1996 Supreme(SC) 690

1996(3) Supreme 168
SUPREME COURT OF INDIA
A.S. Anand and S.B. Majmudar, JJ.
Girish Yadav & Ors. -Appellants
versus
State of Madhya Pradesh -Respondent
Criminal Appeal No. 318 of 1988
with
Criminal Appeal Nos. 501 of 1988 and 63 of 1991
Decided on 29-3-1996

IMPORTANT POINTS
1. Supreme Court in appeals against conviction recorded by the Trial Court and as confirmed by the High Court usually and as a matter of course does not interfere with concurrent findings of fact based on appreciation of relevant prosecution evidence.
2. Once it is found that the FIR was promptly lodged after the incident and that set in motion the police machinery which started investigation on sopt immediately thereafter, it must be held that the contents of the FIR would reflect the first hand account of what had actually happened on spot and who were responsible for the offence in question.
3. Non-examination of neighbours as witnesses cannot be fatal to the prosecution case when it stands fully supported by acceptable eye-witness account.

Headnote:(i) Constitution of India-Article 136-Appeals on Special Leave-Scope-Concurrent findings of courts below against appellants-Challenged-Both the courts have placed implicit reliance on eye-witness account of prosecution witnesses-Powers of Supreme Court to interfere with concurrent findings of fact based on appreciation of relevant prosecution evidence.

       Held : As these are appeals pursuant to the leave granted under Article 136 of the Constitution of India and as an attempt is made in these appeals by learned senior counsel or the appellants to challenge concurrent findings of fact recorded by both the courts below against the appellants, it has to be kept in view that this Court in appeals against conviction recorded by the Trial Court and as confirmed by the High Court usually and as a matter of course does not interfere with concurrent findings of fact based on appreciation of relevant prosecution evidence. In the present case both the courts, the Trial Court as well as the High Court, have placed implicit reliance on eye-witness account of prosecution witnesses Badri, P.W. 1, Indu Tiwari, P.W 2 and Ganesh Patel, P.W. 5. Consequently unless the concurrent findings of fact reached by both the courts below are found to be unreasonable or are found to involve any error of law or they are shown to be against the weight of evidence, they would not be lightly interfered with by this Court in appeals on special leave. (Para 6)

       (ii) Indian Penal Code, 1860-Sections 148 and 302/149-Conviction under-Appeal against-Alleged ante-timing of FIR-PW2 promptly got recorded FIR by going to Police Station immediately after he saw attack by seven accused on his brother-Investigation on spot done after recording of FIR-Non-mentioning of names of accused in requisition application for post-mortem-Not fatal-Absence of proof regarding receipt of copy of FIR by Magistrate at the earliest-However, Kaimisanha entry itself mentioned that copy of FIR was being sent by Police Station to the concerned Magistrate-Under these circumstances, it could not be assumed that report would not have been sent to concerned Magistrate promptly.

       Held : Once it is found that the FIR was promptly lodged after the incident by witness P.W. 2 Indu Tiwari, and that set in motion the police machinery which started investigation on spot immediately thereafter, it must be held that the contents of the FIR would reflect the first hand account of what had actually happened on spot and who were responsible for the offence in question. (Para 9)

       (iii) Indian Penal Code, 1860-Sections 148, 302/149-Conviction under-Appeal-Prompt lodging of FIR-Version of eye-witnesses supporting prosecution case as revealed in FIR-Eye-witnesses clearly implicated all eight appellants in connection with crime of murder of deceased -They were not chance witnesses-Their names mentioned in FIR-Medical evidence supporting prosecution version regarding inflicting of injuries by accused on deceased-Witnesses residing in same locality-Merely because they were known to complainant it could not be held that they would depose falsely-No reason to falsely implicate accused-Eye-witness account well stood test of cross examination-Non-examination of neighbours-Not fatal-Concurrent findings of fact recorded against appellants fully reliable-No case for interference-Conviction recorded legally sustainable.

       Held : It is in the light of the prompt lodging of the FIR in the present case that the version of the eye-witness account supporting the prosecution case as revealed in the FIR has to be appreciated. As noted earlier both the courts have placed implicit reliance on the testimonies of Badri, P.W. 1, Indu Tiwari, P.W. 2 and Ganesh Patel, P.W. 5. We have carefully gone through their evidence and we find that their evidence has well stood the test of cross examination. They have clearly implicated all the eight appellants in connection with the crime of murder of deceased Gudda Tiwari. They could not be treated as chance witnesses. Their names were already revealed in the FIR Ex. P-1. In fact the version found in the FIR fully corroborates the eye-witness account of these witnesses. It is true that the name of accused No. 2 Vijay Patel is not mentioned but that omission also is well explained by P.W. 2 Indiu Tiwari who stated that he left the scene of offence after seeing the attack on his brother by these seven accused and it is also in evidence of other prosecution witnesses that accused No. 2 came later and hurled a bomb on the deceased. Consequently no infirmity can be found in the findings reached by both the courts below on the basis of this eye-witness account of these witnesses. Learned senior counsel for the appellants tried to urge that the injuries deposed to by these witnesses as allegedly inflicted by the appellants on the deceased do not fit in with the medical evidence. It is difficult to agree. Once we turn to the medical evidence we find that Dr. A.K. Yadav who had performed post mortem on deceased Gudda Tiwari has found 12 incised wounds on different parts of his body and there were burning injury on the back of the deceased. The whole back had turned black, black soot came out on rubbing by cotton. The eye-witness account clearly showed that the accused who had armed themselves with sharp cutting weapons like banka and pharsa had caused these injuries and the bomb injury which were caused by accused No. 2 is found to have left the burning injuries on the back of the deceased. It is, therefore, not possible to agree with the contention of learned senior counsel for the appellants that the medical evidence does not support the prosecution version regarding inflicting of injuries by the accused on deceased.

       (Para 10)

       Further held : Merely because one banka was found with loose handle 36 ft. away from the place of occurrence it could not be said that the eye-witness account of the assault by the accused on the deceased was in any way rendered suspect. Both the courts, therefore, were right in not placing any implicit reliance on this circumstance. It would also be possible to infer that once the accused ran away with the weapons one of the bankas might have been thrown aside by the fleeing accused. It is not as if any banka was found lying on spot near the dead body. (Para 12)

       (iv) Evidence-Murder case-Eye-witnesses account found acceptable-Non-examination of neighbours as witnesses-Not fatal to prosecution.

       Held : If the eye-witness account of the three witnesses referred to earlier was found acceptable by both the courts below and when that eye-witness account has well stood the test of cross examination, non-examination of other witnesses would pale into insignificance. It is also easy to visualise that witnesses who are not concerned with the deceased may like to safely keep away from police proceedings or proceedings before the court and only those who feel aggrieved by the assault of the accused on the deceased may be bold enough to come forward to offer themselves as witnesses. Non-examination of neighbours as witnesses, therefore, cannot be fatal to the prosecution case as it stands fully supported by acceptable eye-witness account as seen earlier. (Para 19)

       (v) Criminal Procedure Code, 1973-Section 319-Power of Court to implicate accused not charge- sheeted.

       Held : There is enough power with the court in a proper case to exercise its jurisdiction under Section 319 Cr. P.C. In the present case as we have seen earlier, the High Court had remanded the matter for reconsideration in the light of the evidence that may be recorded by the court and that is how after recording the evidence of eye-witnesses process was re-issued against these appellants. As the evidence recorded by the court showed that there was enough involvement of these accused in the commission of the offence and, therefore, they stood on the same pedestal as accused 1 to 4 they could not be said to have been wrongly proceeded against as accused under Section 319 Cr.P.C. (Para 15)