Holding

The FIR was duly lodged at the stated time, the delay in the Special Report does not defeat the prosecution, and the convictions under Section 302 r/w 149 IPC stand.

Summary

The case concerns the murder of Ram Singh by a group of five assailants armed with firearms and lathis. The son of the deceased, PW‑1, witnessed the attack, lodged a First Information Report (FIR) within about one and a half hours, and identified the accused. All three eye‑witnesses (PW‑1, PW‑2, PW‑3) testified, and a post‑mortem report confirmed multiple gunshot injuries. The appellants challenged the conviction on grounds that the FIR was ante‑dated, that the Special Report under Section 157 CrPC was delayed, and that medical opinion contradicted the ocular evidence. The Supreme Court held that the FIR was properly recorded at the stated time, that a delay in dispatching the Special Report does not vitiate the prosecution when a reasonable explanation is given, and that medical opinion is only evidentiary of opinion and does not outweigh consistent eyewitness testimony. Consequently, the convictions under Section 302 read with Section 149 IPC (and related sections) were upheld.

Issues considered

The FIR was alleged to be ante‑dated; was it filed at the time claimed?
Does a delay in dispatching the Special Report under Section 157 CrPC invalidate the prosecution case?
Does the medical officer's opinion on the nature of the injuries contradict the eyewitness accounts and affect the conviction?
Is it necessary for the prosecution to prove an overt act by each accused in an unlawful assembly under Section 149 IPC?

Legislation cited

Code of Criminal Procedure, 1973s. 157(2)
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 379

Subjects

FIRante‑dated FIRSpecial ReportSection 157 CrPCSection 149 IPCunlawful assemblymedical evidence vs ocular evidencemurder convictionappeal dismissed

Judgment

MAHMOOD AND ANR. A
v.
STATEOFU.P.

NOVEMBER 15, 2007
B
[ALTAMAS KABIR AND B. SUDERSHAN REDDY,JJ.)

Penal Code, 1860-s.302 rlw s.149 and ss.147, 148 and 379-
Murderous assault on father ofPWJ with fire-arms and lathis-Five
accused-Prosecution case entirely resting upon direct evidence ofPWs C
1,2 and 3-PW 1 stating details ofthe incident in his F'/R-Conviction
of all accused by Courts below-On appeal by two convicts, held:
Sequence of events clearly indicate that FIR was not ante-timed and
unte-dated as alleged by defence-Nothing unnatural about conduct
ofPW-1-He gave detailed version as to manner ofassault and role D
played by each accused-PW-2 and PW-3 were independent witnesses
and their testimony fully corroborated with testimony of PW-1-
Presence ofPW-1 at the scene ofoffence cannot be considered doubtful
merely because he made no attempt to save his father from being
further assaulted-PW-I may not have mustered courage to risk his E
own life-Response in such situations may differ from person to
person-Common object of unlawful assembly is evident from fact
that some of them were armed with deadly weapons-None of them
were curious onlookers or spectators-Conviction maintained.
Code ofCriminal Procedure, 1973-s.15 7-Despatch ofSpecial F
Report bySHO to local Magistrate- Time limitfor-Held: No universal
rule as to within what time Special Report required to be despatched-
Each case turns on its own facts- Delay in despatch ofFIR by itself
not a circumstance which can throw out prosecution case in its entirety,
particularly when cogent and reasonable explanation for such delay G
is provided.
Evidence- Medical opinion v. Ocular evidence-Held: Ocular
evidence if otherwise acceptable has to be given importance over
51 H
52 SUPREME COURT REPOR1S \2007] \2 S.C.R.

A medical opinion.

According to the prosecution, five persons including the two
Appellants assaulted the father of PWl with guns and lath is while
he was returning to his village on a motorcycle which resulted in his
B death. Both Trial Court and the High Court convicted all the accused
persons including the Appellants. Appellant No.I was convicted
under Section 302 r/w 149 and Section 148 IPC, while Appellant
No.2 was convicted under Section 302 r/w 149 IPC and under
Sections 147 and 379 IPC.

c In appeal to this Court, the conviction of Appellants was
primarily challenged on the ground that the FIR lodged by PW-1
was ante-timed and ante-dated and brought into existence after due
deliberations and considerations with the police.

