NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 982 OF 2011
OMBIR SINGH ..... APPELLANT(S)
VERSUS
STATE OF UTTAR PRADESH AND
ANOTHER ..... RESPONDENT(S)
J U D G M E N T
SANJIV KHANNA, J.
The appellant Ombir Singh has challenged the judgment
dated 27.10.2009, by the Allahabad High Court, confirming his
conviction under section 302 read with Section 34 of the Indian
Penal Code, 1860 (‘IPC’, for short) and section 27 of the Arms Act,
1959, for the murder of Abhaiveer Singh Bhadoria @ Munna on
15.07.1999 at about 9 am. The appellant has also challenged the
sentence of life imprisonment and fine of Rs. 11,000/- imposed by
the Trial Court and confirmed by the High Court.
2. Homicidal death of Abhaiveer Singh Bhadoria @ Munna on
15.07.1999 at about 9 am near the house of one Shivraj Singh
Criminal Appeal No. 982 of 2011 Page 1 of 12
Sengar is not challenged and disputed before us. The said factum
has been proved, without any doubt, by documentary and ocular
evidence which we would notice below and also by the post
mortem report Ex.A/2 proved by Dr. Balbeer Singh (PW-3), who
was then working as a surgeon in the District Hospital Itawa. He
has deposed that Abhaiveer Singh Bhadoria @ Munna had died as
a result of as many as 5 firearm injuries that he had identified by
referring to five entry and five exit wounds. We shall subsequently
refer to Dr. Balbeer Singh’s (PW-3) testimony as to the time when
he had received the dead body of Abhaiveer Singh Bhadoria
@Munna and the details and documents made available to him by
the Investigation Officer.
3. The prime arguments on behalf of the appellant are that the
alleged eye-witnesses Dinesh Singh, the original complainant and
brother of the deceased Abhaiveer Singh Bhadoria @ Munna, who
has deposed as PW-1, and Mukesh Singh (PW-2) are unreliable,
and they had been set-up and planted by the prosecution. In
support, reliance is placed upon Dinesh Singh’s (PW-1) and
Mukesh Singh’s (PW-2) version that they had not seen anyone
from the field unit, though 14 photographs (Ex-13/C-1 to Ex-13/C13) were taken by the field unit, as proved and deposed to by
Criminal Appeal No. 982 of 2011 Page 2 of 12
Rakesh Babu and Omkar Singh who had testified as Court
Witnesses, CW-2 and CW-3. It was highlighted that the First
Information Report (‘FIR’, for short), purportedly recorded on the
details and information furnished by Dinesh Singh (PW-1), contrary
to the mandate of Section 157 of the Code of Criminal Procedure
(‘Code’, for short) was belatedly sent and received by the ilaka
magistrate (Chief Judicial Magistrate in this case) after 11 days,
and that the FIR was not sent to Dr. Balbeer Singh (PW-3) along
with the inquest papers. Thus, it was submitted that the FIR was
ante-timed and in the background of personal and political rivalry
between the parties, the appellant had been framed by the two
purported eye witnesses Dinesh Singh (PW-1) and Mukesh Singh
(PW-2), who were not present at the spot and therefore, were not
injured. The Trial Court had not accepted their testimonies against
Pramod Singh, who as per said witnesses was present with the
appellant and an equal participant in the occurrence, and was
acquitted. These contentions have been contested by the counsel
for the State, who has relied on the findings of the Trial Court
which were affirmed by the High Court.
