SUDARSHAN AND ANR.versusSTATE OF MAHARASHTRA

                    [2014] 6 S.C.R. 437


                  SUDARSHAN AND ANR.                              A
                              v.
                STATE OF MAHARASHTRA
            (Criminal Appeal No. 1118 of 2014)
                        MAY 23, 2014
                                                                  B
       [DR. B. S. CHAUHAN AND A. K. SIKRI, JJ.]

     Penal Code, 1860 - s. 302 rw s. 34 - Murder and
common intention - Complainant, his friends and deceased
persons gathered at a place to celebrate - Two appellants         C·
along with others went to that place - Two appellants armed
with weapons assaulted the deceased persons which resulted
in their death - Appellants were known to the complainant -
FIR lodged - Conviction u/s:302!34, by courts be.fow -
Correctness of - Held: FIR appears to be ante-timed which         D
gets strengthened on the glaring and intriguing events taking
place thereafter - Facts sufficient to hold that appellants may
have been roped in falsely at a later point of time - Courts
below did not appreciate the circumstances which go to the
root of the matter and raise sufficient doubt about the           E
involvements of the appellants - Thus, _appellants entitled to
benefit of doubt - Case against them not proved beyond
reasonable doubt so as to uphold their conviction -
Conviction of the appellants set aside.
                                                                  F
     The complainant along with his friends went to place
'J', holiday resort to celebrate his new acquisition, a
motorcycle. They reached around afternoon anct"started
preparing meals. The two deceased persons reached
later and started playing cards at some distance.                 G
Thereafter, 8-10 persons reached the spot. The
appellants, armed with weapons assaulted the deceased
persons, resulting in their death. Thereafter, the
appellants and others fled away. The complainant threw
                           437                                    H
    438       SUPREME COURT REPORTS           [2014] 6 S.C.R.


A away all the eating material and rushed to the brother of
  'B', who attended the party. Subsequently, the
  complainant and his friends went to the house of
  advocate 'R' at place 'C' and on his advise the FIR was
  registered against the appellants and others, at place 'C'
B police station. The appellants were known to the
  complainant. Since the place of incident was not within
  the jurisdiction of 'C' police station, intimation was given
  at place 'B' police station and FIR was registered therein.
  The appellants were convicted and sentenced u/s. 302 rw
C s. 34 IPC by the courts below. Others-A3 to A13 were
  acquitted of all the charges. Hence, the instant appeal.

          Allowing the appeal, the Court

         HELD: 1.1. There is suffieient merit in the submission
[). that the FIR itself was ante-timed with sole intention to
    rope in the appellants; that the conduct of the
    complainant to go to the house of Advocate 'R' at place
    'C' after the incident, instead of heading to the Police
E Station to report the incident, depicted an abnormal
    behaviour which was enough to ring alarm on the
    genuineness of prosecution story. It was pointed out that
    on the purported advice of the said Advocate, FIR was
    lodged with Police Station 'C', which was not the
F concerned Police Station within whose jurisdiction the
    incident had occurred. The concerned Police Station was
    at place 'B' Police Station; that no doubt, the Police
    Officer who registered the FIR at place 'C' called the
    concerned officer from place 'B' Police Station, who took
G over the matter and conducted the inquest proceedings,
    the entire sequence was shrouded in mystery and the FIR
    was ante-timed, which could be inferred from other
    various circumstances. These facts are sufficient to hold
    that the appellants may have been roped in falsely at a
H
       SUDARSHAN AND ANR. v. STATE OF                 439
               MAHARASHTRA
later point of time, which entitles them to be given the     A
benefit of doubt. (Paras 8, 9] (446-H; 447-A-F]

