Holding

The High Court’s acquittal was unreasonable; the prosecution evidence was sufficient to sustain convictions under IPC 302, 34 and 324.

Summary

The State of Karnataka prosecuted four respondents for the murders of two brothers, alleging they were killed with an axe and sickle. The trial court convicted them under IPC sections 302, 34 and 324 based on eye‑witness testimony, recovered blood‑stained weapons, and post‑mortem reports. The Karnataka High Court acquitted, doubting the timing of the FIR, citing contradictions in witness statements, the non‑examination of some material witnesses, and questioning the motive and the legality of the seizure. The Supreme Court held that the High Court’s reasoning was unreasonable, that a delay in dispatch or receipt of the FIR does not vitiate the prosecution when the FIR was promptly lodged and investigation began, and that the absence of certain witnesses does not defeat the case if other reliable witnesses exist. It also rejected the view that the recovered weapons were inadmissible and affirmed the liability of the three surviving respondents under common intention. The Court set aside the High Court order and restored the trial court convictions.

Issues considered

The effect of delay in dispatch or receipt of the FIR under Section 157 CrPC on the validity of the prosecution case.
Whether non‑examination of material witnesses under Section 114(3)(g) of the Evidence Act vitiates the prosecution case.
The impact of contradictions in eye‑witness statements and alleged lack of motive on the conviction.
The admissibility of weapons and other items seized in a search that may not have complied strictly with procedural requirements.
Whether all the accused can be held liable under Section 34 IPC for common intention.

Legislation cited

Code of Criminal Procedure, 1973s. 157, s. 159
Indian Evidence Act, 1872s. 114(3)(g)
Indian Penal Code, 1860s. 302, s. 324, s. 34

Subjects

murdercommon intentionFIR delayevidence admissibilitynon‑examination of witnessescriminal appealKarnataka

Judgment

1
THE STATE OF KARNATAKA A
v.
MOIN PATAL AND OTHERS

FEBRUARY 22, 1996

[M.K. MUKHERJE AND B.N. KIRPAL, JJ.] B

Indian Penal Code, 1860-Section 302/34/324-Murder--Conviction by
Trial Court-Acquittal on re-evaluation and re-appreciation of the evidence
by High Court-On appeal held : High Court order suffeling from glaring and
severe e1Tors, based on conjectures and sunnises--Hence, set aside-Long C
interval between acquittal by High Court and hearing by Supreme Court-No
ground for not inte1fe1ing.

Criminal Pi·ocedure Code, 1973-Section 157-F.I.R.-Delay in
despatch or in its receipt by Magistrate-Prosecution case would not get
thereby tainted when FIR was promptly lodged and investigation started on D
that basis.

Evidence Act, 1872-Section 114 III (gHailure to produce mate1ial
witnesses--No satisfact01y explanation for non-examination-Held, entire
prosecution case cannot be thrown out on the ground that there are other E
independent witnesses whose evidence is reliable and tntstworthy.

According to the prosecution, the two deceased, D-1 and D-2 were
brothers and were closely related to the respondents. Their families were
having disputes over some properties. On 25.06.1978, at or about 8.00 P.M.
the four respondents went the shop of PW-14, where D-1 was setting and F
assaulted him with axe and sickle resulting in his instantaneous death.
Thereafter they went to the house of PW. 16 situated nearby the shop of
PW-14 and similarly did away with D-2.

PW-14, accompanied by PW-12 and others, went to the police station,
18 kms away and lodged the FIR at or about 1.00 A.M. PW-23(PSI) G
registered the case and sent a report to the Judicial Magistrate. He then
held the inquest on the dead body and sent it for post mortem examination
and also recorded and statements of some the witnesses U/S 161 Cr.P.C.
The respondents were arrested and in course of search of their persons,
two keys were recovered from R-2. Pursuant to the statements of R-1 and H
919
920 SUPREME COURT REPORTS [1996] 2 S.C.R.

A R-2, PW-24 (Circle Inspector) went to R-2's house and with the help of the
keys opened the rooms, from where sickle, axe and some clothes, all of
them were having blood stain, were recovered. On completion of the
investigation, PW-24 submitted a charge-sheet before the Court of Session.

Relying primarily upon the ocular version of P.Ws. 14, 15, 16, & 17
B and the recoveries of blood-stained weapons and clothes pursuant to the
statements and at the instance of R-1 & R- 2, the Trial Court came to the
conclusion that the charges leveled against all the four respondents were
made out by the prosecution beyond reasonable doubt and accordingly
convicted them U/s 302/34 I.P.C. (on two counts) and also U/S 324 I.P.C.
C against respondent No. 2.

The accused preferred an appeal before the High Court, which on
re-evaluation and re-appreciation. of the evidence, concluded that the
prosecution had failed to establish its case and set-aside the conviction.

D In appeal to this Court, the State contended that the impugned order
of acquittal was based on misreading of the evidence, reliance on minor
contradictions and injudicious reasonings. On behalf of the respondents, it
was contended that the view taken by the High Court, of the evidence, could
not be said to be unreasonable one because a different view could be taken
and the reasonings given in support of it, collectively justified the order.
E
Allowing the appeal, this Court

HELD : 1.1. The judgment of the High Court, acquitting the accused
from charge of committing murder was not reasonable but was laboured
one. '.Material evidence had been ignored, unimpeachable evidence had
F
been rejected on surmises and conjectures, undue importance had been
given to and emphasis laid on trivial and ignorable contradiction and some
conclusions had been drawn which were self contradictory. [928-A-B]