Dismissing the appeal, the Court
D
HELD: 1.1. FIR in a criminal case and particularly in murder
case is a vital and valuable piece of evidence for the purpose of
appreciating evidence led by the prosecution at the trial. FIR is the
earliest information regarding the circumstances under which the
E crime was committed, including the names of the actual culprits and
the part played by them, the weapons, if any, used as also the names
of the eye-witnesses, if any. Delay in lodging the FIR may result in
embelishment, which is a creature of an after thought. With a view
to determine whether the FIR was lodged at the time it is alleged to
F have been recorded, the Courts generally look for certain external
checks. One of the check is the receipt of the copy of the FIR, called
as a Special Report in a murder case, by the local Magistrate.
[Para 8) [59-E-H; 60-A]

1.2. It is the duty of the Station House Officer to despatch
G Special Report to the Illaqua Magistrate as is required under
Section 157(2), CrPC. But there may be variety of factors and
circumstances for delay in despatch of the FIR and its receipt by
the local Magistrate. [Para 13) [61-E-F]
H 1.3. Delay in despatch of FIR by itself is not a circumstance
MAHMOODv. STATE 53

which can throw out the prosecution's case in its entirety, particularly A
in cases where the prosecution provides cogent and reasonable
explanation for the delay in despatch of the FIR.
[Para 10]

1.4. It is not possible to lay down any universal rule as to within B
what time the special report is required to be despatched by the
Station House officer after recording the FIR. Each case turns on
its own facts. [Para 12) [61-D)

Meharaj Singh v. Stale ofUP. [1994] 5 SCC 188; Anil Rai v. Stale
of Bihar, (2001] 7 SCC 318; Alla China Apparao & Ors. v. State of C
A.P., JT (2002) 8 SC 167; Balaka Singh and Ors. v. State ofPunjab,
AIR (1975) SC (1962); Dalar Singh v. The State ofPunjab, [1975) 4
SCC 272 and Budh Singh & Ors. v. State ofUP. JT (2006) 11SC503,
referred to.
2.1. In the present case, it is in the evidence of P.W.1 that he D
rushed to the police station by a bicycle and lodged written FIR within
1Yi hours of the incident. The distance between the place of
occurrence and the police station is about 9 kms. It is in the evidence
of PWl that he took about 15-20 minutes to prepare his report and
nobody advised him in preparation of the report. Hewentto the police E
station all alone. There is no reason whatsoever to disbelieve this
version given by PWl. There is nothing unnatural and unusual in PWl
stating the details of the incident in his written FIR. The behavioral
pattern and response of individuals in a given situation may differ
from person to person. From a bare reading of the FIR, one does F
not find anything artificial in it. It cannot be said to be a contrived
one brought into existence after due deliberations as contended by
the appellant. (Para 16] (62-C-E]
2.2. The inquest report was prepared on the spot and the body G
was sent for post-mortem examination. The Inquest Report
specifically refers to the lodging of FIR by PW 1 at 4.45 p.m. on
19.02.1977. The mere fact that crime number is not mentioned in the
Inquest Report is of no significance. [Para 17] (62-F-G)
2.3. The sequence of events, namely, that PW 7, the officer-in- H
/
'
54 t
SUPREME COURT REPORTS [2007] 12 S.C.R.

A charge of Police Station, Kothi, reached the scene of offence at 6.00 '
p.m. and pn~pared Inquest Report duly mentioning about lodging of
the FIR by PW 1at4.45 p.m. on 19th February, 1977 followed by
despatch of the dead body to the hospital which reached the hospital
by 9.30 p.m. and the post-mortem examination at 9.30 a.m. on 20th
B February, 1977 in clear and unequivocal terms reveal that the FIR
was lodged at the time it is stated to have been recorded. It cannot
be treated as an ante-timed and ante-dated one.
[Para 18] [62-H; 63-AJ

3.1. Arrest of one Maiku Bhujwa on 19th February, 1977 at 3.00
c p.m. in Crime No.17 under Section 147 etc. and his being lodged in
police station at about 5.30 p.m. by two constables has been used as
a sheet anchor to challenge the time of FIR by saying that ifthe two
constables were summoned by Station Officer, on reaching the place
of occurrence, then in all probability Station Officer reached the
D place of occurrence by 3.00 p.m. even before the FIR was issued.
[Para 19] [63-C-D]

