Supreme Court of India
YANAB SHEIKH@ GAGUversusSTATE OF WEST BENGAL
- Citation
- 2012 INSC 596
- Decided
- 13 December 2012
- Disposal
- Dismissed
- Bench
- SWATANTER KUMAR
Holding
Ex.1/3 is the valid FIR; Ex.7 is only a telephonic information, and the appellant’s conviction under IPC s.302 and the Indian Explosives Act s.9(b)(ii) stands.
Summary
The appellant Yanab Sheikh was convicted for murdering Samim Ali by throwing a bomb, under IPC s.302 and the Indian Explosives Act s.9(b)(ii). The prosecution’s case rested on eyewitness statements and forensic evidence. The appellant challenged the conviction on five grounds, chiefly that the police entry recorded as Ex.7 was the first information report (FIR) and that the later Ex.1/3 was an impermissible second FIR violating Sec.162 CrPC, that the FIR copy was sent late violating Sec.157(1), that the prosecution failed to examine all witnesses, and that the acquittal of a co‑accused should mandate his acquittal. The Supreme Court held that Ex.7 was merely a telephonic information, not an FIR, and that Ex.1/3 was the proper FIR; no violation of Sec.162 or Sec.157(1) occurred. The prosecution had examined witnesses adequately and the quality of evidence was sufficient to sustain conviction. The acquittal of the co‑accused did not affect the appellant’s guilt. The conviction was upheld and the appeal dismissed.
Issues considered
- The nature of Ex.7: whether it constitutes a First Information Report under Sec.154 CrPC.
- Whether Ex.1/3 amounts to a second FIR prohibited by Sec.162 CrPC.
- Whether the delay in sending the FIR copy to the magistrate violates Sec.157(1) CrPC.
- Whether the prosecution’s failure to examine certain witnesses warrants reversal of conviction.
- The effect of the co‑accused’s acquittal on the appellant’s conviction.
Legislation cited
- Code of Criminal Procedure, 1973s. 154, s. 156, s. 157, s. 162, s. 167(2), s. 173, s. 190, s. 540
- Explosives Act, 1884s. 9(b)(ii)
- Indian Evidence Act, 1872s. 134
- Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 304, s. 324, s. 326, s. 34
Subjects
First Information ReportSection 162 CrPCsecond FIRIndian Explosives Actmurderevidence qualityco‑accused acquittalcriminal procedure
Judgment
[2012] 13 S.C.R. 1150
A YANAB SHEIKH@ GAGU
v.
STATE OF WEST BENGAL
(Criminal Appeal No. 905 of 2009)
DECEMBER 13, 2012
B
[SWATANTER KUMAR AND MADAN B. LOKUR, JJ.]
Code of Criminal Procedure, 1973 - ss.154 and 162 -
FIR - Requirements - Held: A FIR normally should give the
c basic essentials in relation to the commission of a cogrJizable
offence upon which the Investigating Officer can immediately
start his investigation - On facts, Ex. 7 was not a FIR its proper
construction in law but was a mere telephonic information
inviting the police to the place of occurrence - It gave no
0 details of the commission of the crime as to who had
committed the crime and how the occurrence took place - In
fact, it was only upon reaching the place of occurrence that
the Investigating Officer got particulars of the incident and
even the names of the persons who had committed the crime
E - A written complaint with the basic details was thereafter given
by PW1 under his signatures to the police officer, who then
made endorsement as Ex. 111 and registered the FIR as Ex. 11
3 - In the circumstances, it cannot be said that Ex. 7 was the
FIR and that Ex. 113 was a second FIR for the same incident!
F occurrence with similar details and was hit by s. 162 CrPC.
Penal Code, 1860 - s.302 - Indian Explosives Act -
s.9(b)(ii) - Prosecution case that throwing of bomb by
appellant-accused led to instantaneous death of PW1's
brother - Conviction of appellant - Sustainability - Held: PW1
G (complainant), PWS(wife of the deceased) and PW6(cousin
of the deceased) clearly supported the case of the prosecution
- Their statements, examined in conjunction with the
statement of PW11, the doctor and the Investigating Officer,
1150
H
YANAB SHEIKH@ GAGU v. STATE OF WEST 1151
BENGAL
PW14, clearly established the case of the prosecution beyond A
any reasonable doubt - Direct and circumstantial evidence
against the appellant - Conviction accordingly upheld.
Criminal Trial - Acquittal of co-accused - Effect - Held:
Where prosecution is able to establish the guilt of the accused
8
by cogent, reliable and trustworthy evidence, mere acquittal
of one accused would not automatically lead to acquittal of
another accused - It is only where the entire case of the
prosecution suffers from infirmities, discrepancies and where
the prosecution is not able to establish its case, the acquittal
of co-accused would be of some relevance for deciding the C
case of the other accused.
Evidence - Appreciation of - Held: It is not always the
quantity but the quality of the prosecution evidence that
weighs with the Court in determining the guilt of the accused D
or otherwise - In order to prove its case beyond reasonable
doubt, the evidence produced by the prosecution has to be
qualitative and may not be quantitative in nature.
The prosecution case was that appellant-accused
had a heated altercation with PW1 and his brother while E
they were drawing water from the village pond (water
tank); that thereafter, appellant suddenly went running to
his house and came back with the other accused who had
a cloth bag in his hand and that thereafter appellant took
out a bomb from the said cloth bag and threw the same F
towards PW1 's brother which hit him on his chest
causing his instantaneous death.
PW6 gave information with regard to the incident to
the Police Station through telephone based on which G
G.D. Entry No.708, Ex.7 was lodged. Subsequently when
the police officials, PWs14 and 15 arrived at the spot,
PW1 submitted a written complaint, Ex.1, whereupon a
formal FIR, Ex.1/3, was registered. The trial court
convicted appellant u/s 302 IPC and Section 9(b)(ii) of the H
1152 SUPREME COURT REPORTS (2012] 13 S.C.R.
A Indian Explosives Act but acquitted the other accused.
In appeal, High Court affirmed the conviction of appellant.
In the instant appeal, the appellant challenged his
conviction inter a/ia on grounds:- 1) that Ex.7, the G.D.
Entry No. 708, lodged at Police Station by PW6 was, in
8 fact, the FIR whereas Ex.1/3 was a second FIR of the
occurrence which was impermissible in law and in fact,
was hit by Section 162 CrPC; 2) t~at the copy of the FIR
was sent to the Court of SDJM ten days after the date of
occurrence and, therefore, was violative of Section 157(1)
· C CrPC; 3) that the prosecution had not examined all the
witnesses and 4) that acquittal of the other accused
should necessarily result in acquittal of the appellant as
well.
o Dismissing the appeal, the Court
HELD: 1. The cumulative effect of the statements of
PW1 (Complainant), PW6 (cousin of the deceased) and
PW14 (Investigating Officer) clearly indicate that Ex.7 was
E not the First Information Report of the incident. It gave no
details of the commission of the crime as to who had
committed the crime and how the occurrence took place.
A First Information Report normally should give the basic
essentials in relation to the commission of a cognizable
offence upon which the Investigating Officer can
F immediately start his investigation in accordance with the
provisions of Section 154, Chapter XII of the Code. In fact,
it was only upon reaching the village that PW14 got
particulars of the incident and even the names of the
persons who had committed the crime. A written
G complaint with such basic details was given by PW1
under his signatures to the police officer, who then made
endorsement as Ex.1/1 and registered the FIR as Ex.1/3.
In these circumstances, it cannot be said that Ex.7 was,
in fact and in law, the First Information Report and that
H Ex.1/3 was a second FIR for the same incident/
YANAB SHEIKH @ GAGU v. STATE OF WEST 1153
BENGAL
occurrence with similar details and was hit by Section A
162 CrPC. On the contrary, Ex.7 was not a First
Information Report upon its proper construction in law
but was a mere telephonic information inviting the police
to the place of occurrence. [Paras 7, 12] [1162-C-F; 1179-
C] B
Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1:
2010 (4) SCR 103; State of Andhra Pradesh v. V. V.
Panduranga Rao (2009) 15 SCC 211: 2009 (7) SCR 421;
Ravishwar Manjhi & Ors. v. State of Jharkhand (2008) 16 C
SCC 561: 2008 (17) SCR 420 and Anju Chaudhary v. State
of U.P. & Anr. [Criminal Appeal @ SLP(Crl.) No. 9475 of
2008 decided on the 6th December, 2012 - relied on.
