Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 905 OF 2009
Yanab Sheikh @ Gagu … Appellant
Versus
State of West Bengal …
Respondent
J U D G M E N T
Swatanter Kumar, J.
1. The present appeal is directed against the judgment of the
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st
Calcutta High Court dated 21 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
learned counsel appearing for the parties, it is necessary for the
th
Court to notice the case of the prosecution in brief. On 19
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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 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 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. This
further aggravated their altercation and accused started
abusing them. Thereafter, accused Yanab suddenly went
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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. As a result thereof, Samim fell onto the ground, his
clothes got burnt and he died instantaneously. It is also the
case of the prosecution that Najrul had a cloth bag in his hand
and Yanab took out the bomb from that cloth bag and threw the
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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
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
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Lauria around 10.00 p.m. on 19 December, 1984. The
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 Incharge of
Rampurhat Police Station. SI, R.P.Biswas, then made an
endorsement, Ex.1/1 and sent the same through Constable
Sunil Dutta to Rampurhat Police Station for starting a case
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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
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,
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Ex.8, was prepared. The pump set was seized vide 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-
st
Divisional Hospital, Rampurhat on 21 January, 1985. Because
of transfer of PW14, the investigation of the case was taken up
by SI, N.R. Biswas. Later on the investigation was also
completed by PW15, S. Chatterjee, who had filed the charge
sheet. The accused persons faced the trial for the above-
mentioned offences before the Court of Sessions, which by a
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detailed judgment dated 18 September, 1992, held them
guilty of the offences and punished the accused Yanab as
follows:
“I, therefore, hold and find accused Yanob not
guilty to the charge under section 324 of the
I.P.C. and he is acquitted of that charge.
JUDGMENT
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.
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 any
license or permit.
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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 by C.S. witness NO.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 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 the I.E. Act and he is convicted
thereunder.
In the result the prosecution case
succeeds in part. 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 Sk is found guilty to the
charge u/s 302 of the I.P.C. and under section
9(b)(ii) of the I.E. Act and is convicted under
both the counts of charges. He is, however,
found not guilty to the charge under section
324 I.P.C. and is acquitted of that charge.
Sd/- P.K. Ghosh,
Addl. Sessions Judge,
Birbhum at Rampurhat,
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th
18 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 imprisonment
for life can be imposed in an offence under
section 302 I.P.C., the accused Yanob Sk is
sentenced to imprisonment for life for the
conviction under section 302 I.P.C. No separate
sentence is being passed for the conviction
under Section 9(b)(ii) of the I.E. Act.
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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.
Sd/- P.K. Ghosh,
Addl. Sessions Judge,
Birbhum at Rampurhat,
th
18 September,
1992.”
3. Aggrieved from the above judgment, the convicted
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:
1. Ex.1/3 is a second FIR of the occurrence. Ex.7, the G.D.
th
Entry No. 708, lodged at 2105 hrs. on 19 December, 1984
at Police Station Rampurhat by PW6 is, in fact, the FIR.
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The second FIR, Ex.1/3, 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.
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
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of Section 157(1) of the Code, on which account the
appellant would be entitled to a benefit.
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 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 appellant as well, because
without attributing and proving the role of Najrul, the
appellant could not be held guilty of committing any
offence.
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5. Lastly, it is contended that the offence squarely falls under
Section 304, Part II of the IPC inasmuch as 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.
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4. To the contra, it is contended by the learned counsel
th
appearing for the State that the accused was convicted on 18
September, 1992 in the present case. He was granted bail on
th
29 September, 1992 and was convicted for life in another case
under Sections 302/34 IPC in Case No. 44/1993 by the High
Court. PW1, PW5 and PW6 are the eye-witnesses to the
occurrence and the prosecution has been able to prove its case
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
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
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Section 162 of the Code are not attracted in the present case.
5. First and foremost, we may examine the question 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
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th
took place in the evening of 19 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
deceased. PW1, brother of the deceased, PW5, 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.
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
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murder in the village and they should come. When the police
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 R.P. Biswas.
th
7. According to PW14, on 19 December, 1984 at about the
0805 hours, he had received a telephonic information and noted
the information in General Diary No. 708 and thereafter he had
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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 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 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 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
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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 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
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and that Ex.1/3 was a second 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
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
writing, read over to the informant, signed by the informant and
a copy of the same be given to him, free of cost. Similar view
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,
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where the Court observed as under: -
“10. Certain facts have been rightly noted by
the High 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 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
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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 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
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-
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
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regards the identity of the accused or the nature of the injuries
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.....”
10. On this principle of law, we have no hesitation in stating
that the second FIR about the same occurrence between the
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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.
