompt lodging of the FIR in the present case
that the version of the eye-witness account supporting the prosecution case
as revealed in the FIR has to be appreciated. As noted earlier both the courts
have placed implicit reliance on the testimonies of Badri, P.W.1 lndu Tiwari,
F P.W. 2 and Ganesh Patel, P.W. 5. We have carefully gone through their
evidence and we find that their evidence has well stood the test of cross
examination. They have clearly implicated all the eight appellants in connec-
tion with the crime of murder of deceased Gudda Tiwari. They could not be
treated as chance witnesses. Their names were already revealed in the FIR
Ex.P-1. In fact the version found in the FIR fully corroborates the eyewitness
G account of these witnesses. It is true that the name of accused no.2 Vijay
Patel is not mentioned but that omission also is well explained byP.W. 2 lndu
Tiwari who stated that he left the scene of offence after seeing the attack on
his brother by these seven accused and it is also in evidence of other prosecu-
tion witnesses that accused no. 2 came latter and hurled a bomb on the
deceased Consequently no infirmity can be found in the findings reached by
H both the courts below on the basis of this eye-witness account of these \vii-
GIRISH YADAVv. STATE or M.P. [S.B. MAJMUDAR, J.J 1037

nesses. Learned senior counsel for the appellants tried to urge that the A
injuries deposed to by these witnesses as allegedly inflicted by the appellants
on the deceased do not fit in with the medical evidence. It is difficult lo agree.
Once we turn to the medical evidence we !ind that Dr. A.K. Yadav who had
performed post mortem on deceased Gudda Tiwari has found 12 incised
wounds on different parts of his body and there were burning injury on the
back of the deceased. The whole back had turned black, black soot came out B
on rubbing by cotton. The eye- witness account clearly showed that the
accused who had armed themselves with Sharp cutting weapons like 'banka'
and 'pharsa' had caused these injuries and the bomb injury which were
caused by accused no. 2 is found to have left the burning injuries on the back
of the deceased. It is, therefore, not possible to agree with the contention of
learned senior counsel for the appellants that the medical evidence does not C
support the prosecution version regarding inflicting of injuries by the ac-
cused on deceased.

It was next contended that the eye-witness account shows that after
inflicting injuries on the deceased the accused ran away with their weapons
while the evidence of P.W. 13 T.C. Usrey shows that he found at a distance D
of 36 ft. from the place where dead body was lying a 'banka' with a broken
wooden handle and that it was not the prosecution case that one of the
'bankas' was thrown by any of the accused. In our view this circumstance in
no way detracts from the reliability of the eye-witness account of these wit-
nesses. P .W. 1 Badri had clearly deposed that while the witness was going in
Bandhiya Mohaila he saw deceased Gudda Tiwari Running from the main E
road and seven persons Bhagwandas, Jaggu, Girish, Rikhi Lal, Rajjan, Chan-
du and Ganesh were chasing Gudda tiwari. faggu was holding a 'pharsa' in
his hand and Girish had a 'bakka'. Ganesh had also a 'Bakka'. Rikhi Lal was
holding an iron rod and Rajjan was also holding an iron rod. These people
surrounded Godda Tiwari and Jaggu hit him with 'pharsa' on his head from
back side. The other persons also attacked him with weapons they were F
holding. Gudda Tiwari having been beaten fell down on the ground on his
stomach.

When Gudda w".s being assaulted, Balkrishan was following the wit-
ness 3-4 steps behind. Indu Tiwari who is the younger brother of Gudda
came from main road side. Binda Chaudhry and Gunnu were seen. Indu G
Tiwari cried for help. When Gudda .tiwari fell down Indu Tiwari left the
scene. After Gudda fell down on the ground Vijay came there. He shouted,
, ,.., you go back I am throwing a bomb. Hearing this all the accused went back
and Vijay threw a bombay on Gudda which exploded and hit Gudda's back.
This version of the witness was fully corroborated by P.W. 2 Indu Tiwari and
P.W. 5 Ganesh. H
1038 SUPREME COURT REPORTS [1996] 3 S.C.R.

A Merely because one 'banka' was found with loose handle 36 ft. away from the
place of occurrence it could not be said that the eye-witness account of the
assault hy the accused on the deceased was in anyway rendered suspect. Both
the courts1 therefore, were right in not placing any i1nplicit reliance on this
circumstance. It would also he possible to infer that once the accused ran
away with the weapons one of the 'bankas' might have been thrown aside by
B the fleeing accused. It is not as if any 'banka' was found lying on spot near the
dead body.