     1.2. No doubt, different persons may react differently
to the same situation. However, at the same time, it
appears very improbable that when there were as many B
as 15 to 20 persons, namely, the complainant and his
friends, none of them even thought of going to the Police
Station to report the matter, which is odd and out of
ordinary behaviour in such cases. Instead, they chose to _
go to an Advocate, who was staying at a distance of 15 c
kms. The persons who were allegedly very scared would
not take the risk of going a distance of 15 kms. rather than
approaching the nearby Police Station within the
jurisdiction of the area where the incident had taken
plac.e. The High Court has downplayed this unusual and D
abnormal conducts in a cavaliar manner (Para 12, 13]
[448-E; 449-E-G]
    1.3. Strangely, in the process of defending the said
conduct of the complainant and his friends, the High
                                                             E
Court became presumptuous as it itself gave an
imaginary story that there was a possibility that these
persons had consumed liquor and the material thrown by
them included liquor as well. It was not even the case of
the prosecution, probable or otherwise. [Para 14] (449-G-
                                                             F
H; 450-A]

     1.4. Not reporting to the Police and going
straightaway to an Advocate could have been because
of the reason that all these persons were very scared, had
it been a standalone fact. However, when this fact is        G
examined in conjunction with other circumstances,
approaching an Advocate instead of going to the Police
Station to report the matter, was not that innocent a step
as the prosecution has made to believe. [Para 15] (450-
B-C]                                                         H
    440      SUPREME COURT REPORTS            [2014] 6 S.C.R.


A        1.5. Even after meeting their Advocate and his advise
    that the matter be reported to the police, these persons
    didn't come back to place '8' Police Station, which was
    the proper Police Station for this purpose. Instead, the
    FIR was lodged in place 'C' Police Station. Things do not
B   end here. 'U'-Sub-lnspector was at place 'C' Police
    Station, who had recorded the FIR.· He appeared as PW-
    12 during trial. The FIR which was lodged with him is
    proved as an Exhibit. Column 15 of the FIR pertains to
    'date and time of dispatch to the. Co(Jrt'~ This column is
C   left blank, which means that no date and time of the
    dispatch/delivery of this FIR to the concerned Court is
    mentioned. In the cross-examination, PW-12 was
    specifically asked about the requirement of submitting a
    copy of the FIR to the concerned Magistrate within 24
D   hours. He replied in the affirmative insofar as this need
    is concerned. However, at the same time, he was candid
    in admitting that he was unable to say as to by whom
    and when the copy of FIR was sent to the Magistrate. A
    specific suggestion was put to him that the copy of the
E   FIR was not sent to the concerned Magistrate. Though
    he denied, but thereafter, no attempt was made to prove
    as to when and how the copy was sent. The necessity
    of sending the copy of the FIR to the concerned
    Magistrate hardly needs to be emphasized. The primary
F   purpose is to ensure that truthful version is recorded in
    the FIR and there is no manipulation or interpolation
    therein afterwards. For this reason, this statutory
    requirement is provided under Section 157 of the Code
    of Criminal Procedure, 1973. [Para 16] [450-D-H; 451-A]
G
      1.6. It was a glaring omission on the part of the
  prosecution which lends credence to the plea of the
  defence ~bout ante-timing the FIR. It gets strengthened
  on finding more glaring and intriguing events taking
H place thereafter. D, who was attached to 'C' Police
         SUDARSHAN AND ANR. v. STATE OF                   441
                 MAHARASHTRA

  Station, sitting as PSO on that day, was produced as PW-       A
  21. He stated in his deposition that he was informed by
  PSl-S about the incident and, accordingly, he recorded
  the report as per the say of the complainant. After
  recording the statement, he reached the spot of incident
  and by that time PSO of the place 'B' Police Station had       B
  also reached the spot. Curiously, this witness did not
  even disclose the names of the accused persons to P.I.
  'K', who had come from place 'B' Police Station. Thus, it
  becomes apparent that though as per the FIR, names of
  the assailants, i.e. the appellants, were stated to PW-12      C
  or PW-21, but PW-21· did not disclose these names to PW-
  22, who is the Investigating Officer. In the inquest report
  prepared by PW-22, no names are mentioned even when
  the complainant and two or three friends of his were
  present on the spot. All these factors throw suspicion         D
  about the recording of the FIR at the time stipulated in the
 "Fl.R. There are circumstances galore which indicate that
  the FIR was ante-timed and the names of these two
· appellants were incorporated later but showing them to
  be at the time when the statement was made by the              E
  complainant on the basis of which the FIR was
  registered. [Para 17, 18, 20] [451-B-E; 452-G-H; 453-A-B]