3.2. The High Court adverting to this aspect of the matter
observed that the investigating officer PW7 does not say that he
E arrested Maiku Bhujwa. Moreover, arrest of Maiku was not in
connection with the murder in question, but was in connection with
another case. Most importantly, what could have been the object
behind delaying the time of occurrence ofreaching PW7, on the spot,
has not been made clear. The arrest of Maiku at about 3.00 p.m.
F and his lodging in Hawalat at 5.30 p.m. by two constables, does not
militate against the time of FIR as shown in police papers. It is also
possible that some manipulation was made in the context of the arrest
ofMaiku, to make the case against him more sound.
[Para 20) (63-E-F)
G 4.1. The prosecution story entirely rests upon the direct
evidence of PW Nos. I, 2 and 3. PW-1 is none other than the son of
deceased. He was present in his fields situated nearby the place of '-
occurrence where his father was attacked. PW-1 no doubt was doing
his part time G.N.S. in plantation at Lucknow but that itself would
H not make his presence doubtful at the scene of offence on the fateful
MAHMOODv. STATE 55

day. The defence did not elicit anything in the cross-examination A
casting any doubt about the presence of PW-1 at the scene of
offence. There is nothing unnatural about the conduct of PW-1 at
the scene of occurrence. He gave detailed version as to the manner
of assault and the role played by each of the accused. The names of
PW-2 and PW-3 were also mentioned as eye-witnesses in the First B
Information Report itself. In the circumstances, PW-2 and PW-3
.. cannot be treated as chance witnesses. The Trial Court and as well
as the High Court did not commit any error in relying on the
testimony of PW-2 and PW-3 as eye-witnesses of the occurrence
which fully stands corroborated with the testimony of PW-1. There c
was not even a suggestion to PW-2 and PW-3 that they had
animosity towards the accused persons. They are independent
witnesses and there is no reason for them to speak against the
accused. [Para 22) (64-B-E)
4.2. The contention that the presence of PW-1 at the scene of D
offence was highly doubtful as he made no attempt whatsoever to
save his father from being further assaulted, is without any
substance. It is in the evidence of PW-1 that all the four shots were
fired in quick succession and at that moment PW-1 was at some
distance from the actual place of attack. Notably at least 2 accused E
were armed with fire-arms and one with lathi and they were using
the weapons with all impunity. In such circumstances, PW-1 may not
have mustered his courage to jump into the fray and risk his own
life. It is very difficult to predict or express any opinion as to what
could have been normal or natural conduct of a person in such a F
situation. Response ofindividuals in such situations may differ from
person to person. It is not possible to reject the evidence or doubt
the presence of PW-1 on that ground. (Para 23) (64-F-H; 65-A)

5.1. To a pointed query in cross-examination as regards the G
nature of injury no.1, PW5, the Medical Officer stated that the said
injury was caused by bullet only. The Appellant contended that
weapons in the hands of the accused even according to PW-1 were
of 12 bore guns and not any pistols or revolvers and no bullet injury
could have been caused with the fire-arms that were alleged to be
H
/
56 SUPREME COURT REPORTS [2007] 12 S.C.R. f-

A in the hands of the assailants. There is no substance in this
(
submission. The Medical Officer is not ballistic expert. He was not
expected to answer as to whether injury no. 1 could have been caused
by bullet alone. His opinion to that extent is of no consequence. It is
not possible to disbelieve the evidence of PW-1, 2 and 3 and their
B presence at the scene of occurrence based on the medical evidence.
The High Court rightly observed that the controversy as regards
injury No.1 and whether the same could have been caused by bullet
or pellet to be without any basis. [Para 25] [65-F-H; 66-A-D)
..
5.2. Medical evidence is only an evidence of opinion and it is
C not conclusive and when oral evidence is found to be inconsistent
with the medical opinion, the question ofrelying upon one or the other
would depend upon the facts and circumstances of each case. No
hard and fast rule can be laid down therefor. The ocular evidence if
othenvise is acceptable has to be given importance over medical
D opinion. [Para 25] [66-A-B]

6. The State rightly contended that in case of attack by members
ofun-lawful assembly on the victim in furtherance of common object,
it is not necessary for the prosecution to establish overt-act done
E by each accused. Noticeably, A-1 who had fired two shots, convicted
by the Sessions Court, did not even challenge his conviction in the
High Court. The appellants have been rightly convicted under
Section 302 read with aid of Section 149 ofIPC. PW-5 in his evidence
stated that all the injuries sustained by the deceased were from gun.
F It is further stated that "from the body of deceased one bullet, one
cover 'tikli', two dat and 40 'chare' shots were taken out, put in
packet and scaled ...... " It is also stated in his evidence that injuries
caused on the body of the deceased were sufficient in the normal
course to cause death. This part of the medical evidence if
G juxtaposed with the oral evidence of PW-1, 2 and 3 it becomes
unnecessary to go into the question as to which accused caused what
injury and which was a fatal one. Once a membership of an unlawful
assembly is established, it is not incumbent on the prosecution to
establish any specific overt-act to any of the accused for fastening
of liability with the aid of section 149 of the IPC. Commission of
H
) MAHMOODv. STATE[B.SUDERSHANREDDY,J.] 57
/