It was next contended by learned senior counsel for the appellants that
it is not possible to believe that all the three eye-witnesses would have an
occasion to come on spot simultaneously when the accused were to mount
C the attack on the deceased. The evidences of these witnesses show that each
one of them had come of his own on the spot. The witnesses were residing in
the same locality and merely because they were known to complainant P.W.
2 Indu Tiwari it could not be said that they would depose falsely only on that
ground. Nothing was alleged in their cross examination to suggest that they
were in any way inimical to the accused. They had no axe to grind against the
D accused so that they would falsely implicate them in the incident.

It was next contended that the spot map Ex. P-13 recited that accused
Chander, Ganesh and Vijay had assaulted G udda Tiwari at the site indicated
in the map and this showed that the names of other accused are subsequently
planted by the prosecution in connection with the incident. It is difficult to •
E appreciate this contention. The recitals in the map would remain purely
heresay and could not be read as evidence in the case. In this connection we
may profitably refer to a decision of this Court wherein one of us Dr. AS.
Anand, J., sitting with M.K. Mukherjee, .I., while deciding Criminal Appeal
No.489 of 1985 on 12th March 1996 held that recitals in the map would
remain heresay evidence in the absence of exan1ination of the person who is
F alleged to have given information recorded in the map. Same is the position
in the present case. The person who is said to have given information
recorded in the map Ex. P-13, namely, Mukesh Kumar is not examined in the
case. Consequently whatever he might have dictated on the spot when the
map was prepared would remain a mere heresay and that would not detract
from the eye-witness account or even from the recitals in the FIR, Ex. P-1
G which had clearly involved all the seven accused.

It was next submitted by learned senior counsel for the appellants that
once the police had not submitted chmgesheet against accused nos. 5 to 8 the
court ought not to have roped them in. It is not possible to agree with this
contention also. There is enough power with the court in a proper case to
H exercise its jurisdiction under Section 319 Cr. P.C. In the present case as we
GIRISH YADAVv. STATE OF M.P. [S.B. MAJMUDAR, l.] 1039

have seen earlier, the High Court had rcmandcJ the matter for recon.sidera- A
ti on in the light of the evidence that may be recorded by the court and that is
ho\v after recording the evi<lenc~ of cye-\vitnesses process \Vas re-issued
against these appellants. As the evidence recorded by the court showed that
there \Vas enough involvement of these accused in the cominission of the
offence and, therefore, they stood on the same pedestal as accused 1to4 they
could not be said to have been wrongly proceeded against as accused under B
Section 319 Cr. P.C.

It was ne\t contended that the courts below had erred in placing im-
plicit reliance on the eye witness account of the witness Badri P.W. 1 as he
himself has signed an affidavit Ex. D-1 showing that he was not present on
the scene of offence at the relevant time. This submission is stated to be C
rejected for the simple reason that witness P.W. 1 when confronted with this
alleged affidavit Ex. D-1 candidly stated that it was got signed from him
under influence of liquor. It has to be kept in view that the incident occurred
a.s early as on 4th September 1982. Statement of the witness was recorded by
the police during investigation while the so-called affidavit Ex. D-1 is said to
have been sworn by the witness on 3.12.1983. It, therefore, appears that after D
the lapse of about one year and three months the accused seem to have tried
to temper with this witness. The witness was honest enough to admit in the
court at the stage of trial that the so-called affidavit was got signed from him
under influence of liquor. It is also interesting to note .that the stamp paper
of this affidavit was purchased on 3.12.1983 and it was allegedly sworn by the
witness before Notary on 4.12.1983 but the notarial seal and endorsement E
bear the date 10.11.1983. Thus, the affidavit was sworn about 26 days before
the stamp paper was even purchased! To say the least such a document
cannot be touched by a pair of tongs and was rightly discarded by the Trial
Court and the High Court.

It was then contended that accused no. 5.Rikhi Lal and accused no. 8 F
Rajjan are alleged to have armed themselves with iron rods and had bet the
deceased but no contuse lacerations were found on the dead body of the
deceased, that P.W. 2 had deposed that these accused had given blows with
iron rods on the hands of the deceased but the doctor did not find any such
injury by hard blunt substance. Even this contention cannot advance the case
of the appellants for the simple reason that P.W. 1 and P.W. 5 had deposed G
that these accused had given blows on the deceased but had not indicated
that those blow were given only on the hand. The medical evidence in this
connection showed that Dr. Yadav P.W. 6 who performed the post mortem
noted that whole of the back of the deceased had turned black, black soot
came out on rubbing by cotton. There were eight superficial incised wounds
situated between two shoulder blades in upper part of back measuring from H
1040 SUPREME COURT REPORTS [1996) 3 S.C.R.

