BRAHM SWAROOP & ANR. v. STATE OF U.P

Citation: [2010] 15 S.C.R. 1

Court: Supreme Court of India

Bench: P. SATHASIVAM, B.S. CHAUHAN

Case summary

BRAHM SWAROOP & ANR. v. STATE OF U.P.pdf

Judgment text

[201 O] 15 (ADDL. ) S. C. R. 1 BRAHM SWAROOP & ANR. V. STATE OF U. P. (Criminal Appeal No. 1235 of 2005) OCTOBER 26, 2010 [P. SATHASIVAM AND DR. B. 5. CHAUHAN, JJ. ] Penal Code, 1860 - ss. 302134 and 307134 - Prosecution under - 6 accused causing death of 4 persons - Trial court convicted accused Nos. 2 and 3 u/s. 302! 34_J3lld accused Nos. 1 and 4 ulss. 302134 and 307134 -Accused Nos. 5 and 6 acquitted of all the charges i. e. uls. 148, 302, 149, 307, 396, 424 /PC and s. 25 of Arms Act - High Court confirming the conviction order and setting aside the acquittal order, convicted accused Nos. 5 and 6 u/ss. 302134 and 307134 and o upheld the acquittal uls. 25 of Arms Act - On appeal, held: In view of the trustworthy evidence of the injured eye-witness and other eye-witnesses, conviction of the accused persons is justified - Acquittal u/s. 25 was correct - Arms Act, 1959 - s. 25. Code of Criminal Procedure, 1973 - s.

174 - Inquest report - Evidentiary value of - Held: Inquest report cannot be treated as substantive evidence - It can be utilized only for contradicting the evidence of witnesses of the inquest - Omissions in the inquest report are not sufficient to put the prosecution out of court. Witnesses:· Evidence of witnesses - Discrepancies in - Effect of - Held: Minor discrepancies which do not shake the basic version of the prosecution case, cannot itself prompt the court to reject the evidence in its entirety. Eye-witness - Evidentiary value of - Held: Evidence of eye-witnesses cannot be discarded if their names do not figure in the inquest report - If the evidence of eye-witnesses is credible, question of motive becomes irrelevant - Motive.

Related witness - Evidentiary value of - Held: Relationship of the witness with the deceased is not a factor 8 which effects his credibility - However, in such cases the court has to adopt a careful approach and analyse the evidence so as to find out its credibility. Injured witness - Evidentiary value of - Held: Generally such witness is considered to be reliable - Convincing evidence is required to discredit an injured witness. Criminal Trial - Delay in sending FIR to the Magistrate - Effect of - Held: An unexplained delay by itself may not be fatal. 0 Appeal - Appeal against acquittal - Interference with - Scope of - Discussed. Appellants-accused, alongwith other accused, were prosecuted for having caused death of 4 persons. The prosecution case was that deceased No. 1 had an enmity with the family of accused No. 1. On the day of the incident, accused Nos. 1 to 6 surrounded the deceased persons and the informant (PW1), and started firing at them with their respective weapons.

Deceased No. 1 died on the spot. Deceased Nos. 2 and 4 sustained serious injuries and as a result, became unconscious. Deceased No. 3 and PW1 also sustained injuries. Accused No. 5 took away the rifle of deceased No. 2 and accused No. 6 took away the licensed gun of one 'G' who had kept the same in his jeep. PW2 and one 'S' were also the eyewitnesses to the incident. Deceased Nos. 2, 3 and 4 later succumbed to the injuries. The trial court acquitted accused Nos. 5 and 6 of all the charges i. e. u/ss. 148, 302, 149, 307, 396 and 424 IPC and u/s. 25 of the Arms Act, 1959. Accused Nos. 3 and 2 were convicted for the offence punishable u/s. 302/34 IPC and were awarded death sentence. Accused Nos. 1 and 4 were convicted for the offences punishable u/s. 302/34 and 307/34 and were awarded imprisonment for life. Accused persons as well · as the State filed appeals before the High Court against the orders of conviction and acquittal respectively.

The High Court dismissed the appeals filed by the accused persons with the modification that the death sentence was altered to life imprisonment. Allowing the appeal filed by the State, the High Court convicted accused Nos. 5 and 6 for the offences punishable u/ss. 302/34 and 307/ 34 IPC and awarded life imprisonment. In the instant appeals, the appellant-accused contended that the prosecution did not disclose the genesis of the case correctly; that the inquest was manipulated; that the use of the weapons alleged were not established; that there was delay in sending the special report to the Magistrate; that the deceased Nos.