1.2. The approach of the High Court was wholly against the weight
G of the evidence. On the face of the evidence of the. witnesses PWs 12, 14, 23
& 6 undue reliance on the contradictory statements to brush aside the
prosecution story regarding lodging of the FIR, was completely unjustified.
[930-F-G]
1.3. Where the FIR was promptly lodged and investigation thereof
H started promptly, a mere delay in despatch of the FIR and for that matter
STATEv. MOIN PATAL 921

in receipt thereof by the Magistrate would not make i.he prosecution case A
tainted. The relevant provisions contained in Section 157 Cr. P.C. regard-
ing forthwith despatch of report (FIR) is really design to keep the
Magistrate informed of the investigation of the cognizable offence, so as
to be able to control the investigation and if necessary to give proper
direction under Section 159 Cr. P.C. Therefore, if in a case it is found that B
FIR was recorded without delay and investigation started thereof, then
however improper objectionable the delayed receipt of the report by the
Magistrate concerned, if cannot by itself justify the conclusion that the
investigation was tainted and the prosecution unsupportable. Pala Singh
v. State of Punjab, AIR 1972 S.C. 2679, relied on. [932-A-C]
c
2. If in a case it is found tbjlt there are other independent witnesses
whose evidence is reliable and ttustworthy to prove the charges leveled
against the accused, the infirmities arising out of non-examination of those
material witnesses will not be sufficient to put the prosecution case out of
the Court. The High Court was 'mot jµstified in discarding the entire
prosecution case and disbelieving the four eye-witnesses on this score. D
[938-C-D; B]
3. The High Court·had not given any reason whatsoever for rejection
of the evidence of the recovery of sickle and axe except observing that the
manner in which such search and seizure was effected was not in accord-
ance with law. The rejection of the evidence without spelling out any breach E
was not at all justified. The evidence on record which stand corroborated
by the medical evidence, clearly proves the prosecution case beyond all
reasonable doubts. [938-G-H]

4. On the material on record, the conclusion of the High Court that F
the prosecution had failed to establish its case could not be accepted. In

- the context of the glaring and sever errors in the Judgment which had led
to gross failure of justice, the threshold plea raised. on behalf of the
accused that having regard to long interval between the acquittal and the
hearing of appeal, this Court may not interfere with the Judgment of the G
High Court, could not be accepted. [928-B-C]

5. The impugned order of the High Court is set aside and the order
of the Trial Court in so far as it relates to R-1, R-2 and R-3 is restored.
As the above three respondents were on bail they would now surrender to
their bail-bonds to serve out the remainder of the sentence. [939-E] H
922 SUPREME COURT REPORTS (1996) 2 S.C.R.

A CRIMINAL A~PELLATE JURISDICTION: Criminal Appeal No.
113of1983.

From the Judgment and Order dated 27.5.81 of the Karnataka High
Court in Crl. A No. 158 of 1980.

B Mohan Veer Katarki for M. Veerappa and Ms. Manjula Kulkarni for
the Appellants. ..1.:

S.S. Javali, Y. Mohan and Ranjit Kumar for the Respondents.

The Judgment of the Court was delivered by
c
M.K. MUKHERJEE, J. This appeal, ~t the instance of the State of
Karnataka, is directed against the judgment of the Karnataka High Court
in Crl. Appeal No. 158 of 1980 whereby the High Court reversed the
conviction and sentence : recorded against the four respondents under
D Section 302 read with Section 34 IPC (on two counts) and also under
Section 324 IPC against the Respondent No. 2 by the Additional Sessions
Judge, Bidar and acquitted them. The two deceased, who were brothers,
were closely related to the respondents in that the respondent No. 2 is the
real brother of their father while the other three respondents are his
E (respondent No. 2's) sons. During pendency of this appeal the respondent
No. 4 died and, therefore, the appeal, so far as he is concerned, abates.

According to the prosecution case on June 25, 1978, at or about 8.
P.M., the four respondents (hereinafter referred to as Rl to R4 respective-
ly), who, along with the family of the deceased, are residents of village
F Kaplapur within the police station of Khatak-Chincholi in the district of
_Bidar went to the shop of Gorakhnath (P.W. 14) in their village where
Ismail Patel ('01' for short) was sitting and assaulted him with axe and
sickle resulting in his instantaneous death. Thereafter, they went to the
house of Chinnamma (PW 16), situated at a distance of 60170 paces from
G the shop of Gorakhnath, and similarly did away with the other bother Syed
Patel ('02' for short). When one Sakharam tried to come to the rescue of
02 he was also assaulted by Ri resulting in an injury on his left thigh. After
the incident Gorakhnath, accompanied by Amir Patel (PW 12) and others,
. went to th~ P.olic~ Station and lodged ~ report there at or about 1 AM.
On that repor~ ~SI Khaja Sanaulla (PW 23) registered a case and after
H sending a repo~t of the same to the Judicial Magistrate, Bhalki left for
STATEv. MOINPATAL[MKMUKHERJEE,J.] 923

- Kaplapur village at or about 1.45 AM. Reaching there at 5 AM. he held
inquest on the dead bodies and sent them for post mortem examination.
A

He seized some blood stained earth and sample earth from the two places
were the dead bodies were found as also the blood stained clothes found
on the bodies. He then recorded the statements of some of the witnesses
under Section 161 Cr. P.C. On that very day (26.6.1978) Gulam Hamid B
(P.W. 24), the Circle inspector of Police took over investigation of the case
from P.W. 23 and went in search of the respondents but could not find
them. However his repeated attempts to arrest the respondents ultimately
mel with success on July 17, 1978 when they were found in a ditch near
river Kanaja, flowing across Kurub Khedgi village. In course of search of
their persons P. W. 24 found two keys in the pocket of the baniyan of R2 C
and seized them. Pursuant to the statement made by R2 (Ex. P.36) and led
by him PW 84 went to his house and with one of the seized keys he (R2)
opened a room wherefrom a sickle, a dhoti and baniyan, all of which were
blood stained, were recovered. Thereafter Rl took them to another room
which on being opened with the other seized key found to contain an axe, D
a bushshirt, and a pair of trousers, all blo0d stained. P.W. 24 seized all
those articles and sent them for chemical examination. On receipt of the
report of the post mortem examination and chemical examination and after
completion of investigation, PW 24 submitted a charge sheet and in due
course the case was committed to the Court of Session.
E
The motive that was ascribed by the prosecution to the respondents
for the above murders was that the families of the accused and the
deceased were having disputes and frequent quarrels over their properties
in their village, and about a fortnight prior to the incident R2 had
threatened D2 with dire consequences. F