2. The incident took place at about 4.00 to 4.30 p.m.
The telephonic information was given at about 9.00 p.m. D
and thereafter the FIR, Ex.1/3, was registered at about
10.00 p.m. The question of delay in lodging the FIR in the
present case does not arise. Whatever time was taken
in registering the FIR stands fully explained by the
statements of PW6 and PW14. [Para 24] [1187-F] E
3. The appellant stated that the FIR was registered
on 19th December, 1984 but was sent to the Court of the
Magistrate on 29th December, 1984 and pointed out the
Entry No.793/1984 in this regard. However, the said G.R. F
Entry is not the entry sending the First Information
Report to the Court. The document shown by the
appellant is neither the copy of the FIR nor does it
contain any acknowledgment of the Court. It is merely
a note of the case proceedings as to what steps have
been taken by the Investigating Officer and was signed G
by the Investigating Officer on 19th December, 1984
itself. [Para 13] [1179-E-F]
4.1. PW8, PW9 and PW10 were produced as
witnesses before the Court. After recording their H
1154 SUPREME COURT REPORTS [2012] 13 S.C.R.
A introductory part in the examination-in-chief, the
prosecution gave up these witnesses as having been
won over and tendered them for cross-examination. The
Court recorded this aspect and also mentioned that the
witnesses have been cross-examined by the defence. In
B view of this position, it cannot be said that the defence
of the accused has suffered any prejudice as a result of
non-examination of these three witnesses. [Para 14]
[1180-A-C]
4.2. It is not always the quantity but the quality of the
C prosecution evidence that weighs with the Court in
determining the guilt of the accused or otherwise. The
prosecution is under the responsibility of bringing its
case beyond reasonable doubt and cannot escape that
responsibility. In order to prove its case beyond
D reasonable doubt, the evidence produced by the
prosecution has to be qualitative and may not be
quantitative in nature. The Court is primarily concerned
and has to satisfy itself with regard to the evidence being
reliable, trustworthy and of a definite evidentiary value in
E accordance with law. PW1, PW5 and PW6 have clearly
supported the case of the prosecution. Their statements,
. examined in conjunction with the statement of PW11, the
doctor and the Investigating Officer, PW14, clearly
establish the case of the prosecution beyond any
F reasonable doubt. [Paras 18, 20] [1182-B-C; 1183-B-C]
Namdeo v. State of Maharashtra (2007) 14 SCC 150:
2007 (3) SCR 939 and Bipin Kumar Monda/ v. State of West
Bengal (201 O) 12 sec 91: 201 o (8) SCR 1036 - relied on.
G Masa/ti v. State of UP. AIR 1965 SC 202: 1964 SCR
133 - referred to.
5.1. The Trial Court in its judgment clearly stated that
there was direct and circumstantial evidence against the
H appellant implicating him with the commission of the
YANAB SHEIKH @ GAGU v. STATE OF WEST 1155
BENGAL
crime. Finding the appellant guilty of the offence, the Trial A
Court punished him accordingly. Where the prosecution
is able to establish the guilt of the accused by cogent, .
reliable and trustworthy evidence, mere acquittal of one
accused would not automatically lead to acquittal of
another accused. It is only where the entire case of the B
prosecution suffers from infirmities, discrepancies and
where the prosecution is not able to establish its case,
the acquitia1 of the co-accused would be of some
relevancy for deciding the case of the other. [Para 22)
[1184-F-H; 1185-A] C
5.2. The acquittal of a co-accused per se is not
sufficient to result in acquittal of the other accused. The
Court has to screen the entire evidence and does not
extend the threat of falsity to universal acquittal. The
Court must examine the entire prosecution evidence in D
its correct perspective before it can conclude the effect
of acquittal of one accused on the other in the facts and
circumstances of a given case. [Para 23] [1187-C]
Dalbir Singh v. State of Haryana (2008) 11 SCC 425: E
2008 (8) SCR 1026 - relied on.
Case Law Reference:
2010 (4) SCR 103 relied on Para 8
2009 (7) SCR 421 relied on Para 8 F
2008 (17) SCR 420 relied on Para 9
1964 SCR 133 referred to Para 15, 16
2007 (3) SCR 939 relied on Para 18
G
2010 (8) SCR 1036 relied on Para 19
2008 (8) SCR 1026 relied on Para 33
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 905 of 2005. H
1156 SUPREME COURT REPORTS [2012] 13 S.C.R.
A From the Judgment and Order dated 21.11.2006 of the
High Court of Calcutta in C.R.A. No. 283 of 1992.
S.K. Gupta, R.K. Gupta, Shekhar Kumar for the Appellant.
Kabir Shankar Bose, Abhijit Sengupta, B.P. Yadav, Faisal
B M. for the Respondents.
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. The present appeal is
C directed against the judgment of the Calcutta High Court dated
21st November, 2006 in exercise of its criminal appellate
jurisdiction vide which the High Court affirmed the judgment of
conviction and the order of sentence passed by the Trial Court.
2. Before dealing with the rival contentions raised by the
D learned counsel appearing for the parties, it is necessary for
the Court to notice the case of the prosecution in brief. On 19th
December, 1984, amongst other villagers of village Lauria,
Yamin PW8 and Mohammed Sadak Ali, PW1 hired a pump
set of one Humayun Kabir, who was examined as PW7, for
E taking water from the pond known as Baro Lauria Pukur for
irrigating their respective lands. PW8, Yamin and others drew
water from the said pond. In the afternoon, when Mohammed
Sadak Ali, PW1, and his brother, the deceased Samim Ali,
went on the bank of the said tank for drawing water through the
F said pump, accused Yanab arrived there. He had an altercation
with Mohammed Sadak Ali and Samim Ali which related to
drawing of water from the tank. Though, PW1 had assured
Yanab that they would stop taking water from the Pukur within
a short time, yet Yanab forcibly switched off the pump machine.
G This further aggravated their altercation and accused started
abusing them. Thereafter, accused Yanab suddenly went
running to his house and came back within a few minutes along
with the other accused named Najrul. Yanab then threw a bomb
aiming at Samim Ali which hit him on his chest and exploded.
H As a result thereof, Samim fell onto the ground, his clothes got
YANAB SHEIKH@ GAGU v. STATE OF WEST 1157
BENGAL [SWATANTER KUMAR, J.]
burnt and he died. instantaneously. It is also the case of the A
prosecution that Najrul had a cloth bag in his hand and Yanab
took out the bomb from that cloth bag and threw the same
towards Samim. Immediately after the incident, both the
accused persons fled away. With the help of the villagers,
Mohammed Sadak Ali took Samim to his house which was B
stated to be at a short distance from the bank of the tank. The
information with regard to the incident was given to the
Rampurhat Police Station through telephone. SI R.P. Biswas,
PW14, along with SI Samit Chatterjee, PW15, arrived at village
Lauria around 10.00 p.m. on 19th December, 1984. The c
telephonic information, on the basis of which the G.D. Entry
No.708, Ex.7, was lodged was made by PW6 from a phone
booth. After these officers arrived, PW1, Sadak Ali submitted
a written complaint, Ex.1, addressed to the Officer lncharge of
Rampurhat Police Station. SI, R.P.Biswas, then made an. D
endorsement, Ex.1 /1 and sent the same through Constable
Sunil Dutta to Rampurhat Police Station for starting a case
under Sections 148/149/324/326/302 of the Indian Penal Code
(for short 'IPC') and 9(b)(ii) of the Indian Explosives Act. Ex.1
was received at the police station by SI B.Roy. Upon this, a E
formal FIR, Ex.1/3, was registered and the investigation was
started by PW14. He prepared the Inquest Report, Ex.2, over
the dead body of the deceased on identification of the same
by his brother, PW2. The sketch map of the place of
occurrence, Ex.8, was prepared. The pump set was seized vide F
seizure list Ex.5 and a Zimma Nama Ex.6 was prepared.