      1.7. There were a number of persons, almost 100. The
 Police did not make any effort to join independent              F
 persons in the investigation. The entry to place 'J' which
 is a jungle area, is by tickets. However, no efforts were
 made to take the connecting evidence of this nature.
 [Para 21] [453-C]
                                                                 G
     1.8. Neither the trial court nor the High Court
 appreciated the said circumstances which go to the root
 of the matter and raise sufficient doubt about the
 involvements of the appellants in the instant case.
 Ther~fore, the appellants are entitled to the benefit of        H
    442       SUPREME COURT REPORTS              [2014] 6 S.C.R.


A doubt and the case against them is not proved beyond
  reasonable doubt so as to uphold their conviction into a
  serious charge of murder under Se~tion 302 read with
  Section 34 of IPC. The conviction of the appellant under
  the said provisions is set aside. [Para 22, 23) [454-G-H;
B 455-A-B]

        Meharaj Singh v. State of Uttar Pradesh (1994) 5 SCC
    188 - relied on.

                         Case Law Reference:
c
          (1994) 5 sec 188        Relied on             Para 22

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1118 of 2014.
D       From the Judgment and Order dated 27.07.2011 of the
    High Court of Judicature at Bombay Nagpur Bench, Nagpur in
    Criminal Appeal No. 1 of 2006.

      Sushil Kumar, Vinay Arora, Aditya Kumar, Sudarshan
E Singh Rawat for the Appellants.

          Anirudhha P. Mayee for the Respondent.

          The Judgment of the Court was delivered by

F      A.K. SIKRI, J. 1. The two appellants herein are aggrieved
  by the judgment of the High Court pronounced on July 27, 2011,
  whereby their conviction under Section 302 read with Section
  34 of the Indian Penal Code, 1860 (for short, 'IPC'), as recorded
  by the Magistrate, has been upheld and their sentence to
G undergo life imprisonment with fine is also confirmed thereby.

      2. The prosecution case, on the basis of which the
  appellants along with eleven other persons were charged for
  committing offences of different nature, is stated by the High
H Court in para 5 of the impugned judgment. There is no dispute
         SUDARSHAN AND ANR. v. STATE OF                      443
           MAHARASHTRA [AK. SIKRI, J.]
 that the prosecution version, as recorded therein, suffers from     A
 any inaccuracies. Therefore, in order to have a glimpse of the
 prosecution case, we would take the facts as narrated in para
 5 of the impugned judgment:

       3. The complainant, appellants and other accused persons      s
  are residents of Chandrapur. Complainant - Manoj Bhaskar
  Ugade knew both the appellants. The incident had occurred on
  November 17, 2002. The complainant had bought new
  motorcycle and with a view to celebrate the occasion, he had
  arranged a party at Junona in Ballarshah Tehsil. Junona is a       c
  forest place and it appears that there is some Holiday Resort
  also. It is a picnic place which is normally crowded to some
  extent on holidays. The said party arranged by Manoj was
  attended by his friends, including the two deceased, Vinod
  Channewar and Chandu Prakash Dongre. In addition to the            D
  above deceased, the said party was attended by Golu
  Ramteke, Jivan Mahadole, Anil Tajne, Sahilesh Gujarkar, Dilip
  Pradhan, Shankar Thakre, Vinod Shende, Santosh Kashti and
  Bahadur Hajare. The food was to be prepared on the spot.
  Therefore, raw material was taken to the spot of party in a        E
  Maruti van. The complainant and his friends reached the spot
  at about 12.00 noon and they started preparing meals. Since
  meals were not ready, the deceased had gone little away from
  the place of party to buy Gutka. They returned to the spot at
  about 12.30 p.m. The meals were still not ready. They,             F
  therefore, started playing cards at some distance from the place
  where the complainant was preparing roties. While the
  complainant was busy in his work, suddenly 8 to 10 persons
  reached the spot. The deceased, Vinod and Chandu, started
  running after witnessing them. However, the said 8 to 10           G
  persons followed the deceased. The two appellants before us
· were holding swords. It is alleged that both of them started
  assaulting deceased Vinod with the swords in their hands, while
  rest of the persons followed Chandu. The complainant could not
                                                                     H
    444       SUPREME COURT REPORTS                 [2014] 6 S.C.R.