overt-act by each member of the unlawful assembly is not necessary. A
The common object of the unlawful assembly of the accused in the
present case is evident from the fact that some of them were armed
with deadly weapons. None of them were curious onlookers or
spectators to the macabre drama that was enacted on 19.2.1977 at
3.30 p.m. at galiyara, village Badipur. [Para 26) (66-E-H; 67-A] B
., CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No .
402 of 2006.
From the final Judgment and Order dated 17.5.2005 of the High
Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Cr!. A. c
No. 367/1980.
Harjinder Singh, R.C. Kohli, Shikha Tyagi and Seema Juneja for the
Appellants.
Shail Kumar Dwivedi, A.AG., A.K. Jha, Prashant Choudhary, D
_,
Vandana Mishra and Manoj Dwi vedi for the Respondent.
The Judgment of the Court was delivered by
B. SUDERSHAN REDDY, J. This is an appeal by special leave
preferred by the appellants - Mahmood and Khaliq. The appellant - E
Mahmood has been convicted for the offence punishable under Section
302 read with Section 149 of IPC and sentenced to imprisonment for
life. He has been also convicted wider Section 148 ofIPC and sentenced
to undergo rigorous imprisonment for 1Yi year. The second appellant has
been convicted for the offence punishable under Section 302 read with F
Section 149 and sentenced to undergo life imprisonment. He has been
further convicted under Section 14 7 of IPC and sentenced to undergo
one year rigorous imprisonment and further convicted under Section 379
ofIPC and sentenced to undergo rigorous imprisonment for a period of
two years. G
)
Put briefly the prosecution case is as follows :
On.19th February, 1977 at about 4.45 p.m. the accused Ram
Samujh and Mahmood - appellant No. I both armed with guns, Khalid -
appellant No.2, Bajrang and one unidentified person armed with lathi H
58
.l
SUPREME COURT REPORTS [2007] 12 S.C.R. \.
'-

A assaulted deceased Ram Singh at Galiyara near the fields of Ram Sewak (
Ahir, while he was returning to his village Badipur on his motorcycle. It
was alleged that the accused Ram Samujh and Mahmood fired four shots,
as a result of which the deceased fell down injured and thereafter Khaliq
snatched the licensed revolver belonging to the deceased and all the five
B fled away from the scene. Ram Singh died on the spot. The incident of
murderous attack was witnessed by Jaikirat Singh (P.W.l) who is none
other than the son of deceased- Ram Singh, Ram Ratan (P.W.2), resident
of village Sujerpur hamlet ofBodipur and Ram Adhar (P.W.3). P.W. l
lodged written First Information Report Ext.Ka. l on the same day at 4.45
C p.m. naming all the accused and the manner in which the murderous attack
on the deceased had taken place. Jagdamba Prasad Dwivedi (P.W.7) the
office in-charge of Police station, Kothi rushed to the scene of offence at
about 6.00 p.m. and found the dead body of Ram Singh and his
motorcycle in galiyara near the fields of Ram Sewak Ahir. The broken
D pieces of the skull of the deceased and broken three teeth were seized
from the place of occurrence. The discharged cartridge and tickli were
also seized from the spot. P.W.7 after preparing the Inquest Report (Ext.
Ka.7) sent the dead body for conducting post-mortem. Dr. R.S. Katiyar
P.W.5 performed the autopsy on the dead body on 20th February, 1977
E at about 9.45 a.m. and found as many as five ante-mortem gun shot
wounds. A cap of cartridge was extricated from the brain of the deceased.
Scalp bones were found fractured. It was found that vital organs like
peritoneum, liver, kidneys were badly ruptured. In the opinion of the
doctor, the cause of death was due to shock and hemorrhage resulting
F from ante-mortem injuries. The investigation of the case was transferred
in the first week of March. 1977 to CBCID. Inspector M.L. Gautam
having completed rest of the investigation submitted chargesheet against
the appellants and other accused.
The accused have denied the charges framed against them and took
G the plea that they have been falsely implicated due to enmity. The accused
were accordingly put on trial. The prosecution in order to establish its case
in altogether exan1ined 8 witnesses and got marked 39 documents as Exts.
Ka. I-39. Amongst the witnesses examined by the prosecution, Jaikirath
Singh, Ram Ratan and Ram Adhar (P.Ws. 1,2 and 3) respectively were
H eye-witnesses to the murderous attack on the deceased. TI1e accused also
/
l MAHMOODv. STATE[B.SUDERSHANREDDY,J.] 59