PW14 also collected the post mortem report of the deceased
from the Sub-Divisional Hospital, Rampurhat on 21st January,
1985. Because of transfer of PW14, the investigation of the
case was taken up by SI, N.R. Biswas. Later on the G
investigation was also completed by PW15, S. Chatterjee, who
had filed the charge sheet. TIJe accused persons faced the
trial for the above-mentioned offences before the Court of
Sessions, which by a detailed judgment dated 18th September,
1992, held them guilty of the offences and punished the H
1158 SUPREME COURT REPORTS [2012] 13 S.C.R.
A accused Yanab as follows:
"I, therefore, hold and find accused Yanob not guilty to the
charge under section 324 of the l.P.C. and he is acquitted
of that charge.
B
As regards the charge under section 9(b)(ii) of the
I.E. Act there is no evidence that accused Nazrul had in
his possession bombs which were explosives in nature
without any license or permit and as such he is found not
guilty to the said charge and is acquitted.
c
My findings are that accused Yanob threw the bomb
which exploded on the chest of Samim causing his
instantaneous death and as such it must be held that
Yanob was in possession of explosive substance without
D any license or permit.
Exts. 9 and 9/1 the reports of the Deputy Controller
of Explosives go to establish that the remnants of the
exploded bomb that was seized by PW14 and sent to him
E by C.S. witness N0.23 in sealed packets contained an
explosive mixture of chlorate of potassium and sulphate of
arsenic and such a bomb would be capable of
endangering human life on explosion and it has been
established from the evidence on record that it has not only
F endangered human life but brought a premature end of the
life of a human being and as such I hold and find accused
Yanob guilty to the charge under section 9(b) (ii) of tl:ie I.E.
Act and he is convicted thereunder.
In the result the prosecution case succeeds in part.
G Accused Nazrul is found not guilty to both the charges
brought against him and is acquitted under section 235(1)
Cr.P.C.
Accused Yanob Skis found guilty to the charge u/s
H 302 of the l.P.C. and under section 9(b)(ii) of the I.E. Act
YANAB SHEIKH@ GAGU v. STATE OF WEST 1159
BENGAL [SWATANTER KUMAR, J.]
and is convicted under both the counts of charges. He is, A
however, found not guilty to the charge under section 324
l.P.C. and is acquitted of that charge.
Sd/- P.K. Ghosh,
Addi. Sessions Judge, 8
Birbhum at Rampurhat,
18th September, 1992.
Heard accused Yanob on the point of sentence. The
accused refuses to say anything or to make any
submission on the point of sentence. Since no lesser than C
imprisonment for life can be imposed in an offence under
section 302 l.P.C., the accused Yanob Skis sentenced to
imprisonment for life for the conviction under section 302
l.P.C. No separate sentence is being passed for the
conviction under Section 9(b)(ii) of the I.E. Act. D
Let a copy of this judgment of conviction and
sentence be supplied free of cost to the convict accused
Yanob Sk. as early as possible.
E
Sd/- P.K. Ghosh,
Addi. Sessions Judge,
Birbhum at Rampurhat,
18th September, 1992."
3. Aggrieved from the above judgment, the convicted F
accused, Yanab Sheikh, preferred an appeal before the High
Court which came to be dismissed vide the impugned
judgment, giving rise to the present appeal. While raising a
challenge to the impugned judgment, the learned counsel for
the appellant contended: G
1. Ex.1/3 is a second FIR of the occurrence. Ex. 7, the
G.D. Entry No. 708, lodged at 2105 hrs. on 19th
December, 1984 at Police Station Rampurhat by
PW6 is, in fact, the FIR.. The second FIR, Ex.1/3, H
1160 SUPREME COURT REPORTS [2012] 13 S.C.R.
A is neither permissible in law and in fact, is hit by the
provisions of Section 162 of the Cr.P.C. (for short
'Code'). Thus, the entire case of the prosecution
must fall to the ground.
B 2. The copy of the FIR was sent to the Court of SDJM
after ten days of the date of occurrence and,
therefore, is violative of Section 157(1) of the Code,
on which account the appellant would be entitled to
a benefit.
c 3. The prosecution has not examined all the witnesses
without specifying any reason. Therefore, adverse
inference should be drawn against the prosecution.
There are material discrepancies and variations in
the statements of the witnesses. Even the injured
D witnesses were not examined. For these reasons,
the case of the prosecution must fail.
4. The acquittal of Najrul by the Trial Court should
necessarily result in acquittal of the present
E appellant as well, because without attributing and
proving the role of Najrul, the appellant could not be
held guilty of committing any offence.
5. Lastly, it is contended that the offence squarely falls
under Section 304, Part II of the IPC inasmuch as
F
it was a fight that took place all of a sudden and
resulted in the death of the deceased. There was
no pre-meditation or intent to murder the
deceased.
G 4. To the contra, it is contended by the learned coun$el
appearing for the State that the accused was convicted on 1Sth
September, 1992 in the present case. He was granted bail
on 29th September, 1992 and was convicted for life in another
case under Sections 302/34 IPC in Case No. 44/1993 by the
H High Court. PW1, PW5 and PW6 are the eye-witnesses to the
./ YANAB SHEIKH @ GAGU v. STATE OF WEST 1161
BENGAL [SWATANTER KUMAR, J.]
occurrence and the prosecution has been able to prove its case A
beyond any reasonable doubt. The delay in lodging the report
was primarily for the reason that the person had walked to the
post office which was at quite a distance and then made a
phone call to the police station. PW14 had come on the basis
of the call made by PW6. Thus, there was neither unexplained B
delay in making the call nor in lodging the FIR. It is also the
contention that Ex.7, the GD Entry is not an FIR but is a mere
intimation without any details and, therefore, the provisions of
Section 162 of the Code are not attracted in the present case.
5. First and foremost, we may examine the question
c
whether FIR, Ex.1/3, can be treated by the Courts as the First
Information Report and if so, what is the effect of Ex.7 in law,
keeping in view the facts and circumstances of the present
case. It is clearly established on record that the occurrence
D
took place in the evening of .19th December, 1984. The
occurrence was a result of an altercation and the abuses hurled
at PW1 and the deceased by Yanab near the water tank.
Immediately upon the altercation, the accused had ran to his
house and returned along with Najrul and threw a bomb at the E
deceased. PW1, brother of the deceased, PWS, Basera Bibi,
wife of the deceased. and PW6 Abdus Sukur, cousin of the
deceased are the eye-witnesses and they said that they had
seen the appellant throwing a bomb upon the deceased and
that the accused, Yanab, had taken the said bomb from the bag
of Najrul. F
6. After the incident, PW6 had gone to the Duni Gram
Post Office and informed the police about the incident over the
telephone. He informed the police that there had been a
murder in the village and they should come. When the police G
arrived, he was in the village and he met the police at the house
of the deceased Samim. This phone call was taken and the
G.D. Entry was registered by PW14, SI RP. Biswas.
7. According to PW14, on 19th December, 1984 at about H
1162 SUPREME COURT REPORTS [2012] 13 S.C.R.
A the 0805 hours, he had received a telephonic information and
noted the information in General Diary No. 708 and thereafter
he had proceeded towards village Lauria along with PW15, SI
S. Chaterjee. Ex.7 had been recorded by PW14 and he had
received the written complaint by PW1, Sadek Ali, and the
B same was submitted to him after he had reached the village
Lauria and was addressed to the Officer In-charge, Rampurath
Police Station. This written complaint was Ex.1. The
cumulative effect of the statements of PW1, PW6 and PW14
clearly indicate that Ex.7 was not the First Information Report
c of the incident. It gave no details of the commission of the
crime as to who had committed the crime and how the
occurrence took place. A First Information Report normally
should give the basic essentials in relation to the commission
of a cognizable offence upon which the Investigating Officer can
0 immediately start his investigation in accordance with the
provisions of Section 154, Chapter XII of the Code. In fact, it
was only upon reaching the village Lauria that PW14 got
particulars of the incident and even the names of the persons
who had committed the crime. A written complaint with such
E basic details was given by PW1 under his signatures to the
police officer, who then made endorsement as Ex.1/1 and
registered the FIR as Ex.1/3. In these circumstances, we are
unable to accept the contention that Ex.7 was, in fact and in
law, the First Information Report and that Ex.1/3 was a second
F FIR for the same incident/occurrence which was not
permissible and was opposed to the provisions of the Section
162 of the Code.