A   see as to what happened to Chandu. However, after the culprits
    fled away, it was seen by the complainant that there were
    severe injuries on the head of deceased Vinod. His brain
    material had come out. Obviously he was dead. Deceased
    Chandu was found at some distance in the same condition. The
B   complainant, therefore, threw away all the eating material and
    immediately rushed to the brother of Bahadur Hajare. It may be
    stated that Bahadur Hajare was one of the persons who had
    attended the party. Thereafter, the complainant along with his
    friends had gone to the house of ~~voqate R~gari at
                                                           1
C   Chandrapur to take his advice as to whaHhey should do further
    in the matter. Advocate Rangari advised him to report the
    matter to the police. The matter was reported to City Police
    Station, Chandrapur. They had registered an offence vide
    Crime No. 00/02 under Section 302 read with Section 34 of
D   IPC and Section 4 read with Section 25 of the Arms Act
    against the appellants and others. Since the place of incident
    was not within the jurisdiction of City Police Station, intimation
    was given to Ballarshah Police Station regarding the incident.
    Upon receiving the intimation, Ballarshah Police Station
E   registered FIR No. 220 of 2002 and investigation was taken
    up by P.I. Mr. Kshirsagar, who visited the spot. Two of the
    witnesses were called, who had indentified the bodies lying on
    the spot. Inquest was done on the spot. Both the bodies were
    referred to General Hospital, Chandrapur for post-mortem
F   examination. Rest of the panchnama was drawn on the next
    day as it was dark. During the course of investigation, it was
    revealed that one motorcycle was used by the appellants, which
    belonged to one Amarpur. The said motorcycle was also seized.
    Other accused were arrested from time to time during the
G   course of investigation. Weapons and clothes were also seized
    and after completion of investigation chargesheet was filed in
    the court of Magistrate. It appears that during the course of
    investigation, provisions of the Maharashtra Control of
    Organised Crime Act, 1999 (hereinafter referred to as 'MCOC
H   Act') were also applied and further investigation was carried
        SUDARSHAN AND ANR. v. STATE OF                    445
          MAHARASHTRA [A.K. SIKRI, J.]
out by the Deputy Superintendent of Police, Mr. Sardeshpande.   A
However, since Inspector General of Police rejected t,he
proposal for prosecuting the appellants and others in MCOC
Act, the accused were tried by the ad-hoc Additional Sessions
Judge at Char:idrapur.
                                                                B
      4. The appellants herein were the main accused persons
and described as Accused No.1 and Accused No.2 (A-1 and
A-2). In fact, A-1 to A-8 ·were charged under Section 302 as
well as Sections 147 and 148 read with Section 149 of the IPC.
A-9 to A-11 were charged under Section 212 .of the IPC, c
whereas A-12 and A-13 were charged only under Section 120-
B of the IP!:;. Prosecution examined 22 witnesses in support
of its case. There was no dispute about the cause of death of
the two persons, namely, Vined Channewar and Chandu
Prakash Dongre. As per the post-mortem report, the two had . D
suffered multiple head injuries and these injuries led to their
death.

      5. The trial court, on the basis of the testimonies of the
prosecution witnesses as well as documents produced before E
it, found A-1 and A-2 (the appellants herein) guilty of the offence
punishable under Section 302 read with Section 34 of IPC. They
were acquitted of charges under Sections 147, 148 and 149
of IPC, A-3 to A-8 were held not guilty. Likewise, it was held
that no case under Section 212 of the I PC was made out F
against A-9 to A-11. The trial court also discarded the theory
of conspiracy allegedly hatched by the accused persons to
murder the deceased persons, thereby acquitting A-12 and A-
13 of the charge under Section 120-B of IPC (strangely even
it was alleged that all the accused persons had conspired G
together to kill the deceased persons, the charge under this
Section was framed only qua A-12 and A-13). Since only the
appellants were held guilty of murdering the deceased with
common intention and given life imprisonment by the trial court,
                                                                 H
    446       SUPREME COURT REPORTS                [2014] 6 S.C.R.