1 led evidence and examined Virendra Singh DW 1, Laxmi Narain Sinha A
DW 2 and Bindra Charan DW 3.
The learned Sessions Judge upon appreciation of the oral evidence
and material on record found all the accused guilty of the charges framed
against them and sentenced them to various terms of imprisonment. On
appeal the High Court of Allahabad confirmed the conviction and sentences B
imposed by the learned Sessions Judge. The appellants who are accused
No.2 and 3 respectively alone have preferred this appeal by special leave,
challenging their conviction and sentence.
We have elaborately heard the learned senior counsel Shri Harjinder c
Singh and Shri R.C. Kohli as well as Shri Shail Kumar Dwivedi, learned
Additional Advocate General for the State.
The learned senior counsel Shri Harjinder Singh mainly contended
that the FIR lodged by P.W. l Jaikirath Singh was ante-timed and ante-
dated and brought into existence after due deliberations and consultations D
\Vith the police.
According to the learned senior counsel, the special report required
to be sent to the superior authorities and a copy of check FIR to the
Illaqua Magistrate as required under Section 157 of the Code of Criminal
E
Procedure was not sent by the police. That apart arrest ofMaiku Bhujwa
before 3.40 p.m. and his detention in the police station at 5.30 p.m. a.nd
also the fact that some seizure memos, prepared by Investigating Officer
on the same day which do not bear any crime number, are more than
sufficient to doubt the timings of FIR Ext.Ka. I.
F
There is no doubt that FIR in a criminal case and particularly in
murder case is a vital and valuable piece of evidence for the purpose of
appreciating evidence led by the prosecution at the trial. FIR is the earliest
information regarding the circumstances under which the crime was
committed, including the nan1es of the actual culprits and the part played G
by them, the weapons, if any, used as also the names of the eye-witnesses,
_.} if any. Delay in lodging the FIR may result in embelishment, which is a
creature of an after thought. This court in Meharaj Singh v. State of UP. 1
observed that with a view to determine whether the FIR was lodged at
I. [1994] s sec 188. H
60 SUPREME COURT REPORTS [2007] 12 S.C.R.

A the time it is alleged to have been recorded, the courts generally look for
certain external checks. One of the check is the receipt of the copy of
the FIR, called as a Special Report in a murder case, by the local
Magistrate. "If this report is received by the Magistrate late it can give
rise to an inference that the FIR was not lodged at the time it is alleged
B to have been recorded, unless, of course, the prosecution can offer a
satisfactory explanation for the delay in despatching or receipt of the copy
of the FIR by the local Magistrate. The second external check equally
important is sending of copy of the FIR along with the dead body and its
reference in the Inquest Report."
c This court while construing Section 157 of the Code of Criminal
Procedure 'lnAnil Rai v. State ofBihar2 observed that the said provision
is designed to keep the Magistrate informed of the investigation of such
cognizable offence so as to be able to control the investigation and if
necessary to give appropriate direction under Section 159 of the Code.
D "But where the FIR is shown to have actually been recorded without delay
and investigation started on the basis of the FIR, the delay in sending the
copy of the report to the Magistrate cannot ?Y itselfjustify the conclusion
that the investigation was tainted and the prosecution insupportable."
E This court further took the view that the delay contemplated under
Section 157 of the Code for doubting the authenticity of the FIR is not
every delay but only extra-ordinary and unexplained delay. We do not
propose to burden this short judgment of ours with various authoritative
pronouncements on the subject since the law is so well settled that delay
F in despatch of FIR by itself is not a circumstance which can throw out
the prosecution's case in its entirety, particularly in cases where the
prosecution provides cogent and reasonable explanation for the delay in
despatch of the FIR.
The same p1inciple has been reiterated by this court in Alla China
G Apparao & Ors. v. State ofA.P. 3 wherein this court while constrning
the expression "forthwith" in Section(!) of Code of Criminal Procedure
observed that" it is a matter of common experience that there has been
2. r200111 sec 318. •
H 3. JT (2002) 8 SC 167 .