8. In the case of Manu Sharma v. State (NCT of Delhi)
(2010) 6 SCC 1, a Bench of this Court took the view that cryptic
G telephone messages could not be treated as FIRs as their
object is only to get the police to the scene of offence and not
to register the FIR. The said intention can also be clearly culled
out from the bare reading of Section 154 of the Code which
states that the information if given orally should be reduced to
H writing, read over to the informant, signed by the informant and
YANAB SHEIKH@ GAGU v. STATE OF WEST- 1163
BENGAL [SWATANTER KUMAR, J.]
a copy of the same be given to him, free of cost. Similar view A
was also expressed by a Bench of this Court in the case of State
of Andhra Pradesh v. V. V. Panduranga Rao (2009) 15 SCC
211, where the Court observed as under: -
"10. Certain facts have been rightly noted by the High B
Court. Where the information is only one which required
. the police to move to the place of occurrence and as a
matter of fact the detailed statement was recorded after
going to the place of occurrence, the said statement is to
be treated as FIR. But where some cryptic or anonymous C
oral message which did not in terms clearly specify a
cognizable offence cannot be treated as FIR. The mere fact
that the information was the first in point of time does not
by itself clothe it with the character of FIR. The matter has
to be considered in the background of Sections 154 and
162 of the Code of Criminal Procedure, 1973 (in short "the D
Code"). A cryptic telephonic message of a cognizable
offence received by the police agency would not constitute
an FIR."
9. Thus, the purpose of telephone call by PW6, when E
admittedly he gave no details, leading to the recording of Entry,
Ex.7, would not constitute the First Information Report as
contemplated under Section 154 of the Code. The reliance
placed by the learned counsel appearing for the appellant upon
the provisions of Section 162 of the Code, is thus, not well- F
founded. Even in the case of Ravishwar Manjhi & Ors. v. State
of Jharkhand, (2008) 16 SCC 561, another Bench of this Court
took the view that " ..we are not oblivious to the fact that a mere
information received by a police officer without any details as
regards the identity of the accused or the nature of the injuries G
caused to the victim, name of the culprits, may not be treated
as FIR, but had the same been produced, the nature of the
information received by the police officer would have been
clear..... "
H
1164 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 10. On this principle of law, we have no hesitation in stating
that the second FIR about the same occurrence between the
same persons and with similarity of scope of investigation,
cannot be registered and by applying the test of similarity, it
may then be hit by the proviso to Section 162 of the Code.
B
11. In the case of Anju Chaudhary v. State of U.P. & Anr.
[Criminal Appeal @ SLP(Crl.) No. 9475 of 2008 decided on
the 6th December, 2012], this Court held :
· "13. Section 154 of the Code requires that every
c information relating to the commission of a cognizable
offence, whether given orally or otherwise to the officer in-
charge of a police station, has to be reduced into writing
by or under the direction of such officer and shall be signed
by the person giving such information. The substance
D thereof shall be entered in a book to be kept by such officer
in such form as may be prescribed by the State
Government in this behalf.
14. A copy of the information so recorded under Section
E 154(1) has to be given to the informant free of cost. In the
event of refusal to record such information, the complainant
can take recourse to the remedy available to him under
Section 154(3). Thus, there is an obligation on the part of
a police officer to register the information received by him
F of commission of a cognizable offence. The two-fold
obligation upon such officer is that (a) he should receive
such information and (b) record the same as prescribed.
The language of the section imposes such imperative
obligation upon the officer. An investigating officer, an
officer-in-charge of a police station can be directed to
G
conduct an investigation in the area under his jurisdiction
by the order of a Magistrate under Section 156(3) of the
Code who is competent to take cognizance under Section
190. Upon such order, the investigating officer shall
conduct investigation in accordance with the provisions of
H
YANAB SHEIKH @ GAGU v. STATE OF WEST 1165
BENGAL [SWATANTER KUMAR, J.]
Section 156 of the Code. The specified Magistrate, in A
terms of Section 190 of the Code, is entitled to take
cognizance upon recei~ing a complaint of facts which
constitute such offence; upon a police report of such facts;
upon information received from any person other than a
police officer, or upon his own knowledge, that such B
offence has been committed.
15. On the plain construction of the language and scheme
of Sections 154, 156 and 190 of the Code, it cannot be
construed or suggested that there can be more than one c
FIR about an occurrence. However, the opening words of
Section 154 suggest that every information relating to
commission of a cognizable offence shall be reduced to
writing by the officer in-charge of a Police Station. This
implies that there has to be the first information report
0
about an incident which constitutes a cognizable offence.
The purpose of registering an FIR is to set the machinery
of criminal investigation into motion, which culminates with
filing of the police report in terms of Section 173(2) of the
Code. It will, thus, be appropriate to follow the settled E
principle that there cannot be two Fl Rs registered for the
same offence. However, where the incident is separate;
offences are similar or different, or even where the
subsequent crime is of such magnitude that it does not fall
within the ambit and scope of the FIR recorded first, then F
a second FIR could be registered. The most important
aspect is to examine the inbuilt safeguards provided by
the legislature in the very language of Section 154 of the
Code. These safeguards can be safely deduced from the
principle akin to doubt jeopardy, rule of fair investigation
and further to prevent abuse of power by the investigating
authority of the police. . Therefore, second FIR for the
same incident cannot be registered. Of course, the
Investigating Agency has no determinative right. It is only
a right to investigate in accordance with the provisions of
H
1166 SUPREME COURT REPORTS [2012) 13 S.C.R.
A the Code. The filing of report upon completion of
investigation, either for cancellation or alleging commission
of an offence, is a matter which once filed before the court
of competent jurisdiction attains a kind of finality as far as
police is concerned, may be in a given case, subject to
B the right of further investigation but wherever the
investigation has been completed and a person is found
to be prima facie guilty of committing an offence or
otherwise, reexamination by the investigating agency on
its own should not be permitted merely by registering
c another FIR with regard to the same offence. If such
protection is not given to a suspect, then possibility of
abuse of investigating powers by the Police cannot be
ruled out. It is with this intention in mind that such
interpretation should be given to Section 154 of the Code,
D as it would not only further the object of law but even that
of just and fair investigation. More so, in the backdrop of
the settled canons of criminal jurisprudence, re-
investigation or de novo investigation is beyond the
competence of not only the investigating agency but even
E that of the learned Magistrate. The courts have taken this
view primarily for the reason that it would be opposed to
the scheme of the Code and more particularly Section
167(2) of the Code. [Ref. Rita Nag v. State of West
Bengal [(2009) 9 SCC 129] and Vinay Tyagi v. lrshad Ali
@ Deepak & Ors. (SLP (Crl) No.9185-9186 of 2009 of
F
the same date).
16. It has to be examined on the merits of each case
whether a subsequently registered FIR is a second FIR
about the same incident or offence or is based upon
G distinct and different facts and whether its scope of inquiry
is entirely different or not. It will not be appropriate for the
Court to lay down one straightjacket formula uniformly
applicable to all cases. This will always be a mixed
question of law and facts depending upon the merits of a
H given case. In the case of Ram Lal Narang v. State (Delhi
YANAB SHEIKH @ GAGU v. STATE OF WEST 1167
BENGAL [SWATANTER KUMAR, J.]