2 and 4 were history-sheeters and had large number of enemies, and thus there was possibility of somebody else having killed them; that the evidence of the first informant could not be relied on as he could not tell the names of fathers of PWs 5 and 6; that the prosecution failed to examine independent witnesses; and that reversal of the acquittal order of accused Nos. 5 and 6 by the High Court was unjustified. Dismissing the appeals, the Court HELD: 1. 1. Evidence of eye-witnesses can not be discarded if their names do not figure in the inquest report prepared at the earliest point of time. The object of the proceedings u/s. 174 Cr. PC is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings i. e.

the inquest report is not the statement of any person wherein all the names of the persons accused must be mentioned. Omissions in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest. [Para 7] [20-G-H; 21-A-B] 0 Podda Narayana and Ors. v. State of Andhra Pradesh AIR 1975 SC1252; Khujji v. State of Madhya Pradesh AIR 1991 SC 1853; Georgeand Ors. v. State of Kera/a and Anr. (1998) 4 SCC 605; Shaikh Ayub v. State of Maharashtra (1998) 9 SCC 521; Suresh Rai v. State of Bihar (2000) 4 SCC 84; Amar Singh v. Ba/winder Singh and Ors.

(2003) 2 SCC 518; Radha Mohan Singh alias Lal Sahab and Ors. v. State of Uttar Pradesh (2006) 2 SCC 450; Aqeel Ahmad v. State of UttarPradesh AIR 2009 SC 1271 - relied on. 1. 2 Even where, the attention of the author of the inquest is drawn to the alleged discrepancy, overwriting, omission or contradiction in the inquest report and the author in his deposition has also admitted that through a mistake he omitted to mention the crime number in the inquest report, just because the author of the report had not been diligent did not mean that reliable and clinching evidence adduced by the eye-witnesses should be discarded by the court. [Para 9] [21-G-H; 22-A] Dr. Krishna Pal and Anr. v. State of Uttar Pradesh (1996) 7 sec 194 - relied on 1. 3 In the instant case, it cannot be said that any omission or discrepancy in the inquest is fatal to the prosecution's case and such omissions would 8 necessarily lead to the inference that FIR is ante-timed. The Sub Inspector (PW.

7) had denied the suggestion made by defence that till the time of preparing the report, the names of the accused persons were not available. He further stated that the column for filling up the nature of weapons used in the crime was left open as it could be ascertained only by the Doctor what weapons had been used in the crime. [Para 1O] [22-B-C] Bairam Singh and Anr. v. State of Punjab (2003) 11 SCC 286; State of Rajasthan v. Teja Singh and Ors. (2001) 3 SCC 147; Ramesh Baburao Devaskar and Ors. v. State of Maharashtra (2007) 13 SCC 501 ; Sarvesh Narain Shukla v. Daroga Singh and Ors. AIR 2008 SC 320; Aqeel Ahmad v. State of Uttar Pradesh AIR 2009 SC 1271 - relied on. Badam Singh v. State of M. P. (2003) 12 SCC 792 referred to. 2.

1 The report to the Magistrate is indispensable and absolute and it must be sent at the earliest, promptly and without any undue delay as the purpose is to avoid the possibility of improvement in the prosecution's case and the introduction of a distorted version by deliberations and consultation and to enable Magistrate concerned to keep a watch on progress of investigation. However, no rule of universal application can be laid down that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable. It would depend upon the facts of each case. If there has been some lapse on the part of the Investigating Officer that would not affect the credibility of the prosecution's witnesses. In case the prosecution offers a satisfactory explanation for the delay, the court has to test it.

An unexplained delay by itself may not be fatal, but it is certainly a relevant aspect which can be taken note of while considering the role of the accused persons for the offence. [Paras 15 and 16] [23-F-H; 24-A-D] 2. 2 In the instant case, the prosecution had not been asked to explain the delay in sending the special report. More so, the plea that the FIR was ante-timed, cannot be accepted in view of the evidence available on record which goes to show that the FIR had been lodged promptly within 20 minutes of the incident as the Police Station was only 1 k. m. away from the place of occurrence and names of all the accused had been mentioned in the FIR. [Para 18] (25-B] State of Kera/a v. Anilachandran @ Madhu and Ors. AIR 2009 SC 1866; Pala Singh v. State of Punjab AIR 1972 SC 2679; Sarwan Singh v. State of Punjab AIR 1976 SC 2304; PandurangChandrakant Mhatre and Ors. v. State of Maharashtra (2009) 10 SCC 773; Akbar Sheikh and Ors. v. State of WB. (2009) 7 sec 415 - relied on. 3.