A   these two appellants challenged the said verdict by
    approaching the High Court of Judicature, at Bombay (Nagpur
    Bench).

         6. The High Court, on re-appreciation of evidence, held
B   that it could not be proved as to who killed ChaQdu Prakash :
    Dongre. However, the finding of the Sessions Judge holding
    the appellants guilty of murdering Vinod Channewar is affirmed.
    Thus, even when these appellants are acquitted of the charge
    of murdering Chandu Prakash Dongre, the final result remains
c   the same, i.e. Dismissal of their appeal on finding them guilty
    of committing the murder of Vinod Channewar.

          This is how the two appellants are before this Court.

       7. Mr. Sushi! Kumar, learned senior counsel appearing for
D the appellants, submitted that the trial court, or for that matter
  the High Court, could not see through and appreciate the
  glaring infirmities and loopholes in the prosecution case. He
  submitted that the foundational facts injected by the prosecution
  provide unhelpful ambiguity which manifest hollown·ess of the
E prosecution case and a vivid look thereof was sufficient to ·
  discard the prosecution story implicating the appellants in the
  entire episode. He pointed out those aspects which we shall
  refer hereinafter. He also pointed out that a reading of the
  judgment of the High Court would demonstrate that the High
F Court has indulged into the guesswork and became too
  presumptuous in drawing certain inferences, without any
  material on record. He also submitted that most of the
  arguments raised by the appellants before the High Court are
  either glossed over or dealt with casually and/or in a perfunctory
G manner, which is against all cannons of criminal jurisprudence
  that mandates guilt to be proved beyond reasonable doubt.

         8. Neat submission of Mr. Sushi! Kumar, in this behalf, was
    that the FIR itself was ante-timed with sole intention to rope in
H
        SUDARSHAN AND ANR. v. STATE OF                      447
          MAHARASHTRA [A.K. SIKRI, J.]
the appellants. He also argued that the conduct of the              A
complainant to go to the house of Advocate Rangari at
Chandrapur after the incident, instead of heading to the Police
Station to report the incident, depicted an abnormal behaviour
which was enough to ring alarm on the genuineness of
prosecution story. However, it has been brushed aside by the        B
High Court. Mr. Kumar had also pointed out that on the
purported advice of the said Advocate, FIR was lodged with
P.olice Station Chandrapur, which was not the concerned Police
Station within whose jurisdiction the incident had occurred. The
concerned Police Station was Ballarshah Police Station. He          C
submitted that no doubt, the Police Officer, who registered the
FIR at Chandrapur called the concerned officer from Ballarshah
Police Station, who took over the matter and conducted the
inquest proceedings, the entire sequence was Shrouded in
mystery and the FIR was ante-timed, which could be inferred         D
from other various circumstances.

      9. We find sufficient merit in the aforesaid submissions of
Mr. Sushi! Kumar and are convinced about the unnatural
behaviour of th~ complainant in approaching Advocate Rangari        E
and lodging the FIR at Chandrapur and also convinced that FIR
appears to be ante-timed. As discussed in detail hereinafter,
according to us, these facts are sufficient to hold that the
appellants may have been roped in falsely at a later point of
tim·e, which entitles them to be given the benefit of doubt.        F

     10. We now proceed to discuss these circumstances and
our reasons hereinafter.

     11. As noticed, while stating the case of the prosecution,
the complainant, along with his friends, had gone to Junona in      G
Ballarshah Tehsil, where a party was arranged by him to
celebrate his new acquisition in the form of a motorcycle. There
were many friends of his along with him. They had decided to
prepare the food on the spot, for which they took raw material
                                                                    H
        448        SUPREME COURT REPORTS                  [2014] 6 S.C.R.