Administration) [(1979) 2 SCC 322], the Court was A
concerned with the registration of a second FIR in relation
to the same facts but constituting different offences and
where ambit and scope of the investigation was entirely
different. Firstly, an FIR was registered and even the
charge-sheet filed was primarily concerned with the B
offence of conspiracy to cheat and misappropriation by the
two accused. At that stage, the investigating agency was
not aware of any conspiracy to send the pillars (case
property) out of the country. It was also not known that
some other accused persons were parties to the C
conspiracy to obtain possession of the pillars from-the
court, which subsequently surfaced in London. Earlier, it
was only known to the Police that the pillars were stolen
as the property within the meaning of Section 410 IPC and
were in possession of the accused person (Narang o
brothers) in London. The Court declined to grant relief of
discharge to the petitioner in that case where the
contention raised was that entire investigation in the FIR
subsequently instituted was illegal as the case on same
facts was already pending before the courts at Ambala and E
courts in Delhi were acting without jurisdiction. The fresh
facts came to light and the scope of investigation
broadened by the facts which came to be disclosed
subsequently during the investigation of the first FIR. The
comparison of the two FIRs has shown that the F
conspiracies were different. They were not identical and
the subject matter was different. The Court observed that
there was a statutory duty upon the Police to register every
information relating to cognizable offence and the second
FIR was not hit by the principle that it is impermissible to G
register a second FIR of the same offence. The Court held
as under:
"20.Anyone acquainted with the day-to-day working
of the criminal courts will be alive to the practical
necessity of the police possessing the power to H
1168 SUPREME COURT REPORTS [2012] 13 S.C.R:
A make further investigation and submit a
supplemental report. It is in the interests of both the
prosecution and the defence that the police should
have such power. It is easy to visualize a case
where fresh material may come to light which would
B implicate persons not previously accused or
absolve persons already accused. When it comes
to the notice of the investigating agency that a
person already accused of an offence has a good
alibi, is it not the duty of that agency to investigate
c the genuineness of the plea of alibi and submit a
report to the Magistrate? After all, the investigating
agency has greater resources at its command than
a private individual. Similarly, where the involvement
of persons who are not already accused comes to
D · the notice of the investigating agency, the
investigating agency cannot keep quiet and refuse
to investigate the fresh information. It is their duty
to investigate and submit a report to the Magistrate
upon the involvement of the other persons. In either
E 1l'a'Se, it is for the Magistrate to decide upon his
future course of action depending upon the stage
at which the case is before him. If he has already
taken cognizance of the offence, but has not
proceeded with the enquiry or trial, he may direct
F the issue of process to persons freshly discovered
to be involved and deal with all the accused in a
single enquiry or trial. If the case of which he has
previously taken cognizance has already
proceeded to some extent, he may take fresh
G cognizance of the offence disclosed against the
newly involved accused and proceed with the case
as a separate case. What action a Magistrate is
to take in accordance with the provisions of the
CrPC in such situations is a matter best left to the
discretion of the Magistrate. The criticism that a
H
YANAB SHEIKH@ GAGU v. STATE OF WEST 1169
BENGAL [SWATANTER KUMAR, J.]
further investigation by the police would trench upon A
the proceeding before the court is. really not of very
great substance, since whatever the police may do,
the final discretion in regard to further action is with
the Magistrate. That the final word is with the
Magistrate is sufficient safeguard against any B
excessive use or abuse of the power of the police
to make further investigation. We should not,
however, be understood to say that the police
should ignore the pendency of a proceeding before
a court and investigate every fresh fact that comes c
to light as if no cognizance had been taken by the
Court of any offence. We think that in the interests
of the independence of the magistracy and the
judiciary, in the interests of the purity of the
administration of criminal justice and in the interests 0
of the comity of the various agencies and
institutions entrusted with different stages of such
administration, it would ordinarily be desirable that
the police should inform the court and seek formal
permission to make further investigation when fresh E
facts come to light.
21. As observed by us earlier, there was no
provision in the CrPC, 1898 which, expressly or by
necessary implication, barred the right of the police
to further investigate after cognizance of the case F
had been taken .by the Magistrate. Neither Section
173 nor Section 190 lead us to hold that the power
of the police to further investigate was exhausted
by the Magistrate taking cognizance of the offence.
Practice, convenience and preponderance of G
authority, permitted repeated investigations on
discovery of fresh facts. In our view, notwithstanding
that a Magistrate had taken cognizance of the
offence upon a police report submitted under
Section 173 of the 1898 Code, the right of the H
1170 SUPREME COURT REPORTS [2012) 13 S.C.R.
A police to further investigate was not exhausted and
the police could exercise such right as often as
necessary when fresh information came to light.
Where the police desired to make a further
investigation, the police could express their regard
B and respect for the court by seeking its formal
permission to make further investigation.
22. As in the present case, occasions may arise
when a second investigation started independently
of the first may disclose a wide range of offences
c including those covered by the first investigation.
Where the report of the second investigation is
submitted to a Magistrate other than the Magistrate
who has already taken cognizance of the first case,
it is up to the prosecuting agency or the accused
D concerned to take necessary action by moving the
appropriate superior court to have the two cases
tried together. The Magistrates themselves may
take action suo motu. In the present case, there is
no problem since the earlier case has since been
E withdrawn by the prosecuting agency. It was
submitted to us that the submission of a charge-
sheet to the Delhi court and the withdrawal of the
case in the Ambala court amounted to an abuse of
the process of the court. We do not think that the
F prosecution acted with any oblique motive. In the
charge-sheet filed in the Delhi court, it was
expressly mentioned that Mehra was already facing
trial in the Ambala Court and he was, therefore, not
being sent for trial. In the application made to the
G Ambala Court under Section 494 CrPC, it- was
expressly mentioned that a case had been filed in
the Delhi Court against Mehra and others and,
therefore, it was not necessary to prosecute Mehra
in the Ambala court. The Court granted its
H permission for the withdrawal of the case. Though
YANAB SHEIKH@ GAGU v. STATE OF WEST 1171
BENGAL [SWATANTER KUMAR, J.]
the investigating agency would have done better if A
it had informed the Ambala Magistrate and sought
his formal permission for the second investigation,
we are satisfied that the investigating agency did
not act out of any malice. We are also satisfied that
there has been no illegality. Both the appeals are, B
therefore, dismissed."
17. in the case of M. Krishna v. State of Kamataka [(1999)
3 SCC 247], this Court took the view that even where the
article of charge was similar but for a different period, there C
was nothing in the Code to debar registration of the second
FIR. The Court opined that the FIR was registered for an
offence under Sections 13(1 )(e) and 13(2) of the
Prevention of Corruption Act related to the period 1.8.1978
to 1.4.1989 and the investigation culminated into filing of
a report which was accepted by the Court. The second D
FIR and subsequent proceedings related to a later period
which was 1st August, 1978 to 25th July, 1978 under
similar charges. It was held that there was no provision
which debar the filing of a subsequent FIR.
E
18. In the case of T. T. Antony v. State of Kera/a [(2001) 6
SCC 181], the Court explained that an information given.
under sub-Section (1) of Section 154 of the Code is
commonly known as the First Information Report (FIR).
Though this term is not used in the Court, it is a very F
important document. The Court concluded that second FIR
for the same offence or occurrence giving rise to one or
more cognizable offences was not permissible. In this
case, the Court discussed the judgments in Ram Lal
Narang (supra) and M. Krishna (supra) in some detail, and G
while quashing the subsequent FIR held as under :
"23. The right of the police to investigate into a
cognizable offence is a statutory right over which the
court does not possess any supervisory jurisdiction H
1172 SUPREME COURT REPORTS [2012] 13 S.C.R.
A under CrPC. In Emperor v. Khwaja Nazir Ahmad
the Privy Council spelt out the power of the
investigation of the police, as follows:
"In India, as has been shown, there is a
B statutory right on the part of the police to
investigate the circumstances of an alleged
cognizable crime without requiring any
authority from the judicial authorities, and it
would, as Their Lordships think, be an
c unfortunate result if it should be held possible
to interfere with those statutory rights by an
exercise of the inherent jurisdiction of the
court."
24. This plenary power of the police to investigate
D a cognizable offence is, however, not unlimited. It
is subject to certain well-recognised limitations.
One of them, is pointed out by the Privy Council,
thus:
E "[l]f no cognizable offence is disclosed, and
still more if no offence of any kind is
disclosed, the police would have no authority
to undertake an investigation .... "
25. Where the police transgresses its statutory
F
power of investigation the High Court under Section
482 CrPC or Articles 226/227 of the Constitution
and this Court in an appropriate case can interdict
the investigation to prevent abuse of the process
of the court or otherwise to secure the ends of
G justice.
xxx xxx xxx
35. For the aforementioned reasons, the
H registration of the second FIR under Section 154
YANAB SHEIKH @ GAGU v. STATE OF WEST 1173
BENGAL [SWATANTER KUMAR, J.]
CrPC on the basis of the letter of the Director A
General of Police as Crime No. 268 of 1997 of
Kuthuparamba Police Station is not valid and
consequently the investigation made pursuant
thereto is of no legal consequence, they are
accordingly quashed. We hasten to add that this B
does not preclude the investigating agency from
seeking leave of the Court in Crimes Nos. 353 and
354 of 1994 for making further investigations and
filing a further report or reports under Section 173(8)
CrPC before the competent Magistrate in the said C
cases. In this view of the matter, we are not inclined
to interfere with the judgment of the High Court
under challenge insofar as it relates to quashing of
Crime No. 268 of 1997 of Kuthuparamba Police
Station against the ASP (R.A. Chandrasekhar); in D
all other aspects the impugned judgment of the
High Court shall stand set aside."