Courts attach great importance to the prompt lodging of FIR and prompt interrogation of a witness u/ s. 161 Cr. P. C. as the same substantially eliminates the chances of embellishment and concoction creeping into the account contained therein. The prompt lodging of the FIR is proved from the chik report and the statement of the complainant u/s. 161 Cr. P. C. , which was recorded immediately after lodging the FIR. Any defect in the preparation of the inquest report by the investigating officer cannot lead to an inference that the FIR was not registered at the alleged time. The FIR contains all the essential features of the prosecution's case including names of eye-witnesses, time and place of incident, names of the victim, motive, name of the accused persons, weapons in their hands and manner of assault. Thus, all these things lend a seal of assurance not only to the presence of eye-witnesses at the place of the incident, but also to the participation of the appellants in the crime.

[Para 18] [25-F-H; 26-A] 4. The eye-witnesses have been cross-examined thoroughly, but nothing useful to the accused could be elicited from them. The testimony of the eye- witnesses is credible and worthy of confidence. If the evidence of the eye-witnesses is trustworthy and believed by the court, the question of motive becomes totally irrelevant. [Para 37] [35-E; 36-B] 5. The plea of the accused that the place of occurrence is not free from doubt as it has been stated by the Investigating Officer (PW. 10) that on receiving the phone call purported to have been made from the residence of D. 1 that dacoits had attacked them, he made an entry in the General Diary, and proceeded to that place and recorded the statement of some persons there; and that vehicle in which D. 2 and D. 4 were sitting did not have any blood marks and no blood stains were. found near the jeep and no pellets had been recovered from the said place, is not acceptable.

If this plea is accepted then the question of collecting the blood stained cement from the counter of the repairing shop could not arise. The 1. 0. (PW. 10) has stated that the tool box was found marked with splinters and badly damaged. More so, the statement of PW. 1, the informant, cannot be ignored as he has stated that 0. 3 was bleeding but blood did not fall on the ground as his clothes absorbed all the blood. He had further stated that D. 1 was sitting at the counter and there was quite a lot of blood from the wounds of D. 1 which fell on the ground and not on the counter. [Paras 19 and 20] [26-8-H] 6. Merely because the witnesses were close relatives of the deceased, that cannot be a ground to discard their evidence.

Their relationship to one of the parties is not a f phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. " 29.

In State of Uttar Pradesh v. Banne@ Baijnath &Ors. , (2009) 4 SCC 271, this Court gave illustrations of certain circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court's conclusions are contrary to evidence and documents on record; (iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) This Court must always give proper weight and consideration to the findings of the High Court; (Vi) This Court would be extremely reluctant in interfering With a case when both the Sessions Court and the High Court have recorded an order of acquittal. 30.

Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling 0 circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a routine manner, where the other view is possible should be avoided, unless there are good reasons for such interference. 31. The trial Court had acquitted two accused persons, namely, Brahm Swaroop (A. 5) and Jagdish Baggar (A. 6) mainly on the grounds that Attar Singh (PW. 1) did not tell the names of their respective fathers though it has so been mentioned in the FIR. Secondly, the prosecution could not explain how could the gun of Gyanendra be recovered from Brahm Swaroop (A.

5) if it was taken away by Jagdish Baggar (A. 6) and third ground had been that on 3. 6. 2000 a gun was recovered on the pointing out of Brahm Swaroop and he had admitted that he had used the gun in the crime. The said gun was sent for ballistic expert and the report (Ext. Ka-28) shows [DR. B. S. CHAUHAN, J. ] that the barrel of the gun did not have any residue and it had not been used recently. 32. So far as the first issue is concerned, the names of the father of two persons accused could not be given by Atar Singh, informant, (PW. 1) in the court, though mentioned in the 8 FIR. The question does arise as to whether, it is fatal to the case of the prosecution. In Sone Lal & Ors. v. State of UP. , AIR 1978 SC 1142, this Court while dealing with the issue held: "..... . informant was not aware of some of the contents of the FIR itself. ........

If the accused had any reason to think otherwise it was permissible for him to cross-examine the witness concerned and to lay the foundation for his own version. Lastly, it was suggested by the Sessions Judge that although the parentage of the accused Dularey was not mentioned in the FIR yet it was mentioned in the general diary which shows that the FIR was prepared subsequently. The High Court has clearly pointed out that it was fully explained that due to inadvertence the parentage of Dularey was not mentioned in the FIR but after being ascertained from the informant it was mentioned in the general diary. In these circumstances, therefore, the omission, if any, does not appear to be of any significance. These were the main reasons given by the Sessions Judge for disbelieving the FIR and, in our opinion, the High Court was right in pointing out that the reasons given by the Sessions Judge were both unsound and untenable. " 33. In the case of Rotash v.

