Sections 302, 376 and 201 of the Indian Penal Code, 1860 Pooja, a 4 year old girl, went missing on 22.5.2001. Her family members searched for her relentlessly and also reported the matter to the police. She was eventually found lying dead on the roof of a lonely house on 24.5.2001. Rohtash (PW.1), father of the deceased, submitted a written report (Ex.P-1) of the incident at Police Station, Kotputli and upon the receipt of such report, a case under Sections 302 and 201 IPC was registered, and investigation pertaining to the same also commenced. Thereafter, postmortem was performed on the dead body, necessary memos were drawn, and statements of witnesses were recorded. The appellant was arrested on 27.5.2001 and upon completion of the investigation, chargesheet was filed. = “Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.”= if the discrepancies are material it would be safer to err in acquitting than in convicting the accused. = a significant omission in the statement of a witness recorded under Section 161 Cr.P.C. may amount to a major contradiction.= Thus, we find force in the submissions advanced by Ms. Makhija, learned Amicus Curiae, that evidence produced by the prosecution had been very shaky and the chain of links connecting the appellant with the crime appears inconclusive. The circumstantial evidence is completely wanting in this respect. To accept the description of the evidence collected as flimsy, or no evidence would be too short for convicting the appellant for the offence, as many issues/circumstances virtually remained unexplained. In view of the above, we have no hesitation in holding that the prosecution failed to prove the case against the appellant beyond reasonable doubt and thus, he becomes entitled for benefit of doubt. Thus, the appeals succeed and are allowed. The conviction and sentence imposed on the appellant are set aside. The appellant be released forthwith unless wanted in some other case. Before parting with the case, we record our appreciation to Ms. Vibha Datta Makhija, Advocate who rendered invaluable service as Amicus Curiae in disposal of these appeals.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 931-932 of 2009
Raj Kumar Singh @ Raju @ Batya …Appellant
Versus
State of Rajasthan …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. These appeals have been preferred against the impugned
judgment and order dated 4.1.2008, passed by the High Court of
Rajasthan (Jaipur Bench) in D.B. Crl.A. Nos. 1250 and 1749 of 2003
by way of which, the High Court has dismissed the aforesaid appeals
and affirmed the judgment and order dated 5.8.2003 of the learned
Additional Sessions Judge (Fast Track) No. 1, Jaipur District in
Sessions Case No. 19 of 2002 by way of which, the appellant stood
convicted for the offences punishable under Sections 302, 376 and
Page 2
201 of the Indian Penal Code, 1860, (hereinafter referred to as `the
IPC’), and was awarded a sentence of life imprisonment alongwith a
fine of Rs.1,000/- under Section 302 IPC; 10 years rigorous
imprisonment alongwith a fine of Rs.1,000/- under Section 376 IPC,
and rigorous imprisonment of 5 years alongwith a fine of Rs.500/-
under Section 201 IPC, and in default of depositing such fine, to
further suffer rigorous imprisonment for a period of six months.
The
substantive sentences, however, were ordered to run concurrently.
2. As per the case of the prosecution, the necessary facts related to
the present case are as under:
A. Pooja, a 4 year old girl, went missing on 22.5.2001.
Her family
members searched for her relentlessly and also reported the matter to
the police.
She was eventually found lying dead on the roof of a
lonely house on 24.5.2001. 
Rohtash (PW.1), father of the deceased,
submitted a written report (Ex.P-1) of the incident at Police Station,
Kotputli and upon the receipt of such report, a case under Sections
302 and 201 IPC was registered, and investigation pertaining to the
same also commenced. 
Thereafter, postmortem was performed on the
dead body, necessary memos were drawn, and statements of witnesses
2Page 3
were recorded. 
The appellant was arrested on 27.5.2001 and upon
completion of the investigation, chargesheet was filed. 
B. The trial court concluded the trial and convicted the appellant
under Sections 302, 376 and 201 IPC, vide impugned judgment and
order dated 5.8.2003 and awarded the sentence as referred to
hereinabove .
C. Aggrieved, the appellant filed an appeal in the High Court
which was dismissed vide impugned judgment and order dated
4.1.2008.
Hence, these appeals.