19. The judgment of this Court in T. T. Antony (supra) came
to be further explained and clarified by a three Judge E
Bench of this Court in the case of Upkar Singh v. Ved
Prakash [(2004) 13 SCC 292], wherein the Court stated
as under:
"17. It is clear from the words emphasised
hereinabove in the above quotation, this Court in the F
case of T. T. Antony v. State of Kera/a has not
excluded the registration ofa complaint in the nature
of a counter-case from the purview of the Code. In
our opinion, this Court in that case only held that any ~
further complaint by the same complainant or G
others against the same accused, subsequent to
the registration of a case, is prohibited under the
Code because an investigation in this regard would
have already started and further complaint against
the same accused will amount to an improvement H
1174 SUPREME COURT REPORTS [2012) 13 S.C.R.
A on the facts mentioned in the original complaint,
hence will be prohibited under Section 162 of the
Code. This prohibition noticed by this Court, in our
opinion, does not apply to counter-complaint by the
accused in the first complaint or on his behalf
B alleging a different version of the said incident.
18. This Court in Kari Choudhary v. Sita Devi
discussing this aspect of law held:
"11. Learned counsel adopted an alternative
c contention that once the proceedings
initiated under FIR No. 135 ended in a final
report the police had no authority to register
a second FIR and number it as FIR No. 208.
Of course the legal position is that there
D cannot be two FIRs against the same
accused in respect of the same case. But
when there are rival versions in respect of the
same episode, they would normally take the
shape of two different Fl Rs and investigation
E can be carried on under both of them by the
same investigating agency. Even that apart,
the report submitted to the court styling it as
FIR No. 208of1998 need be considered as
an information submitted to the court
F regarding the new discovery made by the
police during investigation that persons not
named in FIR No. 135 are the real culprits.
To quash the said proceedings merely on the
ground that final report had been laid in FIR
G No. 135 is, to say the least, too technical. The
ultimate object of every investigation is to find
out whether the offences alleged have been
committed and, if so, who have committed
it.
ti
H
-
YANAB SHEIKH@ GAGU v. STATE OF WEST 1175
BENGAL [SWATANTER KUMAR, J.)
(emphasis supplied) A
xxx xxx xxx
23. Be that as it may, if the law laid down by this
Court in T.T. Antony case is to be accepted as
holding that a second complaint in regard to the B
same incident filed as a counter-complaint is
prohibited under the Code then, in our opinion, such
conclusion would lead to serious consequences.
This will be clear from the hypothetical example
given hereinbelow i.e. if in regard to a crime C
committed by the real accused he takes the first
opportunity to lodge a false complaint and the same
is registered by the jurisdictional police then the
aggrieved victim of such crime will be precluded
from lodging a complaint giving his version of the D
incident in question, consequently he will be
deprived of his legitimated right to bring the real
accused to book. This cannot be the purport of the
Code.
E
24. We have already noticed that in T.T. Antony
case this Court did not consider the legal right of
an aggrieved person to file counterclaim, on the
contrary from the observations found in the said
judgment it clearly indicates that filing a counter- F
complaint is permissible.
25. In the instant case, it is seen in regard to the
incident which took place on 20-5-1995, the
appellant and the first respondent herein have
lodged separate complaints giving different G
versions but while the complaint of the respondent
was registered by the police concerned, the
complaint of the appellant was not so registered,
hence on his prayer the learned Magistrate was
H
1176 SUPREME COURT REPORTS [2012) 13 S.C.R.
A justified in directing the police concerned to register
a case and investigate the same and report back.
In our opinion, both the learned Additional Sessions
Judge and the High Court erred in coming to the
conclusion that the same is hit by Section 161 or
B 162 of the Code which, in our considered opinion,
has absolutely no bearing on the question involved.
Section 161 or 162 of the Code does not refer to
registration of a case, it only speaks of a statement
to be recorded by the police in the course of the
c investigation and its evidentiary value."
20. Somewhat similar view was taken by a Bench of this
Court in the case of Rameshchandra Nandlal Parikh v.
State of Gujarat [(2006) 1 SCC 732], wherein the Court
held that the subsequent Fl Rs cannot be prohibited on the
D ground that some other FIR has been filed against the
petitioner in respect of other allegations filed against the
petitioner.
21. This Court also had the occasion to deal with the
E situation where the first FIR was a cryptic one and later on,
upon receipt of a proper information, another FIR came to
be recorded which was a detailed one. In this case, the
court took the view that no exception could be taken to the
same being treated as an FIR. In the case of Vikram v.
F State of Maharashtra (2007) 12 SCC 332, the Court held
that it was not impermissible in law to treat the subsequent
information report as the First Information Report and act
thereupon. In the case of Tapinder Singh v. State of
Punjab [(1970) 2 SCC 113] also, this Court examined the
G question as to whether cryptic, anonymous and oral
messages, which do not clearly specify the cognizable
offence, can be treated as FIR, and answered the question
in the negative.
22. In matters of complaints, the Court in the case of Shiv
H
YANAB SHEIKH@ GAGU v. STATE OF WEST 1177
BENGAL [SWATANTER KUMAR, J.]
Shankar Singh v. State of Bihar (2012) 1 SCC 130 A
expressed the view that the law does not prohibit filing or
entertaining of a second complaint even on the same facts,
provided that the earlier complaint has been decided on
the basis of insufficient material or has been passed
without understanding the nature of the complaint or where B
the complete facts could not be placed before the court and
the applicant came to know of certain facts after the
disposal of the first complaint. The Court applied the test
of full consideration of the complaints on merits. In
paragraph 18, the Court held as under: - C
"18. Thus, it is evident that the law does not prohibit
filing or entertaining of the second complaint even
on the same facts provided the earlier complaint
has been decided on the basis of insufficient 0
material or the order has been passed without
understanding the nature of the complaint or the
complete facts could not be placed before the court
or where the complainant came to know certain
facts after disposal of the first complaint which could E
have tilted the balance in his favour. However, the
second complaint would not be maintainable
wherein the earlier complaint has been disposed of
on full consideration of the case of the complainant
on merit."
F
23. The First Information Report is a very important
document, besides that it sets the m-~chinery of criminal
law in motion. It is a very material document on which the
entire case of the prosecution is built. Upon registration of
FIR, beginning of investigation in a case, collection of G
evidance during investigation and formation of the final
opinion is the sequence which results in filing of a report
under Section 173 of the Code. The possibility that more
than one piece of information is given to the police officer
in charge of a police station, in respect of the same incident H
1178 SUPREME COURT REPORTS [2012] 13 S.C.R.
A involving one or more than one cognizable offences, cannot
be ruled out. Other materials and information given to or
received otherwise by the investigating officer would be
statements covered under Section 162 of the Code. The
Court in order to examine the impact of one or more Fl Rs
B has to rationalise the facts and circumstances of each case
and then apply the test of 'sameness' to find out whether
both FIRs relate to the same incident and to the same
occurrence, are in regard to incidents which are two· or
more parts of the same transaction or relate completely
c to two distinct occurrences. If the answer falls in the first
category, the second FIR may be liable to be quashed.
However, in case the contrary is proved, whether the
version of the second FIR is different and they are in
respect of two different incidents/crimes, the second FIR
D is permissible, This is the view expressed by this Court
expressed in the case of Babu Babubhai v. State of
Gujarat and Ors. [(2010) 12 SCC 254]. This judgment
clearly spells out the distinction between two Fl Rs relating
to the same incident and two FIRs relating to different
E incident or occurrences of the same incident etc.
24. To illustrate such a situation, one can give an example
of the same group of people committing theft in a similar
manner in different localities falling under different
jurisdictions. Even if the incidents were committed in
F
close proximity of time, there could be separate FIRs and
institution of even one stating that a number of thefts had
been committed, would not debar the registration of
another FIR. Similarly, riots may break out because of
the same event but in different areas and between different
G people. The registration of a primary FIR which triggered
the riots would not debar registration of subsequent Fl Rs
in different areas. However, to the contra, for the same
event and offences against the same people, there cannot
be a second FIR. This Court has consistently taken this
H view and even in the case of Chirra Shivraj v. State of
YANAB SHEIKH@ GAGU v. STATE OF WEST 1179
BENGAL [SWATANTER KUMAR, J.]