.... The respondents pleaded not guilty to the charges levelled against
them and their defence, as can be gathered from the tend of cross-examina-
tion and their statements recorded under Section 313 Cr. P.C., was that Dl
had an illicit connection with the wife of Raghunath, brother of P.W. 14,
and since the dead body of Dl was found on the katta of their shop, they, G
being afraid, falsely implicated the respondents as the culprits. They further
contended that Dl was the Secretary of 'Anjuman' and D2 was the
'Dalapati' of the village while their father, namely, Khan Patel was doing
'pairavi' w9rk in the village. All of them used to drink liquor and were
menace to the woman folk of the village. Some of these villagers who were H
924 SUPREME COURT REPORTS [1996] 2 S.C.R.

A ill-disposed cowards Khan Patel and his sons murdered Dl and D2 and
falsely implicated them in the case. They further contended that Chinnam-
ma (P.W. 16) was selling illicit liquor with the connivance of Dl and D2
and their father Khan Patel.

To substantiate the charges levelled against the respondents the
B prosecution relied primarily upon the ocular versions of Gorakhnath (PW
14) and Shivanna (PW 15) for the murder of Dl and of Chinnamma (P.W.
16)' and Hasan Sahib (PW 17) for the other. Besides, it rel~ed upon the
·evidence given in support of the motive for the murders and the recoveries
-
of blood stained weapons and clothes pursuant to the statements and at
c the instance of Rl and R2.

The trial Judge detailed and discussed the evidence adduced by the
prosecution (no evidence was laid on behalf of the respondents) at length
and on appreciation thereof held that the charges levelled against the
respondents stood conclusively proved.
D
In dealing with the appeal, the High Court first went into the ques-
tion whether the prosecution succeeded in proving that Dl and D2 met
with homicidal death and answered the same in its favour with the follow-
ing findings :
E "The fact that Dl and 02 died on account of the injuries sustained
by them due to assault has not been seriously challenged before
us, and further, that their death was homicidal admits of no doubt.
The evidence of P. Ws. 14 and 15 is to the effect that D 1 was assaulted
with axe and sickle by the accused and that P. W 19 who immediately
F went there was infonned by P.W 14 about the assault on DJ by the
accused and all of them found that D 1 was lying on the katta with
bleeding injwies. Similarly is the evidence of P.Ws. 16 and 17, who
claimed to have seen the assault on D2 by the accused with sickle ....
and axe. The dead body of D2 was lying on the katta of the house
of P. W 16 with bleeding injuries. In addition to this, there is the
medical evidence which conclusively proves that the death of both
Dl and 02 was homicidal. P.W. 20 Dr. Gopal, who conducted the
post-mortem examination on the dead body of Dl on 26.6.1978
found five incised wounds on the chest, near the fore-head, eye
and right side of the face and also found corresponding internal
H injuries. He has stated that all the injuries were ante-mortem and
STATE v. MOIN PATAL [M.K. MUKHERJEE, J.] 925

- the case of death was due to injury to the brain as a result of A
multiple fracture of the skull bones and the injuries themselves in
the ordinary course of nature are sufficient to case the death. He
has issued the post-mortem certificate as per Ex. P.22.

Similarly P.W. 22 Dr. Advappa, who held the post-motem
examination over the dead body of D2 on 27.6.1978 found 4 incised B
wounds over the right thigh, left shoulder, in the left infra axillary
region and below the 10th rib placed transversely. He also found
lacerated wound over the left abdomen, incised wound over the
back on left side about 2" away from midline at the level of T-11
and T-12" vertebra penetrating injury 1" below the lateral angle of C
the left eye, multiple fractures of the left temporal bone, perietal
occipital, right perietal and right temporal bones. He also found
that number of small fractured bone were penetrating the brain
matter. There was, according to him, corresponding internal in-
juries. He has further stated that all the said injuries were ante-
mortem and the cause of death was due to injuries to vital organs, D
namely, brain and kidney. He issued the post-mortem certificate
as per Ex. P. 24. The medical evidence has not been seriously
challenged. Therefore, the prosecution has proved that the death
of both Dl and D2 was homicidal in nature."
E
(emphasis supplied)

Notwithstanding the fact that the High Court relied upon the
evidence of the four eye witnesses, besides others', to draw the above
conclusions it disbelieved their evidence and, for that matter, the prosecu-
tion case so far as it sought to prove that the respondents were the authors F
of the crimes. The principal reasons for such disbelief as can be gathered
from the impugned judgment as under :

(a) The claim of PW 14 that the FIR was lodged at the police station
at 1.00 AM. was doubtful as the evidence of Const. Tuka Ram (PW 4) G
clearly proved that he and other police personnel had reached the village
by 12.30 AM. and that necessarily meant that the police had already come
to know about the incident by some agency;

(b) Since PW 23 admitted that he did not have sufficient knowledge
of Marathi and PW 14 asserted that he gave his statement of marathi, it H
,.
926 SUPREME COURT REPORTS [1996] 2 S.C.R.