4. There was undoubtedly a delay in compliance of section 157 of the
Code, as the FIR was received in the office of the Chief Judicial
Criminal Appeal No. 982 of 2011 Page 3 of 12
Magistrate with a delay of 11 days. Effect of delay in compliance of
Section 157 of the Code and its legal impact on the trial has been
examined by this court in Jafel Biswas v. State of West Bengal1
after referring to the earlier case laws, to elucidate as follows:
“18. In State of Rajasthan [State of Rajasthan v. Daud
Khan, (2016) 2 SCC 607 : (2016) 1 SCC (Cri) 793] in
paras 27 and 28, this Court has laid down as follows:
(SCC pp. 620-21)
“27. The delay in sending the special report was also
the subject of discussion in a recent decision
being Sheo Shankar Singh v. State of U.P. [Sheo
Shankar Singh v. State of U.P., (2013) 12 SCC 539 :
(2014) 4 SCC (Cri) 390] wherein it was held that before
such a contention is countenanced, the accused must
show prejudice having been caused by the delayed
dispatch of the FIR to the Magistrate. It was held,
relying upon several earlier decisions as follows: (SCC
pp. 549-50, paras 30-31)
‘30. One other submission made on behalf of the
appellants was that in the absence of any proof of
forwarding the FIR copy to the jurisdiction Magistrate,
violation of Section 157 CrPC has crept in and thereby,
the very registration of the FIR becomes doubtful. The
said submission will have to be rejected, inasmuch as
the FIR placed before the Court discloses that the same
was reported at 4.00 p.m. on 13-6-1979 and was
forwarded on the very next day viz. 14-6-1979. Further,
a perusal of the impugned judgments of the High Court
[Sarvajit Singh v. State of U.P., 2003 SCC OnLine All
1214 : (2004) 48 ACC 732] as well as of the trial court
discloses that no case of any prejudice was shown nor
even raised on behalf of the appellants based on
alleged violation of Section 157 CrPC. Time and again,
this Court has held that unless serious prejudice was
demonstrated to have been suffered as against the
accused, mere delay in sending the FIR to the
Magistrate by itself will not have any deteriorating (sic)
1 (2019) 12 SCC 560
Criminal Appeal No. 982 of 2011 Page 4 of 12
effect on the case of the prosecution. Therefore, the
said submission made on behalf of the appellants
cannot be sustained.
31. In this context, we would like to refer to a recent
decision of this Court in Sandeep v. State of
U.P. [Sandeep v. State of U.P., (2012) 6 SCC 107 :
(2012) 3 SCC (Cri) 18] wherein the said position has
been explained as under in paras 62-63: (SCC p. 132)
“62. It was also feebly contended on behalf of the
appellants that the express report was not forwarded to
the Magistrate as stipulated under Section 157 CrPC
instantaneously. According to the learned counsel FIR
which was initially registered on 17-11-2004 was given
a number on 19-11-2004 as FIR No. 116 of 2004 and it
was altered on 20-11-2004 and was forwarded only on
25-11-2004 to the Magistrate. As far as the said
contention is concerned, we only wish to refer to the
reported decision of this Court in Pala Singh v. State of
Punjab [Pala Singh v. State of Punjab, (1972) 2 SCC
640 : 1973 SCC (Cri) 55] wherein this Court has clearly
held that (SCC p. 645, para 8) where the FIR was
actually recorded without delay and the investigation
started on the basis of that FIR and there is no other
infirmity brought to the notice of the court then, however
improper or objectionable the delay in receipt of the
report by the Magistrate concerned be, in the absence
of any prejudice to the accused it cannot by itself justify
the conclusion that the investigation was tainted and the
prosecution insupportable.
63. Applying the above ratio in Pala Singh [Pala
Singh v. State of Punjab, (1972) 2 SCC 640 : 1973 SCC
(Cri) 55] to the case on hand, while pointing out the
delay in the forwarding of the FIR to the Magistrate, no
prejudice was said to have been caused to the
appellants by virtue of the said delay. As far as the
commencement of the investigation is concerned, our
earlier detailed discussion discloses that there was no
dearth in that aspect. In such circumstances we do not
find any infirmity in the case of the prosecution on that
score. In fact the above decision was subsequently
followed in Sarwan Singh v. State of Punjab [Sarwan
Singh v. State of Punjab, (1976) 4 SCC 369 : 1976 SCC
(Cri) 646] , Anil Rai v. State of Bihar [Anil Rai v. State of
Criminal Appeal No. 982 of 2011 Page 5 of 12
Bihar, (2001) 7 SCC 318 : 2001 SCC (Cri) 1009]
and Aqeel Ahmad v. State of U.P. [Aqeel Ahmad v. State
of U.P., (2008) 16 SCC 372 : (2010) 4 SCC (Cri) 11] ”’
28. It is no doubt true that one of the external checks
against antedating or ante-timing an FIR is the time of
its dispatch to the Magistrate or its receipt by the
Magistrate. The dispatch of a copy of the FIR “forthwith”
ensures that there is no manipulation or interpolation in
the FIR. [Sudarshan v. State of Maharashtra, (2014) 12
SCC 312 : (2014) 5 SCC (Cri) 94] If the prosecution is
asked to give an explanation for the delay in the
dispatch of a copy of the FIR, it ought to do so.