Andhra Pradesh [(2010) 14 SCC 444], the Court took the A
view that there cannot be a second FIR in respect of same
offence/event because whenever any further information is
received by the investigating agency, it is always in
furtherance of the First Information Report."
B
12. In light of the above settled principle, we are unable to
accept that Ex.1/3 was a second FIR with regard to the same
occurrence with similar details and was hit by Section 162 of
the Code. On the contrary, Ex.7 was not a First Information
Report upon its proper construction in law but was a mere C
telephonic information inviting the police to the place of
occurrence. Thus, we have no hesitation in rejecting this
contention raised on behalf of the appellant.
13. Equally without merit is the contention that the case of
the prosecution must fail as the copy of the FIR had been sent D
to the Court after ten days of the registration of the FIR. The
learned counsel appearing for the appellant stated that the FIR
was registered on 19th December, 1984 but was sent to the
Court of the Magistrate on 29th December, 1984. He pointed
out the Entry No.793/1984 in this regard. The said G.R. Entry E
is not the entry sending the First Information Reportto the Court.
The document shown by the learned counsel for the appellant
is neither the copy of the FIR nor does it contain any
acknowledgment of the Court. It is merely a note of the case
proceedings as to what steps have been taken by the F
Investigating Officer and was signed by the Investigating Officer
on 19th December, 1984 itself. The learned counsel appearing
for the appellant has not pointed out any other document from
the record which could substantiate this contention raised on
behalf of the appellant. The argument is entirely misconceived G
and is not based on any record of the case and is thus, rejected.
14. The next contention raised on behalf of the appellant
that we are to deal with is that the prosecution should have
examined all witnesses without exception. The fact that the H
1180 SUPREME COURT REPORTS [2012] 13 S.C.R.
A prosecution failed to examine PW8, PW9 and PW10 itself
renders the prosecution story feeble. It is correct that in the
present case, PW8, PW9 and PW1 O were produced as
witnesses before the Court. After recording their introductory
part in the examination-in-chief, the prosecution gave up these
B witnesses as having been won over and tendered them for
cross-examination. The Court in its order dated 3rd July, 1992
recorded this aspect and also mentioned that the witnesses
have been cross-examined by the defence. In view of this
position, it cannot be said that the defence of the accused has
c suffered any prejudice as a result of non-examination of these
three witnesses.
15. It is interesting to note that PW8, Yamin in his cross-
examination admitted that he was examined by the Investigating
Officer and also that he had stated before the daroga babu
D (Investigation Officer) that on the date of the incident, since
morning he was drawing water from Baro Lauria Pukur through
a pump set taken on hire from Humayon Kabir, PW?. No further
questions were put to this witness by the accused. Whatever
he stated in his cross-examination, to some extent, supports
E the case of the prosecution. It proves that the incident occurred
on that day, pump was taken on hire and people of the village
during the day were drawing water from the Baro Lauria Pukur.
It is, thus, clear that non-examination of these witnesses has
neither prejudiced the case of the prosecution nor will it be of
F any serious advantage to the accused. For this purpose,
reliance has been placed upon the judgment of this Court in
the case of Masa/ti v. State of U. P. [Al R 1965 SC 202] where
the Court held that it is undoubtedly the duty of the prosecution
to lay before the Court all material evidence avaiiable which is
G necessary for unfolding its case.
16. In the case of Masalti (supra), the judgment relied upon
by the learned counsel for the appellant, this Court while making
it clear that duty lies upon the prosecution to examine all material
H
YANAB SHEIKH@ GAGU v. STATE OF WEST 1181
BENGAL [SWATANTER KUMAR, J.]
witnesses clearly stated the situation where the witnesses may A
not be examined because they have been won over, terrorised
and they may not speak the truth before the court. The court in
paragraph 12 held as under:
"12. Int~e present case, however, we are satisfied that 8
there is np substance in the contention which Mr Sawhney
· seeks to· raise before us. It is not unknown that where
serious qffences like the present are committed and a
large nu ' ber of accused persons are tried, attempts are
made eit er to terrorise or win over prosecution witnesses, C
and if the prosecutor honestly and bona fide believes that
some of is witnesses have been won over, it would be
unreason ble to insist that he must tender such witnesses
before t~e court. It is undoubtedly the duty of the
prosecuti n to lay before the court all material evidence
0
available o it which is necessary for unfolding its case; but
it would e unsound to lay down as a general rule that
every wit~ess must be examined even though his evidence
may not ~e very material or even if it is known that he has
been wo~ over or terrorised. In such a case, it is always
open to tre defence to examine such witnesses as their E
witnesses and the court can also call such witnesses in the
box in the interest of justice under Section 540 CrPC. As
we have already seen, the defence did not examine these
witnesses and the Court, after due deliberation, refused
to exercise its power under Section 540 CrPC. That is one F
aspect of the matter which we have to take into account."
17. Basruddin, admittedly was not produced before the
Court. The defence also did not summon this witness. Even if
for the sake of arguments, it is assumed that Basruddin, if G
produced would have spoken the truth, that necessarily does
not imply that he would not have supported the case of the
prosecution. Even if we give some advantage to the case of
the defence, for the reason that this witness has not been
· produced, even then by virtue of the statement of three other H
•
1182 SUPREME COURT REPORTS [2012] 13 S.C.R.
A witnesses, PW1 , PWS and PW6, attendant circumstances and
the statement of PW14, the prosecution has been able to bring
home the guilt of the accused.
18. We must notice at this stage that it is not always the
quantity but the quality of the prosecution evidence that weighs
8
with the Court in determining the guilt of the accused or
otherwise. The prosecution is under the responsibility of
bringing its case beyond reasonable doubt and cannot escape
that responsibility. In order to prove its case beyond reasonable
C doubt, the evidence produced by the prosecution has to be
qualitative and may not be quantitative in nature. In the case
of Namdeo v. State of Maharashtra [(2007) 14 SCC 150],
the Court held as under:
"28. From the aforesaid discussion, it is clear that Indian
D legal system does not insist on plurality of witnesses.
Neither the legislature (Section 134 of the Evidence Act,
1872) nor the judiciary mandates that there must be
particular number of witnesses to record an order of
conviction against the accused. Our legal system has
E always laid emphasis on value, weight and quality of
evidence rather than on quantity, multiplicity or plurality of
witnesses. It is, therefore, open to a competent court to fully
and completely rely on a solitary witness and record
conviction. Conversely, it may acquit the accused in spite
F of testimony of several witnesses if it is not satisfied about
the quality of evidence. The bald contention that no
conviction can be recorded in case of a solitary
eyewitness, therefore, has no force and must be
negatived."
G
19. Similarly, in the case of Bipin Kumar Monda/ v. State
of West Bengal (2010) 12 SCC 91, this Court took the view,
"..in fact, it is not the number and quantity but the quality that is
material. The time-honoured principle is that evidence has to
H be weighed and not counted. The test is whether evidence has
YANAB SHEIKH@ GAGU v. STATE OF WEST 1183
BENGAL [SWATANTER KUMAR, J.]
a ring of truth, is cogent, trustworthy and reliable." A
20. Facts of the present case, seen in light of the above
principles, makes it clear that the Court is primarily concerned
and has to satisfy itself with regard to the evidence being
· reliable, trustworthy and of a definite evidentiary value in 8
accordance with law. PW1, PW5 and PW6 have clearly
supported the case of the prosecution. Their statements,
examined in conjunction with the statement of PW11, the doctor
and the Investigating Officer, PW14, clearly establish the case
of the prosecution beyond any reasonable doubt. c
21. Najrul has been acquitted by the Trial Court. His
acquittal was not challenged by the State before the High Court.
In other words, the acquittal of Najrul has attained finality. While
~cording the acquittal of the accused Najrul, the Trial Court
recorded the following reasoning: D
"P.W.1 and PW-5 at the first blush did not say that
accused Yanob threw the bomb at Samim taking the same
from the bag of Nazrul and PW-1 stated that Yanob came
along with Nazrul with bomb in his hand. He did not say E
that Nazrul was carrying any cloth bag (Tholey).