A was evident that the former wrote the FIR in Kannada Language after
much deliberations;

(c) As D2 was the Dalpati and his father Khan Patel was the police
patel of the village and the relation between the families of the deceased
and the respondents was strained it was not unlikely that the FIR was
B lodged at the instance of the police pate! later on and his conclusion was
reinforced by the fact that the FIR reached the local Magistrate as late as
10.A.M. on June 26, 1978;

(d) Since PW 14's evidence regarding lodging of FIR was suspect his
C presence at the time and place of incident also became doubtful;

(e) Non-examination of Gundaji and Sakharam, who according to.the
prosecution also sustained injuries during the assaults on. Dl and D2
respectively, raised a considerable doubt about the manner in which those
assaults took place;
D
(f) The evidence of the eye witnesses as to the time when the
occurrence took place was contradictory inasmuch as while some of them
stated that it took place after darkness others asserted that it took place
before darkness set in;

E (g) If PW 14 had really seen the incident it was expected that he
would First lodge complaint with the Sarpanch of the local Panchayat, who
was residing at a distance of one mile from his village instead of going
straight to the police station which was at a distance of 18 kms.; -
(h) PW 14 did not raise any hue and cry at the time of the incident
F to attract the neighbours even though, admittedly, many people lived in and
around the vicinity of the place of incident;

(i) The non-seizure of the lanterns, glow of which, according to the
eye witnesses enabled them to identify the respondents went a long way to
G suggest that the occurrence did not take place in the manner alleged by
the prosecution;

G) Evidence in proof of the motive was not satisfactory; and

(k) The evidence adduced by the prosecution in the shape of the
H statements made by R.1 and R.2 leading to recovery of blood stained earth
STATE v. MOIN PATAL [M.K. MUKHERJEE, J.] 927

and blood stained weapons did not inspire confidence. A
The High Court also gave some other reasons for discarding the
prosecution case which we will refer to at the appropriate stage .

.Mr. Katarki, the learned counsel appearing for the appellant, sub-
mitted that a perusal of the record would clearly reveal that the impugned B
order of acquittal was based on misreading of the evidence, reliance on
minor contradictions and injudicious reasonings. In elaborating his conten-
tion he urged that having regard to the fact that the respondents did not
dispute that the murders took place at or about 8 P .M., the High Court
ought not to have considered, much less relied upon, the supposed con- C
tradictions between the evidence of the eye witnesses as to whether the
incident took place before or after darkness set in. He next urged that as
both the murders admittedly took place in two shops it was expected that
lanterns would be burning there at 8. P.M. and in that context non-seziure
of lanterns by the Investigating Officer was of· no moment. He lastly
contended that the High Court was not at all justified in concluding that D
the FIR was not recorded that the time alleged by the prosecution solely
relying upon a patently confused statement made by PW 4. Indeed, accord-
ing to the learned counsel, the evidence on record clearly showed that the
FIR was promptly lodged at the time alleged by the prosecution and was
forwarded to the Magistrate at the earliest available opportunity. E
Responding to the above contentions, Mr. Javali, the learned senior
counsel appearing for the respondents, first submitted that each of the
reasons canvassed by the High Court for recording the order of acquittal
were based on proper appreciation of evidence and, therefore, this Court
would not be justified in disturbing the same. He next submitted that even F
if it was assumed that one or the other of those reasons when considered
in isolation could not 0e sustained, still then the impugned order was not
liable to be set aside as collectively they justified the order. He further
contended that the view taken by the High Court of the evidence could not
be said to be an unreasonable one, the impugned order could not be G
interfered merely because a different view of the evidence could be taken.
To bring home their respective contentions the learned counsel drew our
attention to the relevant evidence on which the findings of the High Court
are based.

- To ascertain whether the judgment of the High Court can be sus- H
928 SUPREME COURT REPORTS [1996] 2 S.C.R.

A tained or not we have carefully gone through and ex.amined the same in
the light of the voluminous evidence on record. Our such exercise impels
us to hold that th~ view of the evidence taken by the High Court cannot
at all be said to be a reasonable one. Without meaning any disrespect to
the High Court we are constrained to say that the impugned judgment is
a laboured one. Material evidence has been ignored, unimpeachable
B
evidence has been rejected on surmises and conjectures, undue importance
has been given to and emphasis laid on trivial and ignorable contradictions
and some conclusions have been drawn which are self contradictory. In
fine, on the· materials on record it is impossible to accept the conclusions
of the High Court that the prosecution had failed to establish its case. It
C is in the context of these glaring and severe errors which has led to gross
failure of justice, that we are unable to accept the threshold plea raised on
behalf of the respondents th'lt having regard to the long interval between
the acquittal and the hearing of this appeal this Court may not interfere
with the judgment.
D
As noticed earlier one of the principal reasons which weighed with
the High Court in disbelieving the prosecution case was its suspicion
centring around the lodging of the FIR. As a matter of fact, the High Court
went to the extent of observing that the delay in lodging the FIR had a far
reaching effect on the consideration of the evidence of the four eye
E witnesses. It will be appropriate therefore to first advert our attention to
the evidence on record relating to the FIR. The entire evidence in this
regard was furnished by PW 14 who lodged it, PW 23 who recorded it and
,Const. No. 345. Kanshi Ram (PW-5) who took it to the Magistrate at
Bhaluka. PW 14 testified that accompanied by Maruthiappa, Ameer Patil
p (PW 12), Digamber and Vithoba he left their village (Kapalapur) at or
about 9.30 P.M. and reached Khatak Chincholi Police station (which
admittedly is at a distance of 18krns. from the village) at or about 1 AM.
There he orally reported the incident and PSI (PW 23) took down the same
on a paper and obtained his signatures thereon. On going through the
lengthy cross examination to which PW 14 was subjected to, we find that
G the only question that was put to him in connection with his above state-
ment was relating to the time taken in recording the FIR and his answer
was that it was completed in and about 1.1/2 hours to 1.3/4 hours. Lastly
it was suggested to him that the FIR was not recorded at the time alleged
by him and that it was subsequently prepared in consultation with the
H father of the deceased but he denied the suggestion. Though Ameer Patel
STATE v. MOIN PATAL [M.K. MUKHERJEE, J.] 929

(PW 12) whQ accompanied PW 14 along with others to the police station A
was not asked in his examination-in-chief the actual time when they
-~ reached there. In cross examination it was elicited from him that they
reached at 1 A.M. It was further elicited from that they returned to their
village along with PSI (PW 23) and other police personnel by bicycles. The
evidence of PW 23 on this point is that on 26.6.1978 at 1 A.M. Gorakhnath B