A 1/2 to 1 c.m. in length, 1/2 c.m. wide and 1/2 c.m. deep. Few pieces of glass
were removed from these wounds. These wounds were having clean cut
margins and were black in colour. Thus when the whole back of the deceased
had turned black because of the bomb injury it was possible that the con-
tusion because of the iron rod injury might nol have been detected. So far as
the injuries on the hand arc concerned, there were incised wounds on the
B palm of the deceased being injury no. 10 and there were incised wounds on
the right forearm and right upper arm being injuries nos. 11 and 12 as noted
by Dr. Yadav, P.W. 6 at the time of post mortem. In view of these incised
wounds it was just possible that the contusions on the arm or palm might not
have been noticed by the doctor. But that would not mean that the eye-
witness account only on that score should be discarded. The High Court had,
c therefore, rightly brushed aside this objection on the part of the appellants.

It was next contended that the eye-witness account does not deserve to
be accepted as these witnesses had a soft corner for P.W. 2 Jndu Tiwari, P.W.
1 and P.W. 5 were known to the first informant, P.W. 2. We fail to appreciate
how merely because they were known to PW.2 they would go out of their way
D to depose falsely against the accused in connection with what they saw on
spot. It was then submitted that these witnesses could not have seen the
incident of assault on the deceased when the narrow lane was having a
winding gredient and the Lal Chabutara from where they have alleged to
have seen the incident was not near the place of the incident. Even this
contention cannot help the appellants for the simple reason that the case of
E the eye-witnesses is that they saw the incident in the lane when they were very
near the deceased and Lal Chabutara by itself was not located near the place
of incident itself and, therefore, it was not found mentioned in the site map.

It was next contended that the accused did not reside in the same area.
They resided in different areas of the town and how they could have collected
F at a time on the spot to belabour the deceased. It is easy to visualise that when
it is the prosecution case that these accused had collected together having
formed an lawful assembly, it was not difficult for them to assemble at spot
where the deceased was found moving and to belabour him in furtherance of
their common object and for that purpose they may as well come from
different parts of the city where they were staying. It was next contended that
G the residents of the locality who might have gathered on spot as the evidences
of police witnesses show were not examined. This contention is not well
sustained. Even if other witnesses are not examined if the eye-witness ac-
count of the three witnesses referred to earlier was found acceptable by b.oth
the courts below and when that eye- witness account has well stood the test
of cross examination, non-examination of other witnesses would pale into
H insignificance. It is also easy to visualise that witnesses who are not con-
GIR!SH YADAVv. STATE OFM.P. [S.B. MAJMUDAR.J.J 1041

cerned with the deceased may like to safely keep away from police proceed- A
in gs or proceedings before the court and only those who feel agb>rieved by the
assault of the accused on the deceased may be·bold enough to come forward
to offer themselves as witnesses. Non-examination of neighbours as wit-
nesses, therefore, cannot be fatal lo the prosecution case as it stands fully
supported hy acceptable eye:witness account as seen earlier.
B
It was next contended that even though the FIR mentioned the name
of witness D.W. 1 Balkrishna Chaube he had not supported the prosecution.
On the contrary he had supported the defence. A look at the evidence of
D.W.1 shows that he was aged 23 and was a student at the time when he gave
his deposition. He himself made it clear in the first line of his deposition that
earlier he was serving with the J.K. Roadways and that .T.K. Roadways C
belonged to P.W.2 Indu Tiwari. It is not in dispute that P.W. 2 was brother of
the deceased Gudda Tiwari. Evidence of this witne-'S shows that by the lime
he deposed on behalf of the defence he was no longer in the service of Jndu
Tiwari. Under these circumstances even if he had not supported the prosecu-
tion Ca$e and appeared to have joined hands with the defence after he left
service of Jn du Tiwari, it could not be said that what he deposed as a defence D
\Vitness was necessarily false. But even accepting his version at the trial for
not supporting the prosecution rules out his alleged eye-witness account
during investigation, that does not mean that when the other eye· witnesses
had seen and deposed to would in any way get whittled down by the absen~e
of further support to be derived by the prosecution from the version of D.W.
1 Balkrishna Chaube. E

These were the only contentions canvassed by the learned senior coun-
sel for the appellants in support of the appeal' and as in our view these
contentions do not shake the core of the prosecution case against the ac-
cused and as the prosecution case against the accu>ed has stood well estab- F
lished on the evidence on record as accepted by both the courts below and
which in our view was rightly accepted and has remained fully reliable, no
case is made out in these appeals for our interference.

Jn the result these appeals fail and are dismissed. The accused were on
bail pending these appeals. Their bails bonds are ordered to be cancelled G
and they are directed to surrender to custody for serving o\It the remaining
·part of their sentence.

T.N.A. Appeals dismissed.