It also transpired from the evidence of PW-5 that the
house of Yanob is about 200/250 cubits away from the
bank of the tank while that of Nazrul is at a further distance F
of 25/30 cubits from Yanob's house.
It might be that Nazrul was in the house of Yanob or
hearing shouts from the bank of the tank seeing Yanob
rushing back towards the bank of the tank with bombs in
his hand he came close behind him to see what was going G
on and at that point of time he might have a had a cloth
bag in his hand but that itself will not prove that he shared
the common intention with Yanob to kill Samim specially
when no such cloth bag containing bombs were recovered
from his possession. H
1184 SUPREME COURT REPORTS (2012] 13 S.C.R.
A I, therefore, on an appreciation of the entire evidence
on record feel no hesitation to hold and find accused
Yanob guilty to the charge under section 302 l.P.C. and
convict him thereunder and hold and find accused Nazrul
not guilty to the charge under section 302 read with section
B 34 of the Indian Penal Code and he is acquitted of that
charge under section 235(1) Cr.P.C. So far as the charge
under section 324 1.P.C. against accused Yanob for
causing voluntary hurt to Mahasin (PW-9) and Basir {C.S.
witness No. 10) is concerned there is no evidence that the
c aforesaid persons sustained and/or received any injury
from the splinters of the exploded bomb thrown by accused
Yanob. Nahasin when tendered by the prosecution even
during cross examination did not say that he sustained any
such injury. Basir as already observed had not been
D examined on the plea that he has been gained over and
the defence did not examine him as its witness to prove
that the prosecution narrative was not correct and the
incident took place in a different manner.
I, therefore, hold and find accused Yanob not guilty
E to the charge under section 324 of the 1.P.C. and he is
acquitted of that charge."
22. In the present case, we are concerned with the merit
or otherwise of the above reasoning leading to the acquittal of
F the accused Najrul. We are primarily concerned with the effect
. of this acquittal upon the case of the appellant-accused. The
Trial Court in its judgment clearly stated that there was direct
and circumstantial evidence against the accused implicating
him with the commission of the crime. Finding the appellant
G guilty of the offence, the Trial Court punished him accordingly.
Where the prosecution is able to establish the guilt of the
accused by cogent, reliable and trustworthy evidence, mere
acquittal of one accused would not automatically lead to
acquittal of another accused. It is only where the entire case
H of the prosecution suffers from infirmities, discrepancies and,
YANAB SHEIKH @ GAGU v. STATE OF WEST 1185
BENGAL [SWATANTER KUMAR, J.]
where the prosecution is not able to establish its case, the A
acquittal of the co-accused would be of some relevancy for
deciding the case of the other. In the case of Dalbir Singh v.
State of Haryana [(2008) 11 SCC 425), this Court held as
under:
B
"13. Coming to the applicability of the principle of
falsus in uno, falsus in omnibus, even if major portion of
evidence is found to be deficient, residue is sufficient to
prove guilt of an accused, notwithstanding acquittal of large
number of other co-accused persons, his conviction can be C
maintained. However, where large number of other persons
are accused, the court has to carefully screen the evidence:
"51 .... It is the duty of court to separate grain from
chaff. Where chaff can be separated from grain, it would
be open to the court to convict an accused notwithstanding D
the fact that evidence has been found to be deficient to
prove guilt of other accused persons. Falsity of particular
material witness or material particular would not ruin it from
the beginning to end. The maxim falsus in uno, falsus in
omnibus has no application in India and the witnesses E
cannot be branded as liars. The maxim falsus in uno, falsus
in omnibus (false in one thing, false in everything) has not
received general acceptance in different jurisdiction in
India, nor has this maxim come to occupy the status of rule
of law. It is merely a rule of caution. All that it amounts to, F
is that in such cases testimony may be disregarded, and
not that it must be disregarded. The doctrine merely
involves the question of weight of evidence which a court
may apply in a given set of circumstances, but it is not what
may be called 'a mandatory rule of evidence'. (See Nisar G
Ali v. State of U.P.) Merely because some of the accused
persons have been acquitted, though evidence against all
of them, so far as direct testimony went, was the sa111e does
not lead as a necessary corollary that those who have been
convicted must also be acquitted. It is always open to a H
1186 SUPREME COURT REPORTS [2012] 13 S.C.R.
A court to differentiate the accused who had been acquitted
from those who were convicted. (See Gurcharan Singh v.
State of Punjab.) The doctrine is a dangerous one,
specially in India, for if a whole body of the testimony were
to be rejected, because witness was evidently speaking
8 an untruth in some aspect, it is to be feared that
administration of criminal justice would come to a dead
stop. Witnesses just cannot help in giving embroidery to
a story, however, true in the main. Therefore, it has to be
appraised in each case as to what extent the evidence is
c worthy of acceptance, and merely because in some
respects the court considers the same to be insufficient
for placing reliance on the testimony of a witness, it does
not necessarily follow as a matter of law that it must be
disregarded in all respects as well. The evidence has to
D be sifted with care. The aforesaid dictum is not a sound
rule for the reason that one hardly comes across a witness
whose evidence does not contain a grain of untruth or at
any .rate exaggeration, embroideries or embellishment.
(See Sohrab v. State of M.P. 4 and Ugar Ahir v. State of
E Bihar.) An attempt has to be made to in terms of felicitous
metaphor, separate grain from the chaff, truth from
falsehood. Where it is not feasible to separate truth from
falsehood, because grain and chaff are inextricably mixed
up, and in the process of separation an absolutely new
F case has to be reconstructed by divorcing essential details
presented by the prosecution completely from the context
and the background against which they are made, the only
available course to be made is discard the evidence in
toto. (See Zwinglee Ariel v. State of M.P. and Ba/aka
Singh v. State of Punjab.) As observed by this Court in
G
State of Rajasthan v. Kalki 8 normal discrepancies in
evidence are those which are due to normal errors of
observations, normal errors of memory due to lapse of
time, due to mental disposition such as shock and horror
at the time of occurrence and these are always there
H
YANAB SHEIKH@ GAGU v. STATE OF WEST 1187
BENGAL [SWATANTER KUMAR, J.]
however honest and truthful a witness may be. Material A
discrepancies are those which are not normal and not
expected of a normal person. Courts have to label the
category to which a discrepancy may be categorised.
While normal discrepancies do not corrode the credibility
of a party's case, material discrepancies do so." B
23. The cumulative effect of the above discussion is that
the acquittal of a co-accused per se is not sufficient to result in
acquittal of the other accused. The Court has to screen the
entire evidence and does not extend the threat of falsity to c
universal acquittal. The Court must examine the entire
prosecution evidence in its correct perspective before it can
conclude the effect of acquittal of one accused on the other in
the facts and circumstances of a given case.
24. Neither we are able to see nor the counsel appearing D
for the appellant has been able to point out the contradictions
or discrepancies of any material nature in the statements of the
witnesses. PW6, cousin of the deceased has supported the
prosecution version. His statement is duly corroborated by
other witnesses. According to him he had gone to the Duni E
Gram Post Office and informed the police about the incident
over telephone, in response to which PW14 had come to the
place of occurrence. The incident took place at abo.ut 4.00 to
4.30 p.m. The telephonic information was given at about 9.00
p.m. and thereafter the FIR, Ex.1/3, was registered at about F ·
10.00 p.m. The question of delay in lodging the FIR in the
present case does not arise. Whatever time was taken in
registering the FIR stands fully explained by the statements of
PW6 and PW14.
G
25. Another very important aspect of the case is, that on
behalf of the accused, no question or suggestions were put to
the Investigating Officer on any of these aspects which are
sought to be raised before us in the present appeal. The
Investigating Officer could have easily explained the delay, if H
1188 SUPREME COURT REPORTS [2012] 13 S.C.R.
A any. No question was also directed to get an explanation on
record as to why 8asruddin was not examined and PW9 and
PW10 without examination were tendered for cross-
examination in Court. Absence of such questions on behalf
of the accused to the concerned witnesses would show that the
8 accused cannot claim any advantage and thus, cannot default
the case of the prosecution in this regard, particularly in the facts
of the present case.
26. For the reasons afore-stated, we find no merit in the
C present appeal. The same is dismissed accordingly.
8.8.8. Appeal dismissed.
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