11. In the case of Anju Chaudhary v. State of U.P. & Anr.
[Criminal Appeal @ SLP(Crl.) No. 9475 of 2008 decided on the
th
6 December, 2012], this Court held :
“13. Section 154 of the Code requires that
every 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 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 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 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 conduct an investigation in the area
under his jurisdiction by the order of a
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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 Section 156 of the Code.
The specified Magistrate, in terms of Section
190 of the Code, is entitled to take cognizance
upon receiving 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 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 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
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 principle that there cannot
be two FIRs 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 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
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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
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 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 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, 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 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. Irshad Ali @ Deepak & Ors. (SLP
(Crl) No.9185-9186 of 2009 of the same date).
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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
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offence or is based upon 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 given case. In
the case of Ram Lal Narang v. State (Delhi
Administration) [(1979) 2 SCC 322], the Court
was 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 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 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 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 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 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
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every information relating to cognizable offence
and the second FIR was not hit by the principle
that it is impermissible to 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 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
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 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 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 case, 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 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
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previously taken cognizance has already
proceeded to some extent, he may take
fresh 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 further investigation by the
police would trench upon 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 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 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 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 facts
come to light.
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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
had been taken by the Magistrate. Neither
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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 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 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 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 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
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 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
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the 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 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
permission for the withdrawal of the case.
Though the investigating agency would
have done better if 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, therefore,
dismissed.”
17. In the case of M. Krishna v. State of
Karnataka [(1999) 3 SCC 247], this Court took
the view that even where the article of charge
was similar but for a different period, there 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 FIR and subsequent proceedings related
st
to a later period which was 1 August, 1978 to
th
25 July, 1978 under similar charges. It was
held that there was no provision which debar
the filing of a subsequent FIR.
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18. In the case of T.T. Antony v. State of
Kerala [(2001) 6 SCC 181], the Court explained
that an information given under sub-Section (1)
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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
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 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 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 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 unfortunate
result if it should be held possible to
interfere with those statutory rights
by an exercise of the inherent
jurisdiction of the court.”
JUDGMENT
24. This plenary power of the police to
investigate 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:
“[I]f no cognizable offence is
disclosed, and still more if no offence
of any kind is disclosed, the police
21
Page 21
would have no authority to undertake
an investigation….”
25. Where the police transgresses its
statutory 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 justice.
XXX XXX XXX
35. For the aforementioned reasons, the
registration of the second FIR under
Section 154 CrPC on the basis of the letter
of the Director 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 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 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 all other aspects the
impugned judgment of the High Court shall
stand set aside.”
JUDGMENT
19. The judgment of this Court in T.T. Antony
(supra) came to be further explained and
clarified by a three Judge Bench of this Court in
the case of Upkar Singh v. Ved Prakash [(2004)
22
Page 22
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
case of T.T. Antony v. State of Kerala
has not excluded the registration of a
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 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 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 alleging a different version
of the said incident.
JUDGMENT
18. This Court in Kari Choudhary v.
Sita Devi discussing this aspect of law
held:
“ 11 . Learned counsel adopted
an alternative 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 cannot be two FIRs
against the same accused in
23
Page 23
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 FIRs and
investigation 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.
208 of 1998 need be considered
as an information submitted to
the court 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 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.”
(emphasis supplied)
XXX XXX XXX
JUDGMENT
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
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 committed by the real accused
he takes the first opportunity to lodge
24
Page 24
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
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.
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-
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 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 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 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
JUDGMENT
25
Page 25
of a statement to be recorded by the
police in the course of the
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 FIRs cannot be
prohibited on the 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 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. 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 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.
JUDGMENT
22. In matters of complaints, the Court in the
case of Shiv Shankar Singh v. State of Bihar
(2012) 1 SCC 130 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 the complete
26
Page 26
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: -
“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
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 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.”
23. The First Information Report is a very
important document, besides that it sets the
machinery 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 evidence 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 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
JUDGMENT
27
Page 27
covered under Section 162 of the Code. The
Court in order to examine the impact of one or
more FIRs 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 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 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 FIRs relating to the same incident
and two FIRs relating to different 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 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 people. The registration of a primary
FIR which triggered the riots would not debar
registration of subsequent FIRs 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 view and even in the
case of Chirra Shivraj v. State of Andhra
Pradesh [(2010) 14 SCC 444], the Court took
JUDGMENT
28
Page 28
the 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.”