[Meharaj Singh v. State of U.P., (1994) 5 SCC 188 :
1994 SCC (Cri) 1391] However, if the court is convinced
of the prosecution version's truthfulness and
trustworthiness of the witnesses, the absence of an
explanation may not be regarded as detrimental to the
prosecution case. It would depend on the facts and
circumstances of the case. [Rattiram v. State of M.P.,
(2013) 12 SCC 316 : (2014) 1 SCC (Cri) 635] ”
19. The obligation is on the IO to communicate the
report to the Magistrate. The obligation cast on the IO is
an obligation of a public duty. But it has been held by
this Court that in the event the report is submitted with
delay or due to any lapse, the trial shall not be affected.
The delay in submitting the report is always taken as a
ground to challenge the veracity of the FIR and the day
and time of the lodging of the FIR.
20. In cases where the date and time of the lodging of
the FIR is questioned, the report becomes more
relevant. But mere delay in sending the report itself
cannot lead to a conclusion that the trial is vitiated or
the accused is entitled to be acquitted on this ground.
21. This Court in Anjan Dasgupta v. State of
W.B. [Anjan Dasgupta v. State of W.B., (2017) 11 SCC
222 : (2017) 4 SCC (Cri) 280] (of which one of us was a
member, Hon'ble Ashok Bhushan, J.) had considered
Section 157 CrPC. In the above case also, the FIR was
dispatched with delay. Referring to an earlier judgment
[Rabindra Mahto v. State of Jharkhand, (2006) 10 SCC
432 : (2006) 3 SCC (Cri) 592] of this Court, it was held
that in every case from the mere delay in sending the
Criminal Appeal No. 982 of 2011 Page 6 of 12
FIR to the Magistrate, the Court would not conclude that
the FIR has been registered much later in time than
shown.
Therefore, delay in compliance of Section 157 of the Code
cannot, in itself, be a good ground to acquit the appellant. Albeit,
this fact has to be considered when we examine the credibility of
the version of the eye-witnesses; in this case, the testimonies of
Dinesh Singh (PW-1) and Mukesh Singh (PW-2). We must also
keep in mind that there were questions raised by the complainant
and the family members of the deceased as to the manner in
which the investigation was carried by the first Investigation Officer
and his team, and therefore the investigation was subsequently
transferred to the Crime Branch- Crime Investigation Department
(‘C.B.C.I.D’, for short) on 01.08.1999.
5. While examining this contention, it may be pertinent to note that
Dr. Balbeer Singh (PW-3) in his testimony had referred to the Post
Mortem Report (Ex-A/2) and had stated that the post mortem was
conducted on 15.07.1999, at about 03:00 p.m. Dr. Balbeer Singh
(PW-3) had also referred to several papers that were sent to him
including the panchayatnama. The covering letter/document
exhibited as Ex-A/5, refers to as many as nine documents
attached with it. However, Dr. Balbeer Singh (PW-3) had deposed
Criminal Appeal No. 982 of 2011 Page 7 of 12
that the documents at serial number 6 and 7 were missing. In his
cross-examination, Dr. Balbeer Singh (PW-3) had categorically
stated that the seven documents including the panchayatnama
were received and signed by him. The panchayatnama was the
reproduction of the first statement of Dinesh Singh (PW-1) that was
recorded by S.I. Nanhu Mal who had deposed as PW-7.
Interestingly, this PW-7 was not questioned as to delay in the
service of FIR. The FIR Ex-A/1 is a detailed one and refers to the
presence of Dinesh Singh (PW-1), Mukesh Singh (PW-2) and
Virendra Kumar Chaudhary at the time of the incident. It
eloquently describes the manner in which the murder was
committed. Dinesh Singh (PW-1) and Mukesh Singh (PW-2) were
subjected to intensive cross-examination. Dinesh Singh (PW-1)
and Mukesh Singh (PW-2) have identically testified that on
15.07.1999 at around 9 a.m., they along with the deceased
Abhaiveer Singh Bhadauriya@ Munna and Veerendra Kumar
Chaudhary came from Shastri crossing to station and halted their
TATA Sumo there. They walked towards the house of one Shivraj
Singh Sengar. Since it was the deceased who wanted to meet
Shivraj Singh Sengar, he took the lead and was 18 steps (kadam)
ahead of them. The deceased was stopped, near the government
tap (Nal) which was installed near the house of Shivraj Singh
Criminal Appeal No. 982 of 2011 Page 8 of 12
Sengar, by the appellant Ombir Singh, his brother Shiv Veer Singh,
and Roopesh Singh @ Rocky who had rifles in their hands, and
Pramod Singh (acquitted by the trial court) who had a countrymade revolver (tamancha) with him. Shiv veer Singh, the brother
of the appellant shouted--“saala bohot mukadmebaaz banta hai,
roz-roz stay le aata hai, ye jail nhi jayega. Is saale ko jaan se maar
do”, then all of them opened fire, with their arms, upon the
deceased Abhaiveer Singh Bhadauriya@ Munna who fell down
after receiving the shots. The accused party had threatened
Dinesh Kumar (PW-1), Mukesh Singh (PW-2) and Veerendra
Singh who then fled through the western street viz. to the direction
from where they came from. We have examined their testimonies
and find that they had correctly identified the appellant, and also
narrated the motive, which would be a corroborative factor. The
clothes worn by Dinesh Singh (PW-1) and Mukesh Singh (PW-2)
were seized and as per the Chemical Examination Report
presence of human blood was ascertained. In our opinion, the
Trial Court and the High Court have correctly relied upon their
ocular evidences. The testimony of Head Constable Maujan Singh
(PW-6), who was posted as a shadow to guard the appellant
Ombir Singh, clearly mentions that on 15.07.1999 i.e. on the date
of incidence, he had visited the residence of the appellant at 06:45
Criminal Appeal No. 982 of 2011 Page 9 of 12
a.m. and the appellant was not present. He was informed that the
appellant had gone out. It may be noted that the occurrence had
taken place at 9:00 a.m. on 15.07.1999 and the appellant had
absconded after the incidence and was arrested on 22.07.1999.