    A with them in a Maruti van. Though the complainant and his
      friends had reached that place at about 12.00 noon and had
      started preparing meals, as far as the two deceased persons
      are concerned, they had reached later. Awaiting the preparation
      of meals, they had started playing cards at some distance. It
    B is at that time, 8 to 10 persons reached the spot. As per the
      prosecution, the two appellants were holding swords and
      chased Vinod Channewar and started assaulting him, while the
      other accused had followed Chandu Prakash Dongre. After the
      incident, as per the prosecution, the complainant threw away
    C all the eating materials and immediately rushed to the brother
      of Bahadur Hajare, who had also attended the party. Thereafter,
      the complainant and his friends went to the house of Advocate
      Rangari at Chandrapur.

    o      12. During the arguments, we were informed that
      Chandrapur, where Rangari lived and these persons went, is
      about 15 kms. It appears to be a very strange behaviour on the
      part of the complainant and so many of his friends who were
      with him to go to an Advocate, that too 15 kms. away, rather
    E than approaching the Police Station to report the matter. The
      High Court has downplayed this unusual and abnormal
      conducts in a cavaliar manner by observing that the
      complainant and his friends were so scared that they had no
      sense of stopping at the Police Station and, therefore, they had
    F straightaway gone to the house of the said Advocate. This
      aspect is dealt with by the High Court in the following manner:

              "21 ... However, it may be stated here that it is possible that
              some other persons could have behaved in a different
              manner than P.W. Nos. 1 and 3 have behaved. Reaction
    G
              of witnesses to a particular incident is not necessarily
              similar. It depends upon the nature of fhe incident, place
              of incident and the nature of the witness himself. In the
              present case it appears that, in all probabilities, P .W. 1
              and his friends had carried some liquor also with them.
    H



•
        SUDARSHAN AND ANR. v. STATE OF                       449
          MAHARASHTRA [A.K. SIKRI, J.]
    Though there is no evidence to that effect, the possibility      A
    of their carrying liquor could not be ruled out, considering
    the fact that on most of such occasions, liquor has become
    an integral part of the celebrations. This view is taken by
    us because P.W~ 1 had thrown away all the material before
    going to the Police. He had not given description of the         B
    material thrown away by him. Therefore, possibility of they
    carrying liquor also could not be ruled out. The learned
    counsel for the appellants wanted to capitalize this
    situation also. We, however, are not inclined to accept the
    argument that P.W. 1 and others had taken drinks to a large      C
    extent and there was a quarrel between members of the
    same group. Possibility of P.W. 1 and others drinking liquor
    is not ruled out. At the same time, it can be said that since
    they might have consumed liquor they were afraid of
    approaching the police immediately. This does not make           D
    any plus point in favour of the appellants."             ·

      13. No doubt, different persons may react differently to the
same situation. However, at the same time, as mentioned
above, it appears very improbable that when there were as            E
many as 15 to 20 persons, namely, the complainant and his
friends, none of them even thought of going to the Police Station
to report the matter, which is odd and out of ordinary behaviour
in such cases. Instead, they chose to go to an Advocate, who
was staying at a distance of 15 kms. The persons who were            F
allegedly very scared would not take the risk of going a distance
of 15 kms. rather than approaching the nearby Police Station
within the jurisdiction of the area where the incident had taken
place.
                                                                     G
     14. Strangely, in the process of defending the said conduct
of the complainant and his friends, the High Court became
presumptuous as it itself gave an imaginary story that there was
a possibility that these persons had consumed liquor and the
                                                                     H
              SUPREME COURT REPORTS                (2014]. 6 S.C.R..


 A   material thrown by them included liquor as well. It was not even
     the case of the prosecution, probable or otherwise.

          15. We may have agreed with the High Court that not
     reporting to the Police and going straightaway to an Advocate
 8   could have been because.of the reason that all these persons
     were very scared, had it been a standalone fact. However,
     when this fact is examined in conjunction with other
     circumstances, which we narrate hereinafter, we find that
     approaching an Advocate instead of going to the Police Station
 c   to report the matter, was not that innocent a step as the
     prosecution has made us to believe.