- (PW 14) of village Kapalapur came to the police station along with others
and gave an oral complaint which he reduced into writing and after reading
over the same to him took his signatures below it. He next stated that after
registering the case against Janu Patel, Safi Patel, Moin Patel and Mehboob
Patel (the four respondents) under Section 302 IPC on that FIR (Ext. P.21)
he sent it to the Judicial Magistrate 1st Class, Bhaluka through Const. No. C
345 Kashinath (PW 5). Thereafter at or about 1.43 AM. he along with his
staff, PW 14 and the persons who accompanied him left for Kapalapur
village and reached there at 5. A.M. All these three witnesses were cross
examined at length but nothing was - nor could be - elicited from them
which might go to even remotely suggest that their evidence as to the time D
when the FIR was recorded and PW 23 reached the village was suspect.
Since, inspite thereof, the High Court disbelieved their evidence mainly in
view of the evidence of Const. Tukaram (PW 4) we may now look into the
same. He was examined by the prosecution only to prove that on June 26,
1978 at or about 2 AM. the dead bodies of Dl and D2 were handed over
to him for post-mortem examination, that he took them to the hospital for E
the purpose and that after post-mortem examination those dead bodies
were handed over to him along with the clothes which were on their
persons; and he testified accordingly. In cross examination, however, the
following answers were elicited from him :
F
"I was present in K. Chincholi P.S., during the night of 25.6.78.
That night at about 12 mid night or 1 a.m. myself and Kashinath PC
343 went to Kaplapur on foot. The P.S.I. and Jamadar went ahead
on bicycle to Kaplapur. Myself and Kashinath reached Kaplapur by
about 12.30 that night. I again say the number of police constable
Kashinath who was with me i.e. 325 (PW 6). By the time we reached G
Kaplapur that night the P.S.l. and the Head Constable Seetaram and
Manikappa were present near the dead bodies. I do not remember
whether Gorakh was among them. The P.S.I. secured some persons
there and questioned them during that night, No records were
prepared during that night." H
"
930 SUPREME COURT REPORTS [1996] 2 S.C.R.

A (emphasis supplied)

Quoting the above passage and solely relying upon the same the
High Court observed that the a~ove evidence of P.W. 4 completely belied
the evidence of the above three witnesses, namely, PWs. 12, 14 and 23 and
B that the only inference that could be drawn from the evidence of P.W.4
was that police had already come to know about the incident from some
agency and the PSI along with others reached Kapalapur before 12.30 AM.
on 26.6.78. It is rather strange that the High Court failed to notice that the
answers elicited in cross examination from P.W. 4 as quoted above are self
contradictory for while in the first place P.W. 14 stated that he along with
C Const. Kashinath (PW 6) went to Kapalapur from the Police Station at 12
mid night or 1 AM., in the next hreath stated that he and Kashinath (PW
6) had reached there by 12.30 AM. that night. It is his further evidence
that they had left on foot. The above statement is not only confusing, for
he could not have left the police station and reached Kapalapur at or about
D the same time but also absurd for if we were to proceed on the assumption
that he had reached Kapalapur by 12.30 AM. it would mean that informa-
tion about the murders would have to reach the police station before the
murders were actually committed for it must have taken him about 4/5
hours to cover the distance of 18 kms. on foot in the night time. We hasten
to add that in making this rough assessment of time we have not even
E considered the time take~ in traversing that distance to give information of
the murder. Incidentally it may be mentioned that no evidence is forthcom-
ing to indicate that the Police Station could be contacted from the village
over telephone. Unfortunately, however, the High Court did not at all
consider the evidence of P.W. 4 from this perspective. Besides the High
F Court did not consider the evidence of Const. No. 325 Kashinath (PW 6),
who, according to P.W. 4 accompanied him, for his evidence not only
dispelled the confusion that was created by the above.evidence of P.W.4
but fully corroborated the uncontrovertable evidence of PWs 12, 14 and 23
on this point. P.W. 6 was examined by the prosecution to prove that the
accused persons were not found on the various occasions when he went to
G apprehend them and that he had taken the articles seized in connection
with the case to the Chemical Examiner. The witness, however, was cross
examined by the respondents regarding the role played by him on that
fateful night and he stated, inter alia :

H "On the night of the incident I was in the police station at Khatak
•
STATE v. MOIN PATAL [M.K MUKHERJEE, J.) 931

Chincholi. I came to Kaplapur village at about 5.00 a.m. on 26.6.78. A
That night we started from Khatak Chincholi at about 1.45 A.M and
reached Kaplapur at about 5.00 a.m. ".

The answers so elicited.in cross examination unmistakably prove that P.W.
4 left the police station at or about 12 mid night or 1 AM .. On the face B
of the evidence of the above four witnesses the High court was not at all
justified in giving undue reliance upon the contradictory statements made
by P.W. 4 to brush aside the prosecution story regarding lodging of the
FIR. In view of their evidence the High Court ought to have also noticed
that when P.W. 4 stated that he met P.W. 23 in that night, he (PW 4) used
the word 'night' loosely to mean the hours before the daybreak. It is C
pertinent to point out here that when it was suggested to P.W 23 that they
had reached the village by 12.30 AM. it was emphatically denied by him.

Coming now to the comment of the High Court that there was an
unusual. delay in receipt of the FIR by the Magistrate which made the D
prosecution story regarding lodging of the FIR doubtful, we get from PW
5 that he received the same from PW 23 at 1.30 AM. for handing over the
same to the local Magistrate. He testified that he tried to go by a lorry but
he could not get one. In rejecting his above plea the High Court observed
that PW 23 admitted that there were 4 or 5 cycles at his command in the
police station and, therefore, it ·was difficult to believe that he (PW 5) E
would not have been given a cycle to go to Bhaluka for the purpose and it
was also difficult to accept that no lorry was available on Bombay Hus-
sanabad High Way. We have not been able to appreciate the reasoning of
the High Court in this regard. The evidence on record unmistakably proves
that P.W. 5 received the FIR at the Police Station at or about 1.30 AM.
F
and handed over the same to the Magistrate at Bhaluka, which is at a
distance of 17 kms. from the police station, at or about 10 AM. It cannot
therefore be said that there was an unusual delay in handing over the FIR
to the Magistrate even if we are to proceed on the assumption that P.W.
S's explanation for not leaving-for Bhaluka at the dead of night was an
unsatisfactory one. While on this point, we also feel that the expectation of G
the High Court that P.W.5 would cover the distance of 17 ~s. at that
unearthly hour on a cycle only for handing over the FIR was too wide.