•
} MAHMOODv. STATE[B. SUDERSHANREDDY,J.] 61

/? tremendous rise in the crime resulting into enormous volume of work, but A
increase in the police force has not been made in the same proportion.
In view of the aforesaid factors, the expression "forthwith" within the
meaning of Section 157(1) obviously cannot mean that the prosecution
is required to explain every hour's delay in sending the first information
report to the magistrate, of course, the same has to be sent with reasonable B
despatch, which would obviously mean within a reasonable possible time
in the circumstances prevailing. Therefore, in our view, the first information
report was sent to the magistrate with reasonable promptitude and no
delay at all was caused in forwarding the same to the magistrate. In any
view of the matter, even if magistrate's court was closed by and the first c
information report reached him within six hours from the time of its
lodgment, in view of the increase in work load, we have no hesitation in
saying that even in such a case it cannot be said that there was any delay
at all in forwarding the first information report to the magistrate."
D
It is not possible to lay down any universal rule as to within what
time the special report is required to be despatched by the Station House
officer after recording the FIR. Each case turns on its own facts.
The learned senior counsel invited our attention to the judgments of
this court in Ba/aka Singh and Ors. v. State ofPunjab4 and Datar Singh E
v. The State ofPunjab 5 in which this court highlighted the importance
of despatch of special report to the Illaqua Magistrate. There is no dispute
with the proposition that it is the duty of the Station House Officer to
despatch Special Report to the Illaqua Magistrate as is required under
Section 157(2) of the Code of Criminal Procedure. But there may be F
variety of factors and circumstances for the delay in despatch of the FIR
and its receipt by the local Magistrate. The existence of FIR and its time
may become doubtful in cases where there is no satisfactory and proper
explanation from the investigating agencies.
In Budh Singh & Ors. v. State of UP6, this court while making G
reference of the regulations made by the State ofU.P. in terms of the
j
4. AIR (1975) SC 1962.

5. [19751 4 sec 2n
6. .IT (2006) 11 SC 503 H
62 SUPREME COURT REPORTS [2007] 12 S.C.R.

A U.P. Police Act held the regulations to be statutory in nature. The
regulations provide the procedure as to how and in what fonn the
infonnation relating to commission of a cognizable offence when given to
an officer in-charge of a police station is to be recorded and sent to
superior officers. The regulations are procedural in nature which are meant
B for the guidance of the police. The regulations do not supplant but
supplement the provisions of Code of Criminal Procedure.
We shall now consider the facts of the present case and apply the
law declared by this court in more than one decision.
C It is in the evidence of Jaikirath Singh (P.W.1) that he rushed to the
police station by a bicycle and lodged written FIR Ext.Ka. I v.~thin 1 Yi
hours of the incident. The distance between the place of occurrence and
the police station is about 9 kms. It is in his evidence that he took about
15-20 minutes to prepare his report and nobody advised him in preparation
D of the report. He went to the police station all alone. We do not find any
' reason whatsoever to disbelieve this version given by PW I. There is
nothing unnatural and unusual in PW I stating the details of the incident
in his written FIR Ext.Ka. I. The behavioral pattern and response of
individuals in a given situation may differ from person to person. From a
E bare reading of the FIR Ext.Ka. I we do not find anything artificial in it. It
cannot be said to be a contrived one brought into existence after due
deliberations as contended by the counsel for the appellant.
Be it noted, Jagdamba Prasad Dwivedi, PW 7, the officer in-charge
of police station, Kothi having received the relevant papers in village
F Sethmau, rushed to the place of occurrence and reached there at about
6.00 p.m. where he found the dead body of Ram Singh. 111e inquest report
Ext.Ka.7 was prepared on the spot and the body was sent for post-
mortem examination. The Inquest Report Ext.Ka.7 specifically refers to
the lodging of FIR by PW I at 4.45 p.m. on 19.02.1977. The mere fact
G that crime number is not mentioned in the Inquest Report is of no
significance.
The sequence of events, namely, that Jagdamba Prasad Dwivedi -
PW 7 reached the scene of offence at 6.00 p.m. and prepared Inquest
H Report duly mentioning about lodging of the FIR by PW I at 4.45 p.m.
MAHMOODv. STATE[B.SUDERSHANREDDY,J.] 63