Thus, we are not convinced and would reject the argument that the
appellant should be acquitted for non-compliance of section 157 of
the Code.
6. As to the field unit, their presence cannot be doubted as is clear
from the statement of Rakesh Babu (CW-2) and Omkar Singh
(CW-3). They had taken photographs exhibited 13/C-1 to 13/C-13.
Ambiguity as to the presence of the field unit and to the
photographs primarily arises from the testimonies of Dinesh Singh
(PW-1) and Mukesh Singh (PW-2) who had not confirmed their
presence and the photographs, but this can easily be explained as
the said witnesses had recently witnessed the murder of Abhaiveer
Singh Bhadoria @ Munna, brother of Dinesh Singh (PW-1), by
atleast 5 bullet shots that had hit the deceased and pierced his
body. Moreover, a witness would not be aware about the difference
between an officer of field unit and officers attached to the Police
Station. Similarly, the fact that the field unit had not recorded the
name of the deceased in the proceedings, in our opinion, is
inconsequential for these details are duly mentioned in the
Criminal Appeal No. 982 of 2011 Page 10 of 12
panchayatnama and other documents which were prepared on the
same day i.e. 15.07.1999 and were sent to Dr. Balbeer (PW-3)
who had conducted the post mortem. The lapse on the part of the
field unit in non-mentioning the name of the deceased would not
justify an order of acquittal. Notably, the field unit stayed at the spot
from 10:50 a.m. till 02:00 p.m., which would indicate that nonmentioning of the name of the deceased was an error and does
not imply that the name of the deceased was unknown, given the
fact that the post-mortem was conducted on the same day. The
murder had taken place in a residential locality and the deceased
was a well-known person and a local politician. There is deposition
of a police officer, namely Hardeo Bahadur Singh (PW-5), as to the
presence of huge crowd assembled at the spot. We would,
therefore, reject the contention that the field unit had not recorded
the name of the deceased as it was unknown and therefore the
presence of Dinesh Singh (PW-1) and Mukesh Singh (PW-2) was
doubtful.
7. Further, the acquittal of Pramod Singh by the Trial Court was for
the reason that he was supposed to have used tamancha (a local
firearm), but the police had not recovered the empty cartridges or
the pellets from the spot. Pertinently, the Post Mortem Report also
does not refer to any pellet injuries. Thus, Pramod Singh was given
Criminal Appeal No. 982 of 2011 Page 11 of 12
a benefit of doubt. However, the Trial Court, on the basis of the
evidence on record, had convicted the appellant both under
section 302 read with Section 34 IPC and section 27 of the Arms
Act, for the murder of Abhaiveer Singh Bhadoria @ Munna. The
appellant is not entitled to the same benefit.
8. In view of the above, we do not find any merits in the present
appeal and the same is dismissed confirming the conviction and
sentence of the appellant under Section 302 read with Section 34
of the Indian Penal Code with Section 27 of the Arms Act.
......................................J.
(N.V. RAMANA)
......................................J.
(MOHAN M. SHANTANAGOUDAR)
......................................J.
(SANJIV KHANNA)
NEW DELHI;
MAY 26, 2020.
Criminal Appeal No. 982 of 2011 Page 12 of 12