The matter can be viewed from another angle also. It has already
been found by us that the prosecution case that the FIR was promptly H
932 SUPREME COURT REPORTS [1996) 2 S.C.R.

A lodged at or about 1.30 AM. and that the investigation started on the basis
thereof is wholly reliable and acceptable. Judged in the context of the
above· facts the mere delay in dispatch of the FIR - and for that matter in
receipt thereof by the Magistrate - would not make the prosecution case
--
suspect for as has been pointed out by a three Judge Bench of this Court
in Pala Singh v. State of Punjab, AIR (1972) SC 2679, the relevant provision
B contained in Section 157 Cr. P.C. regarding forthwith dispatch of the report
(FIR) is really designed to keep the Magistrate informed of the investiga-
tion of a cognizable offence so as to be able to control the investigation
-
and if necessary to give proper direction under Section 159 Cr. P.C. and
therefore if in a given case it is found that F.I.R. was recorded without
C delay and the investigation started on that F.I.R. then however improper
or objectionable the delayed receipt of the report by the Magistrate con-
cerned it cannot by itself justify the conclusion that the investigation was
tainted and the prosecution unsupportable.

D The other criticism of the High Court regarding FIR based on P.W.
23's inability to fully understand Marathi language in which P.W. 14 gave
his statement, is equally unsustainable for it is the outcome of non con- ·
sideration of the evidence of the latter. In cross examination it was elicited
from P.W. 14 that his statement was read over to him in Kannada which
he understood and found it correctly written. In view_ of such assertion of
E P.W. 14 it is evident that there was a proper channel of communication
between him and P.W. 23. Resultantly, it must be said that the inference
drawn by the High Court that the FIR must have seen the light of the day
subsequently, after much deliberation is without any foundation however.
In view of our above findings the other related observation of the High
F Court that as D2 was the Dalpati and his father Khan Patel was the police
patel of the village and as the relation between the families of the deceased
and the respondents was strained it was not unlikely that the FIR was
lodged at the instance of the police Patel later, must be said to be based
on surmise only.

G Now that we have found that none of the grounds canvassed by the
High Court for concluding that the F.1.R. was not lodged at or about the
..
time alleged by the prosecution is sustainable, neither the prosecution case
nor the evidence of P.W.14 can be doubted on that score as has been done
by the High Court. We therefore proceed to examine the other grounds
H which weighed with the High Court for recording the order of acquittal.
t
STATE v. MOIN PATAL [M.K. MUKHERJEE, J.] 933

As noticed earlier in disbelieving the evidence of the eye witnesses A
the High Court observed that they contradicted each other as to the time
when the incident took place for while some of them stated that it took
place after darkness others asserted that it took place before darkness set
in. In making the above observation the High Court failed to notice that
even the defence did not dispute the fact that the incident took place at or B
about 8 P.M., as was the prosecution case, when it suggested to the eye
witnesses that in the night of the incident some unknown persons killed
Ismail Patel and that they could not be identified in the darkness. In that
context the High Court ought to have ignored the contradiction referred
to above as of no moment - more so as the witnesses were rustic villagers.
It is also pertinent to point out here that the High Court itself proceeded C
on the footing that the incident took place after darkness had set in and
tested the evidence of the eye witnesses in that context, as the discussion
to follow will indicate.

The next comment of the High Court that it wa.s expected of P.W. D
14 to first lodge the report with the Sarpanch of the local panchayat which
was at a distance of 1 mile from the village instead of going to the police
station which was 18 kms. away is also tenuous for the Sarpanch would
not have any role to play in dealing with the crimes and the perpetrators
thereof except reporting to the police station and, therefore, if P.W. 14
decided to himself go straight to the police station it could not be said that E
his such decision was an unusual one. In a situation like the one in which
P.W. 14 was placed, every person reacts in his own way and so long his
such reaction cannot be said to be against all canons of normal human
behaviour no exception can be taken to the same.
F
The High Court then referred to the following statement made by
P.W. 14 in his cross examination :

"After the accused went away it did not strike me that I should go
to the house of the Patil to Inform the incident nor did it strike
me that I should gather people and catch the accused persons." G

to observe, that it was expected of P.W. 14, if really the ghastly murder had
taken place in his shop, to shout and draw attention of neightbours, in
making the above observation the High Court totally overlooked the
evidence of Ameer Patel (P.W. 12) when he stated: H
J
934 SUPREME COURT REPORTS [1996] 2 S.C.R.

A "About one and a quarter years back on one evening I returned
from land and I was in my house. At about 8.30 p.m. I heard noise
of weeping and shouting. Some women were running saying that
Syed Patel and Ismail Patel were killed by their uncle and his sons.
I too ran with those people. I came near the shop of Gorakh (P.W.
14). Some people had gathered there. The dead body of Ismail Patel
B was lying on the katta in front of the shop of the Gorakh."