on 19th February, 1977 followed by despatch of the dead body to the A
hospital which reached the hospital by 9.30 p.m. and the post-mortem
examination at 9.30 a.m. on 20th February, 1977 in clear and unequivocal
terms reveal that the FIR was lodged at the time it is stated to have been
recorded. It cannot be treated as an ante-timed and ante-dated one. It is
required to note that 20th February, 1977 being Sunday, the Illaqua B
Magistrate received special report on 21st February, 1977. The special
report was despatched by dak.
Arrest of one Maiku Bhujwa on 19th February, 1977 at 3.00 p.m.
in Crime No.17 under Section 147 etc. and his being lodged in police
station at about 5.30 p.m. by two constables Ram Naresh and Ram Tool C
Misra as shown in Exts. Ka. 3 and 4 has been used as a sheet anchor to
challenge the time of FIR Ext.Ka. I by saying that if the two constables
were summoned by Station Officer, on reaching the place of occurrence,
then in all probability Station Officer reached the place of occurrence by
3.00 p.m. even before the FIR was issued. D
The High Court adverting to this aspect of the matter observed "the
investigating officer Sri Dwivedi does not say that he arrested Maiku
Bhujwa. Moreover, arrest of Maiku was not in connection with the
murder in question, but was in connection with another case. Most E
importantly, what could have been the object behind delaying the time of
occurrence of reaching Sri Dwivedi, on the spot, has not been made clear
by Sri Kidwai. We are of the view that arrest ofMaiku at about 3.00
p.m. and his lodging in Hawalat at 5.30 p.m. by two constables, does
not militate against the time of FIR Ext.Ka-1 as shown in police papers. F
It is also possible that some manipulation was made in the context of the
arrest ofMaiku, to make the case against him more sound."
We do not find any fallacy or error in the reasoning of the High
Court. For the aforesaid reasons we do not find any substance in the
submission made by the learned senior counsel about the ante-time and G
ante-dating of the FIR. The findings in this regard as recorded by Sessions
Judge as well as the High Court are supported by acceptable evidence
and there is no reason to take a different view. It is well settled that this
court normally does not reappreciate the evidence unless it is shown that
the findings are patently enoneous or perverse in nature. However, in H
64 SUPREME COURT REPORTS (2007] 12 S.C.R.

A order to satisfy ourselves we have looked into the evidence of PWs I,2,3
and 7 and we are satisfied that the FIR was lodged on the date and time
as stated by the prosecution.
The prosecution story entirely rests upon the direct evidence of PW
Nos. 1, 2 and 3. PW-I is none other than the son of deceased Ram Singh.
B He was present in his fields situated nearby the place of occurrence where
his father was attacked. Jaikirat (PW-I) no doubt was doing his part time
G.N.S. in plantation at Lucknow but that itself would not make his
presence doubtful at the scene of offence on the fateful day. The defence
did not elicit anything in the cross-examination casting any doubt about
C the presence of PW- I at the scene of offence. There is nothing unnatural
about the conduct of PW-I at the scene of occurrence. He gave detailed
version as to the manner of assault and the role played by each of the
accused. The names of PW-2 and PW-3 were also mentioned as eye-
witnesses in the First Information Report itself. In the circumstances, PW-
D 2 and PW-3 cannot be treated as chance witnesses. The Trial Court and
as well as the High Court did not commit any error in relying on the
testimony of PW-2 and PW-3 as eye-witnesses of the occurrence which
fully stands corroborated with the testimony of PW-1. Be that as it may,
there was not even a suggestion to PW-2 and PW-3 that they had
E animosity towards the accused persons. They are independent witnesses
and there is no reason for them to speak against the accused.
However, it was strenuously urged that the presence of Jaikirat (PW-
1) at the scene of offence is highly doubtful as he made no attempt
whatsoever to save his father from being further assaulted. We find no
F substance in this contention. It is in the evidence of Jaikirat (PW-1) that
all the four shots were fired in quick succession and at that moment PW-
1 was at some distance from the actual place of attack. Be it noted that
at least 2 accused were armed with fire-arms and one with lathi and they
were using the weapons with all impunity. In such circumstances, Jaikirat
G (PW- I) may not have mustered his courage to jump into the fray and
risk his own life. It is very difficult to predict or express any opinion as to
what could have been normal or natural conduct of a person in such a
situation. Response of individuals in such situations may differ from person
to person. It is not possible to reject the evidence or doubt the presence
H
_) MAHMOODv. STATElB.SUDERSHANREDDY,J.] 65