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
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 to
the Court after ten days of the registration of the FIR. The
JUDGMENT
learned counsel appearing for the appellant stated that the FIR
th
was registered on 19 December, 1984 but was sent to the
th
Court of the Magistrate on 29 December, 1984. He pointed out
the Entry No.793/1984 in this regard. The said G.R. Entry is not
the entry sending the First Information Report to the Court. The
document shown by the learned counsel for the appellant is
neither the copy of the FIR nor does it contain any
29
Page 29
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 by the Investigating Officer
th
on 19 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
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
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 PW10 were produced as witnesses
JUDGMENT
before the Court. After recording their introductory part in the
examination-in-chief, the prosecution gave up these witnesses
as having been won over and tendered them for cross-
rd
examination. The Court in its order dated 3 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
30
Page 30
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 (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,
PW7. No further questions were put to this witness by the
accused. Whatever he stated in his cross-examination, to some
extent, supports 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
JUDGMENT
these witnesses has neither prejudiced the case of the
prosecution nor will it be of any serious advantage to the
accused. For this purpose, reliance has been placed upon the
judgment of this Court in the case of Masalti v. State of U.P.
[AIR 1965 SC 202] where the Court held that it is undoubtedly
the duty of the prosecution to lay before the Court all material
evidence available which is necessary for unfolding its case.
31
Page 31
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
witnesses clearly stated the situation where the witnesses may
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. In the present case, however, we are
satisfied that there is no substance in the
contention which Mr Sawhney seeks to raise
before us. It is not unknown that where serious
offences like the present are committed and a
large number of accused persons are tried,
attempts are made either to terrorise or win
over prosecution witnesses, and if the
prosecutor honestly and bona fide believes that
some of his witnesses have been won over, it
would be unreasonable to insist that he must
tender such witnesses before the court. It is
undoubtedly the duty of the prosecution to lay
before the court all material evidence available
to it which is necessary for unfolding its case;
but it would be unsound to lay down as a
general rule that every witness must be
examined even though his evidence may not be
very material or even if it is known that he has
been won over or terrorised. In such a case, it is
always open to the defence to examine such
witnesses as their 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
JUDGMENT
32
Page 32
under Section 540 CrPC. That is one 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 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 witnesses, PW1, PW5
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
JUDGMENT
quantity but the quality of the 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 reasonable
doubt, the evidence produced by the prosecution has to be
qualitative and may not be quantitative in nature. In the case
33
Page 33
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 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 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 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.”
19. Similarly, in the case of Bipin Kumar Mondal v. State of
West Bengal (2010) 12 SCC 91, this Court took the view, “..in
JUDGMENT
fact, it is not the number and quantity but the quality that is
material. The time-honoured principle is that evidence has to
be weighed and not counted. The test is whether evidence has
a ring of truth, is cogent, trustworthy and reliable.”
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
34
Page 34
reliable, trustworthy and of a definite evidentiary value in
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.
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
recording the acquittal of the accused Najrul, the Trial Court
recorded the following reasoning:
“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
that Nazrul was carrying any cloth bag (Tholey).
JUDGMENT
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 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 on and
at that point of time he might have a had a cloth
35
Page 35
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.
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 I.P.C. and convict him thereunder
and hold and find accused Nazrul not guilty to
the charge under section 302 read with section
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 I.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
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 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.
JUDGMENT
I, therefore, hold and find accused Yanob
not guilty to the charge under section 324 of the
I.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 the
accused Najrul. We are primarily concerned with the effect of
this acquittal upon the case of the appellant-accused. The Trial
36
Page 36
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 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 of the prosecution
suffers from infirmities, discrepancies and where the
prosecution is not able to establish its case, the 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:
“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
maintained. However, where large number of other
persons are accused, the court has to carefully
screen the evidence:
JUDGMENT
“ 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 the fact that evidence
has been found to be deficient to prove guilt of
other accused persons. Falsity of particular
37
Page 37
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 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, 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 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
same does not lead as a necessary corollary
that those who have been convicted must also
be acquitted. It is always open to 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 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 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 be sifted with care. The
aforesaid dictum is not a sound rule for the
JUDGMENT
38
Page 38
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.
4
State of M.P. and Ugar Ahir v. State of 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 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 Balaka Singh v. State of
Punjab .) As observed by this Court in State of
8
Rajasthan v. Kalki 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 however
honest and truthful a witness may be. Material
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.”
JUDGMENT
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
39
Page 39
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 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
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 about 4.00 to
4.30 p.m. The telephonic information was given at about 9.00
JUDGMENT
p.m. 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.
25. Another very important aspect of the case is, that on
behalf of the accused, no question or suggestions were put to
40
Page 40
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
any. No question was also directed to get an explanation on
record as to why Basruddin 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 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
present appeal. The same is dismissed accordingly.
JUDGMENT
.…................................J.
[Swatanter Kumar]
.…................................J.
[Madan B. Lokur]
New Delhi;
December 13, 2012
41
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