(emphasis supplied)

The High Court has much commented upon the failure of P.W. 14
C to mention in the FIR about his having seen the assailants by the light of
the lanterns as also the non-seizure thereof by the police. According to the
High Court as the incident took place in the dark, the source of light by
which witnesses could identify the assailants was an important factor. Since
however P.W. 14 did not speak about it in the FIR, his claim, and that of
D the other eye witnesses that they could identify the assailants was totally ·
unacceptable. The irrationality of the above observations of the High Court
be evident, from the fact that the High Court recorded a finding, which we
have quoted earlier, that the murders did take place in the shops of P.W.
14 and P.W. 16; and when it was not in dispute that those murders took
place at or about 8. P.M. the only legitimate inference that can be drawn
E is that there would be lights in the shops to conduct business. We are also
surprised to see that after recording the above findings the High Court
went to the extent of even observing that Dl was not expected to be in the
shop of P.W. 14 to purchase cigarettes as evidence was led to show that
he himself had a grocery shop in his . house and that if really D 1 was
F . smoking cigarette sitting in the katta in front of the shop of Raghunath
when he was killed the investigating agency would not have failed to notice
and seize the but-end of the cigarette. The High Court ought to have held,
having concurred with the finding of the trial Court that Dl was murdered
in the shop of P.W. 14 and his dead body was found there, the reason which
G prompted him to go there was wholly immaterial. The presence of P.W. 14
in the shop at the material time was also doubted by the High Court on
the ground that as his brother Raghunath was the owner of the shop and
he (Raghunath) was in the village on th~t day he was expected to run the ·
shop in the evening, and not P.W. 14. It is in evidence - which was not
challenged - that Gorakhnath and his brother were jointly owning and
H running the shop and therefore, P.W. 14's claim that he was in the shop at
STATE v. MOIN PATAL [M.K MUKHERJEE, J.] 935

the material time was nothing unusual and, on the contrary, natural. A

Apart from the fact that PW 14 was the most natural witness - the
murder of Dl having taken place in their shop - we find that PW 14 was
a disinterested witness also, for except a suggestion that he was inimically
disposed towards the respondents which was denied by him and a _state- B
ment made by R.3 in his statement recorded under Section 313 Cr. P.C.
that there was a dispute between their family and Gundaji (grandfather of
PW 14), which also remained unsubstantiated, there is no other reliable
material on record to support the defence contention. We further find that
even though PW 14 was cross examined at length nothing could be elicited
in cross examination to discredit him. His evidence clearly establishes that C
all the respondents entered into the shop and Rl and R2 assaulted Dl with
axe and sickle respectively as a result of which he fell down dead there.
His evidence further shows that PW 15, who was in the shop at that time,
was detained by A3 and A4 and when PW 14 tried to come out of the shop
he too was detained by them. He also testified that Gundaji, who had come D
to the shop in the meanwhile was kicked on the hips by R 4 (since
deceased). He further stated that thereafter the respondents went towards
the house of Chinamma (PW 16). According to PW 14, when lshwara (PW
19) opened the door of his house and came near his shop he (P.W. 14)
disclosed the incident to him. The FIR, which we have found to have been
lodged by PW 14 at the earliest opportunity and contains the substratum E
of the prosecution case, also goes a long way to corroborate his evidence.

Coming now to the evidence of P.W. B we find that the High Court
discarded his evidence on the ground that it smacked of artificiality without
spelling out the reasons therefor. It, however, pointed out certain con- F
tradictions with reference to his statement recorded under Section 161 Cr.
P.C. Having carefully gone through those contradictions we are constrained
to say that the trial Court ought not to have permitted the defence to bring
them on record as they were only minor omissions :md, as such did not
amount to contradictions. P.W. 13 lived at a distance of 50- 60 paces away
from the shop of P.W. 14 and he stated that at or about 7.30 P.M. he went G
to that shop to buy beedies. Reaching there he found P.W. 14 sitting in his
shop with a lantern in front of him and Al present there. He then
recounted the manner in which Rl and R2 murdered Dl and the treatment
meted out to him, PW. 14 and Gundaji, by the other two respondents. PW
13 also stated that Ishwara (P.W. 19) came there immediately after the H
936 SUPREME COURT REPORTS [1996] 2 S.C.R.

A incident and P.W. 14 reported the incident to him. We find that this witness
was also subjected to lengthy cross examination, but it did not yield any
response favourable to the defence. The High Court, however, observed
that his evidence was contradictory in as much as while in one breath he
said that he raised a hue and cry but none came there, in the other he
stated that he was afraid as he was threatened by the respondents not to
B make any noise. We do not think that such a contradiction was worth
considering much less a sufficient ground to discard the evidence of a
disinterested witness. On the contrary, we find, his evidence corroborates
P.W. 14 on all material particulars and does not suffer from any infirmity
whatsoever. The evidence of these two eye witnesses again gets some
C support from that of Ishwara (PW 19) who lives next to the shop of P.W.
14. From his evidence we get. that hearing some thud emanating from the
side of the shop of P.W. 14 when he went there he found 01 lying dead
there and P.W. 14 and PW 15 and Gundaji present. He also deposed that
P.W. 14 named the four respondents as the miscreants As we find no
D reason to disbelieve P.Ws. 14 and 15, we must hold that the respondents
were responsible for the murder of 01.

Regarding the other murder the prosecution relied upon, as already
noticed, the ocular versions of P.W. 16 and 17. As regards their evidence
the High Court first observed that 'though both the witnesses appeared to
E have corroborated each other in all material particulars with regard to the
assault on 02 the same is not free from doubt'. The first reason expressed
for doubting the evidence of P.W. 16 was in the context of the admitted
fact that she was selling liquor in her house without any licence and the
suggestion put to her by the defence that she was interested in the prosecu-
F tion as both 02 and his father Khan Patel allowed her to run such business
and did not bring it to the notice of the concerned authorities. We are
surprised to find that the High Court relied upon the above suggestion to
hold that PW 16 was an interested witness even though she denied it and
there was not an iota of evidence to indicate that 02 and his father Khan
G Patel permitted her to continue such unuthorised sale of liquor. Another
reason for disbelieving her was that she had admitted in the cross-examina-
tion that at the time the assault took place it has not yet become dark and,
therefore, there was no necessity for her to have lit two chimnies, as
testified to by her. Besides, she did .not speak of the chimnies in her
statement before the Investigating Officer. As discussed earlier the
H evidence on record clearly proves that the murder of 02 took place in
STATEv. MOINPATAL[M.K.MUKHERJEE,J.] 937