)
of PW-I on that ground. A

The post-mortem examination of the deceased Ram Singh was
perfonned by Dr. R.S. Katiyar (PW-5). The post-mortem report is exhibit
Ka-4. The Medical Officer found the following ante-mortem injuries on
the person of the deceased:
B
I. A gun shot wound (wound of entry) 3 cm x I cm. Over left
I
side of face just above the left side of the lower lip.
Wound of Ext. 3 cm x 2 cm. Over the right parietal bone, 7
cm. Above the right ear.
c
2. A gun shot wound 2.5 cm x 1 cm. Over the right side of face
below max. prominence.
~
.) . Multiple gun shot wounds in an area of 13 cm x 11 cm. Over
the right side of back below the inferior angle of scapula.
D
4. A gun shot wound (wound of entry) 2 cm x 2 cm over the
,, right side of the back 2 cm. Right to 12th thoracic vertebra.
5. Multiple gun shot wounds in an area of9 cm. X 4 cm. Over
the back and middle of right arm.
E
Relying on his evidence the learned counsel for the appellant
contended that the oral account as given by PW-1, 2 and 3 is at variance
with medical evidence available on record. It is contended that while
according to the eye-witnesses all the four shots were fired from the gun,
from right side of the victim, wound no.I (wound of entry) was on the
left side of the face and caused by bullet and this evidence belies the claim F
of eye witnesses that they saw the assault on Ram Singh. It is true that to
a pointed query in cross-examination as regards the nature of injury
no. 1, the Medical Officer stated that the said injury was caused by bullet
only. The learned counsel contended that weapons in the hands of the
accused even according to PW-1 were of 12 bore guns and not any G
/
pistols or revolvers. No bullet injury could have been caused with the
fire-arms that were alleged to be in the hands of the assailants. We find
no substance in this submission. The Medical Officer is not ballistic expert.
He was not expected to answer as to whether injury no. 1 could have
been caused by bullet alone. His opinion to that extent is of no H
66 SUPREME COURT REPORTS [2007] 12 S.C.R.

(
A consequence. It is well settled that medical evidence is only 811 evidence
of opinion and it is not conclusive and when oral evidence is found to be
inconsistent with the medical opinion, the question of relying upon one or
the other would depend upon the facts and circumstances of each case.
No hard and fast rule can be laid down therefor. The ocular evidence if
B otherwise is acceptable has to be given importance over medical opinion.
However, where the medical evidence totally improbabilises the ocular
version the same can be taken to be a factor to affect credibility of the
prosecution version. We are not inclined to place any reliance upon the
opinion of the Medical Officer that the injury no. I could have been caused
C only with bullet since he is not a ballistic expert. This part of the evidence
of the Medical Officer cannot be considered to be the opinion of an expert
and the same has no evidentiary value. It is not possible to jisbelieve the
evidence of PW-1, 2 and 3 and their presence at the scene of occurrence
based on the medical evidence. The High Court rightly ob:;erved that the
D controversy as regards injury No. 1 and whether the same could have
been caused by bullet or pellet to be without any basis.
The learned counsel for the State rightly contended that in case of
attack by members ofun-lawful assembly on the victim in furtherance of
common object, it is not necessary for the prosecution to ~stablish overt-
E act done by each accused. It is required to be noticed that Ram Smujh
(A-I) who had fired two shots, convicted by the Session> Court, did not
even challenge his conviction in the High Court. The appellants have been
rightly convicted under Section 302 read with aid ofSec':ion 149 ofIPC.
PW-5 in his evidence stated that all the injuries sustained by the deceased
F were from gun. It is further stated that "from the body of deceased one
bullet, one cover 'tikli', two <lat and 40 'chare' shots were taken out,
put in packet and sealed ........"It is also stated in his evidence that injuries
caused on the body of the deceased were sufficient in the normal course
to cause death. This part of the medical evidence ifjuxtaposed witl1 the
G oral evidence of PW-1, 2 and 3 it becomes unnecessary to go into the
question as to which accused caused what injury and which was a fatal
one. Once a membership of an unlawful assembly is established, it is not
incumbent on the prosecution to establish any specifi~ overt-act to any
of the accused for fastening of liability with the aid of section 149 of the
H IPC. Commission of overt-act by each member of the unlawful assembly
' (

MAHMOODv. STATE[B.SUDERSHANREDDY,J.] 67

is not necessary. The common object of the unlawful assembly of the A
accused in the present case is evident from the fact that some of them
were armed with deadly weapons. None of them were curious onlookers
or spectators to the macabre drama that was enacted on 19.2.1977 at
3.30 p.m. at galiyara, village Badipur.
B
For the aforesaid reasons, we find no merit in this appeal. The appeal
is accordingly dismissed.
B.B.B. Appeal dismissed.