State of Rajasthan, (2006) 12 SCC 64, this Court held: "........ The question is as to whether a person was implicated by way of an afterthought or not must be judged having regard to the entire factual scenario obtaining in the case. PW. 6 received as many as four injuries .... " Thus, in the fact-situation of the present case, this factor alone could not discount their involvement in the crime. More so, it is evident from the record that there was no suggestion to Atar Singh (PW. 1) that the names of the fathers of the two accused persons were mentioned at the instance of some other persons. He had not been asked as how the name of their father had been mentioned in the FIR. Such an inference could not have been drawn by the trial Court without giving an opportunity of explanation to Atar Singh (PW. 1 ). 34. On 3. 6. 2000, a gun was recovered on its being pointed out by appellant Brahm Swaroop and he stated that he had used the said gun in the commission of the crime.

However, the FSL report suggested that the gun had not been fired recently and from this the trial court concluded that the report did not corroborate the usage of the said gun in the crime and was a major flaw in the prosecution's case. The High Court held that this inference of the trial court was perverse. The case of the prosecution had all along been that Brahm Swarup was armed with a DBBL gun (which is a different type of gun from the said gun), and the said gun was not mentioned either in the FIR or in the testimonies of any of the prosecution witnesses. It was the statement of Brahm Swaroop that he had used the said gun in the crime. Further, this statement was inadmissible as Brahm Swaroop had made the statement to a police officer while he was in custody. 35. As far as the question of the other gun, which Jagdish Baggar took from Gyanendra and its recovery from Brahm Swaroop is concerned, both the Trial Court and the High Court disbelieved the recovery.

However, the High Court took the view that no benefit can be given to the accused persons on the ground that the recovery of the said gun was not worth to be believed. Even in the absence of the proper recovery of the said gun, there was enough evidence to prove beyond reasonable doubt, the guilt of the accused. The High Court took the view that in light of the fact that the eyewitness accounts [DR. B. S. CHAUHAN, J. ] and the medical evidence were in harmony with each other and clearly established the guilt of Brahm Swaroop and Jagdish Baggar, the decision of the Trial Court to acquit them could not be in consonance with the evidence available on record and thus, perverse. Thus, no fault can be found with the findings so recorded by the High Court in reversing their acquittal. . 36. We also do not find any force in the submissions made on behalf of the appellants that there could be no recovery of weapons on 3. 6. 2000 when the statement of Jagdish Baggar (A.

6) was recorded firstly on 7. 6. 2000 in the District Jail, for the reason that Shri N. K. Sharma, Sub-Inspector (PW. 7) has stated that Balwant (A. 2) and Brahm Swaroop (A. 5) were arrested on 3. 6. 2000 and they were having the gun with them. Balwant (A. 2) himself brought one Rifle out of gathered hay and therefore, the statement of N. K. Sharma (PW. 7) cannot be brushed aside as he has referred to the butt of the gun which was broken and the chap of which had fallen down. 37. We have, ourselves appreciated the evidence and reached conclusions similar to the High Court: (i) If the evidence of the eye-witnesses is trustworthy and believed by the court, the question of motive becomes totally irrelevant. (ii) Merely because the witnesses were close relatives to the deceased, that cannot be a ground to discard their evidence. (iii) Prosecution examined an injured witness. His presence on the spot cannot be doubted and his deposition is to be given due weightage.

(iv) In the facts and circumstances of the case there was no conflict between the direct evidence and medical evidence. Even if deceased were having some minor abrasions and contusions for the reason that they might have reacted to the assault and tried to save themselves, cannot create a doubt in the prosecution case about the presence of the witnesses. (v) The eye witnesses have been cross-examined thoroughly, but nothing useful to the accused could be elicited from them. The testimony of the eye witnesses is credible and worthy of confidence. (vi) The acquittal of Brahm Swaroop (A. 5) and Jagdish Baggar (A. 6) by the trial court cannot be held to be based on cogent reasons. The High court has rightly reversed their acquittals for offences under sections 302/34 and 307/34 IPC, but has rightly upheld their acquittal under Section 25 of the Arms Act. 38. In view of the above, we do not find any cogent reasons 0 to interfere with the impugned judgment and order of the High Court.

The appeals lack merit and, are accordingly, dismissed. K. K. T. Appeals dismissed.