-
'
darkness - in fact after that of Dl - and therefore, presence of two lighted A
chimnies, more, when she was running a business, though illegal, was very
likely. It appears that an argument made on behalf of the prosecution that
since the incident had taken place in her house her presence could not be
ruled out was outright rejected by the High Court with the observation that
the mere fact that dead body of 0 2 was found in her house would not
mean that she must have been present. The High Court further observed B
that the reasons given by it for discarding the evidence of P.Ws. 14, 15 and
19 equally applied in respect of that of P.Ws. 16 and 17 also. Failure of
P.W. 17 to inform Khan Patel or the persons concerned about the murder
of 02, if really he had seen it, was also treated as a ground by the High
Court to disbelieve him. C

None of the above grounds to disbelieve the evidence of P.Ws. 16
and 17 impresses us for reasons which we have already given while dealing
with the observations made by the High Court against acceptance of the
evidence of P.Ws. 14 and 15. It appears from the evidence of P.W. 16 that
it was not disputed by the defence that she was running a liquor shop in D
her house. It is of course true that she was running the same illegally but
that cannot be treated as a factor for disbelieving her, if she is otherwise
reliable. P.W. 16 stated that on.the evening of the incident when she was
sitting in the padasala of her house D 2 came there followed by Hussainsab
(P.W. 17), a little later. While PW 17 was talking to 02, R3 came there E
and asked for some liquor. On her replying that liquor was not available,
R3 retorted why did she then keep the chimney burning in the padsala. So
saying he begain to lift his dhoti obscend to which 02 objected. In the
meantime Sakharam had also come to the padsala. Then came Rl, R2 and
R4 and stood adjacent to the Katta. When 02 asked why they had come
there, R3 caught hold of his hair and felled him. Then both Rl and R2 F
assaulted them with their respective weapons, namely, with axe and sickle.
When Sakaram intervened he was assaulted by R2. The evidence of P.W.
Pis on the same lines. These two witnesses also most natural and probable
witnesses, besides being disinterested. ln such circumstances there cannot
be any justifiable ground to disbelieve them, more so, when the High Court
also found th;:i.t they corroborated each other on material particulars, but G
rejected their evidence on grounds which were wholly unsustainable. Once
their evidence is accepted as reliable the three respondents must be held
liable for the death of D2 also.

The High Court much commented upon the failure of the prosecu- H
938 SUPREME COURT REPORTS (1996] 2 S.C.R.

A tion to examine Gundaji and Sakaram, who according to the eye witnesses
were in the shops of P.W. 14 and P.W. 16 respectively at the material time
and sustained minor injuries. It is undoubtedly true that they were material
witnesses and no satisfactory explanation was offered by the prosecution
for their non-examination. Therefore, the question that naturally arises for
consideration is whether the High Court was justified in discarding the
B entire prosecution case and disbdieving the four eye witnesses on that
score. We have given our anxious consideration to this aspect of the matter
and in our view the approach in such a case would be to find an answer
to the question whether the evidence actually produced is reliable or not
and not to the question whether non-examination of such witnesses ipso
c facto vitiates the entire prosecution case, if the presumption under Section \

'
114 (g) of the Evidence Act were to be drawn. In other words, if in a given
case, it is found that there are independent witnesses whose evidence is
reliable and trustworthy to prove the charges levelled against the accused \
the infirmities arising out of non examination of other independent wit-
D nesses will not be sufficient to put the prosecution case out of Court. In
that view of the matter and for the foregoing discussion we are unable to
sustain the findings of the High Court in this regard.

The High Court also doubted the prosecution case for its failure to
satisfactorily prove the motive ascribed for the murders. Even if we
E proceed on the assumption that the finding of the High Court in this regard
is correct still that it would not affect the prosecution case in any manner,
for law is well settled that if the prosecution case regarding the commission
of the offence itself can be safely relied upon, the question of motive pales
into insignificance.
F
Lastly the High Court has · found that the evidence led by the
prosecution to prove the recovery of the sickle and axe pursuant to the
statements made by Rl and R2 did not inspire confidence. Unfortunately,
however, the High Court has not given any reason whatsoever for such
rejec;tion except observing that the manner in which search and seizure was
G effected was not in accordance with law, without spelling out the breach.
Though it appears to us that the above comment of the High Court is not
proper one, in view of the evidence on record, we do not wish to delve
further into this aspect of the case for the evidence of the eye witnesses,
which stand corrob~rated by medical evidence clearly proves the prosecu-
H tion case beyond all reasonable doubts.
STATEv. MOINPATAL[M.KMUKHERJEE,J.] 939

It was contended on behalf of the respondents that even if the entire A
prosecution case was accepted as true, still R3 could not be saddled with
the liabilityfor any of the two murders, for he did not, on the own showing
of the prosecution, participate in the actual assault on Dl and 02 and there
was no material to infer that he shared that common intention to commit
the murders with Rl and R2, so as to foist him with that liability with the B
aid of Section 34 IPC. We are not impressed by this argument. The
evidence of the eye witnesses clearly establishes that R3 accompanied by
Rl and R2, who were armed, first went to the shop of PW 14. Evidence
further reveals that during assault on Dl he detained P.W. 14 and P.W. 15
when they tried to go out of the shop obviously to ensure that they could
not call other people to come to their rescue. Evidence also reveals that C
after Dl was murdered, he went to the shop of P.W. 16, with Rl and R2
where the other murder was committed. During the assault on 02 when
P.W. 17 caught hold of the handle of the axe that was in the hand of Al,
A3 went behind P.W. 17, fisted him twice on the back of his neck, pushed
him down the katta and detained him. From all these facts and circumstan- D
ces it is patently clear that he also shared a common intention with Rl and
R2 to commit the murders.

On the conclusions as above we allow this appeal, set aside the
impugned order of the High Court and restore that of order of the trial
Court is so far as they relate to Noin Patel, (Rl), Janu Patel, (R2) and Sofi E
Patel, (R3). As, the above three respondents are on bail· they will now
surrender to their bail bounds to serve out the remainder of the sentence.

B.K.S. Appeal allowed.