          16. Even after meeting their Advocate and his advise that
    the matter be reported to the police, these persons didn't come
    back to Ballarshah Police Station, which was the proper Police 1
 0
     Station for this purpose. Instead, the FIR was lodged in
    Chandrapur Police Station. Things do not end here. Mr. Uniesh,
     Sub-Inspector, was at 'Chandrapur Police ~tation, who had
     recorded the FIR. He has appeared as PW-12 during trial. The.
 E FIR which was lodged with him is proved as Exhibit-213.
    Column 15 of the FIR pertains to 'date and time of dispatch to
    the Court'. This column is left blank, which means that no date
     and time of the dispatch/defivery of this FIR to the concerned
   ,Court is mentioned. In the cross-examination, PW-12 was
 F specifically asked about the requirement of submitting a copy
     of the FIR to the concerned Magistrate within 24 hours. He,
     replied in the affirmative insofar as this need is concerned. :
     However, at the same time, he was candid in admitting that he ·
    was unable to say as to by whom and when the copy of Exhibit-
 G ··213 was sent to the Magistrate, A specific suggestion was put
    to him that the copy of the FIR was not sent to the concerned
     Magistrate. Though he denied, but thereafter no attempt was
     made to prov~ as to when and how the copy was sent. The
     necessity of sending the copy of the FIR to the concerned
.H
         SUDARSHAN AND ANR. v. STATE OF                          451
           MAHARASHTRA [A.K. SIKRI, J.]
Magistrate hardly needs to be emphasized. The primary                    A
purpose is to ensure that truthful version is rec~rded in the FIR
and there is no manipulation or interpolation therein afterwards.
For this reason, this statutory requirement is provided under
Section 157 of the Code of Criminal Procedure, 1973.
                                                                         B
     17. We, thus, feel that it was a glaring omission on the part
of the prosecution which lends credence to the plea of the
defence about ante-timing the FIR. It gets strengthened on
finding more glaring and intriguing events taking place
thereafter, which are described hereinafter.                             c
     18. Mr. Dilip, who was attached to the Chandrapur Police
Station, sitting as PSO on that day, was produced as PW-21.
He stated in his deposition that he was informed by PSI
Sayyad about the incident and, accordingly, he recorded the
                                                                         0
report as per the say of the complainant; which he proved as
Exhibit-114. After recording the statement, he reached the spot
of incident and by that time PSO of the Ballarshah Police
Station had also reached the spot. Curiously, this witness did
not even disclose the names of the accused persons to P.l.
                                                                         E
Kshirsagar, who had come from Ballarshah Police Station. This
is what he said in the cross-examination:

     "2) ... I had not disclosed names of accused persons to P.l.
     Kshirsagar on the spot. I can not assign any reason as to
     why I had not disclosed the names of accused to P.l.                F
     Kshirsagar though I was knowning the names of accused.
     lt is not true to say that at that time I was not knowing the
     names of the assailants and therefore l have not given that
     information to P. l. Kshirsagar. It is not true to say that the
     portion in front of entry No. 38 and 39 of the station diary        G
     was kept blank as per the direction of Superintendent of
     Police. It is not true to say that thereafter on the next day I
     .have filled these entries. It is not true to say that thereafter
    :I have prepared forged report. It is not true to say that l have
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    452        SUPREME COURT REPORTS                  [2014] 6 S.C.R.


A         not sent the report and printed F.l.R. to P.S. Ballarpur on
          the day of incident at about 4.45 p.m. on the day of
          incident. .. "

       19. This is even accepted by the Investigating Officer Mr.
B Jiwan from Police Station Ballarshah, who had reached the
  spot, in the following words:

          "19 ... P. I. Tidke had been to the spot of incident when I was
          drawing inquest panchanama. Jiwan Mahadole and
          Bahadur Hazare had been to the spot before arrival of P.I.
c         Tidke. I can not say as to whether Manoj Ughade had also
          reached the spot or not. It did not happen that Manoj
          Ughade had identified one dead body. It is true to say that
          P. I. Tidke had not disclosed me the names of the
          assailants. It is true to say that the witnesses Jiwan
D
          Mahadole and Bahadur Hazare had not disclosed me the
          names of assailants on the spot. It is not true to say tha
          Manoj Ughade was also present on the spot but he had
          not disclosed me the names of the assailants. Article C
          and D about the report to be forwarded to the Civil Surgeon
E
          with dead bodies sent for post-mortem examination now
          shown to me are bear my signature. Their contents are
          correct. They are Exhs. 278 and 279. I did not received
          the case diary on that day up to 8.00 p.m. I was on the spot
          up to aboot 9.30 p.m. Thereafter I visited Chandrapur City
F
          P.S. It is true to say that on the day of incident I was -not
          knowing the names of ass-ailants till 8.00 p.m. and
          therefort:: in the document prepared by the time I have
          mentioned the names of assailants as unknown persons."
G       20. It, thus, becomes apparent from the aforesaid that
    though as per the FIR, names of the assailants, i.e. the
    appellants herein, were stated to PW-12 or PW-21, but PW-
    21 did not disclose these names to PW-22, who is the
    Investigating Officer. In the inquest report prepared by PW-22,
H
         SupARSHAN AND ANR. v. STATE OF                       453
            MAHARASHTRA [A.K; SIKRI, J.]
no nam~s are mentioned even when the complainant and two              A
or three friends of his were present on the spot. All these factors
throw suspicion about the recording of the FIR at the time
stipulated in the FIR. There are circumstances galore which
indicate that the FIR was ante-timed and the names of these
two appellants were incorporated later but showing them to be         B
at the time when the statemeAt was made by the complaihant
on the basis of which the FIR was registered.

     21. At this juncture, we would like to point out that there
were a number of persons, almost 100. The Police did not              c
make any effort to join independent persons in the investigation.
The entry to Junona, which is a jungle area, is by tickets.
However, no efforts were made to 'take the connecting evidence
of this nature.

      22. In the aforesaid scenario, we find that the present case .· D
is fully covered by the judgment of this Court in Meharaj Singh
v. State of Uttar Pradesh, (1994) 5 SCC 188, where the
importance of recording of FIR and the requirement of
dispatc~ing the copy thereof to the Magistrate within 24 hours        E
with the consequences frought with danger was highlighted in
the following manner:

     "12. FIR in a criminal case and particularly in a murder
     case is a vital arid valuable piece of evidence for the
     purpose of appreciating the evidence led at the trial. The       F
     object of insisting upon prompt lodgrng 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
     weapon$, if any, use.d, as also the names of the                 G
     eyewitnesses, if any. Delay in lodging the FIR often results
     in embellishment, which is a creature of an afterthought.
     On account of c;lelay, the FIR not only gets bereft of the
     advantage of spontaneity, danger also creeps in of the
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    454       SUPREME COURT REPORTS                  [2014] 6 S.C.R.


A         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
8         report in a murder case, by the local Magistrate. If this
          report is received by the Magistrate late it can give ris~ to
          an inference that the FIR was not lodged at the time it is
          alleged to have been recorded, unless, of course the
          prosecution can offer a satisfactory explanation for the
c         delay in despatching or receipt of the copy of the FIR by
          the local Magistrate. Prosecution has led no evidence at
          all in this behalf. The second external 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
D         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 the report. The absence of
E         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.
F         In our opinion, on account of the infirmities as noticed
          above, the FIR has lost its value and authenticity and it
          appears to us that the same has been ante-timed and had
          not been recorded till the inquest proceedings were over
          at the spot by PW 8."
G
          Neither the trial court nor the High Court has appreciated
    the aforesaid circumstances which go to the root of the matter
    and raise sufficient doubt about the involvements of the
    appellants in the present case.
H
         SUDARSHAN AND ANR. v. STATE OF                     455
           MAHARASHTRA [A.K. SIKRI, J.]
     23. We are, therefore, of the opinion that the appellants      A
are entitled to the benefit of doubt and the case against them
is not proved beyond reasonable doubt so as to uphold their
conviction into a serious charge of murder under Section 302
read with Section 34 of IPC:'
                                                                    B
     24. The appeal is, accordingly, allowed and the conviction
of the appellants under the aforesaid provisions is set aside.
The appellants, who are in custody, shall be released forthwith,
if not required in any other case.

Nidhi Jain                                        Appeal allowed.
                                                                    c