1994 Supreme(SC) 1101

SUPREME COURT OF INDIA
 (BEFORE G.N. RAY AND FAIZAN UDDIN, JJ.)
SUSHIL AND OTHERS
Versus
STATE OF U.P.
Criminal Appeal No. 571 of 1983
Decided on 8-11-1994
 
Appeal partly allowed
Advocates appeared:
Sushil Kumar, Senior Advocate (R.P. Wadhwani, Advocate, with him) for the Appellants;
Suresh Sethi, Anis Ahmed Khan and A.S. Pundir, Advocates, for the Respondent.

Headnote:(i) Criminal Procedure Code, 1973 - Section 157 - Sending of F.I.R. to Magistrate empowered to take cognizance of offence Every delay in sending of report is not fatal to prosecution case unless some prejudice is shown to have been caused to accused by delay.

       Held: In the present case there is no material to indicate that there was any deliberate delay on the part of the investigating officer in dispatching the report. This apart, no prejudice is shown to have been caused to the accused persons by the said delay. On the contrary it is abundantly clear from the evidence on recorded that after the F.I.R. Ext. Ka-4 was record the Police Inspector Bhim Singh P.W. 6 immediately recorded the statement of the informant in the police station itself and at 8.30 AM. proceeded to the place of occurrence along with the A.S.I. Om Dutt Tyagi who prepared the Panchnama of the dead body at the spot, recorded the statement of the witnesses, prepared the site plan Ext. Ka-9 and seized the blood stained and simple earth from the place of occurrence as well as pajama and shoes of the deceased. He then made a search of the accused persons but they could not be traced out. These facts are not disputed and the same have been corroborated by the evidence of witnesses. It is thus clear that on 15.8.1980 the Police Inspector Bhim Singh and his A.S.I. Om Dutt Tyagi both remained busy in the investigation at the place of occurrence and thereafter in sending the dead body to the District Hospital for post mortem. In view of the facts and circumstances stated above and after going through the prosecution evidence which we shall discuss here-in-after we are satisfied that the report was lodged on the date and time mentioned in the F.I.R. Ext. Ka-4 and the sending of report by the prosecution was not delayed in order to introduce some improvement, embellishment or distorted version of the occurrence. (Para 7)

        (ii) Evidence - Murder case - Interested witnesses - Evidence of interested witnesses and those who are related to deceased cannot be thrown out simply for that reason - H evidence is found to be reliable and corroborated by independent evidence it has to be accepted as reliable.

       Held: The mere fact that the witnesses are either relative of the deceased or inimical towards the accused by itself is not a circumstance to throw away their evidence. But their evidence has to be closely scrutinised with care and caution and if found to be consistent and supportable from other independent source there is no reason to discredit their testimony. (para 10)

        (iii) Motive - When prosecution adduced positive evidence showing direct involvement of accused in crime, motive assumes importance. (para 8)

        (iv) Indian Penal Code, 1860 - Section 302/ 34 - Conviction under - Appeal - Knife assault - Independent evidence corroborated by medical evidence - Discrepancy with regard to actual part attributed to appellant T - Appellant T was not armed with any weapon nor he is alleged to have made any assault on deceased No evidence that T was aware of fact that co-accused Sand R were armed with knives Appellant T is entitled to benefit of doubt Conviction of co-accused maintained.

       Held: It is true that the informant Hoshiyar Singh, P.W. l has stated in his written report that Tapeshwar had caught hold the deceased around his waist. Hoshiyara, P.W. 2 who is an eyewitness and uncle of the deceased deposed that the appellant Tapeshwar had caught hold the deceased around his waist line from the front and he also deposed that when Tapeshwar raised both the hands, of the deceased the other two accused assaulted by their respective knives. As against this the independent eye witness Charan Singh, P.W. 3 simply stated that the appellant Tapeshwar had caught hold the hands of the victim Jai Prakash. Dhararnpal, P.W. 5 another eye witness also stated that the accused Sushil and Ram Niwas inflicted knife injuries when appellant Tapeshwar was catching hold the victim. There is thus some inconsistency and discrepancy with regard to the actual part attributed to the appellant Tapeshwar. The appellant Tapeshwar was not armed with any weapon nor he is alleged to have made any assault on the deceased. There is no evidence that Tapeshwar was aware of the fact that the co-accused Sushil and Ram Niwas were armed with knives which may be used by them in the crime. The prosecution evidence is also silent on the point whether these two accused took out the knives suddenly with or without the knowledge of Tapeshwar or came with knives openly and visible and inflicted knife injuries to the victim. In these facts and circumstances it is difficult to say with certainty as to what extent, if at all, the appellant Tapeshwar shared the common intention with the other two appellants Sushil and Ram Niwas. In view of these facts and circumstances in our opinion the appellant Tapeshwar is entitled for the benefit of doubt. (para 11)