3. Ms. Vibha Datta Makhija, learned Amicus Curiae, has
submitted that the circumstances relied upon by the prosecution have
not been satisfactorily established, and that additionally, the
circumstances said to have been established against the appellant do
not provide a complete chain that is required to prove the guilt of the
appellant. There are material contradictions in the depositions of
Rohtash (PW.1), Indira (PW.2), Kalawati (PW.3) and Naurang
(PW.4), who are father, mother, grandmother and grandfather of the
deceased, respectively. Their depositions have wrongly been relied
upon by the courts below, as no reliance can be placed on their
3Page 4
evidence. Moreover, the statements of the witnesses are self
contradictory, and the standard of proof required to convict a person
in a case of circumstantial evidence, has not been met either. The law
requires, that the circumstances relied upon in support of the
conviction must be fully established, and that the chain of evidence
furnished by those circumstances must be so complete, so as not to
leave any reasonable doubt for a conclusion, consistent with the
innocence of the accused. The circumstances from which the
conclusion of guilt is to be drawn, must not only be fully established,
but also be of a conclusive nature and consistent only with the
hypothesis of the guilt of the accused. They must not be capable of
being explained by way of any other hypothesis except the guilt of the
accused, and when all the said circumstances are collectively
considered, the same must lead only to the irresistible conclusion that
the accused alone is the perpetrator of the crime in question. Thus,
the appeals deserve to be allowed.
4. Per contra Ms. Pragati Neekhra, learned counsel appearing on
behalf of the State, has opposed the appeals, contending that the
judgments of the courts below do not warrant any interference. The
circumstances relied upon by the courts below stand fully established,
4Page 5
the chain of circumstances is complete, and every link in the said
chain indicates that the appellant alone, could be the accused. The
discrepancies in the evidence of the witnesses are so minor, that none
of the same go to the root of the case and disturb such a conclusion as
mentioned hereinabove. The medical evidence also fully supports the
ocular evidence, and there is no contradiction between the two. The
appellant had approached the family of the victim and asked them to
pay to him, a sum of Rs.2,000/-, as he would bring Pooja back to
them. The injuries found on the person of the deceased and the
appellant-accused co-relate him to the evidence relating to the
recoveries, clearly indicating that the appellant alone is guilty of the
offence. Thus, the appeal is liable to be dismissed.
5. We have considered the rival submissions made by the learned
counsel and perused the record.
There is no ocular version of the incident and the entire case of
the prosecution is based on circumstantial evidence.
6. The courts below have found the following circumstances
forming an incriminating chain against the appellant:
I. Conduct of the appellant.
5Page 6
II. False explanation given by the appellant.
III. Evidence relating to injuries on the person of the deceased.
IV. Evidence relating to injuries on the appellant.
7. The depositions with respect to the conduct of the appellant
have been considered by the courts below, and 4 witnesses (family
members of the deceased) have been examined in this respect. All 4
have deposed that the appellant had approached them and had asked
them for the payment of a sum of Rs.2,000/-, to bring Pooja home,
and this circumstance has thus been held to have been proved against
him.
8. We have also been taken through the evidence of the witnesses
on this aspect.
Rohtash (PW.1), the father of the deceased, has deposed that
they had reported the case to the police in the morning at around 8 O’
Clock as Pooja was found to be missing. The appellant had thereafter
arrived at around 4 O’Clock in the evening, and had asked Rohtash
(PW.1), to pay to him, a sum of Rs.2,000/-, stating that he would
bring Pooja back. They had informed the police about this fact while
lodging the FIR. In his cross examination, Rohtash (PW.1) admitted
6Page 7
that the issue of the appellant asking for a sum of Rs.2,000/- had not
been mentioned in the FIR. Then the witness himself voluntarily
deposed, that the sum of Rs.2,000/- was asked for after the said report
had already been written. He further deposed that he had never seen
the appellant before he had asked him for the said amount of
Rs.2,000/-. The witness also deposed that the police had not made
any inquiry from him in this regard, and then made a statement to the
contrary alleging that the police had questioned him vigorously. It
may also be pertinent to mention that in his deposition, Rohtash
(PW.1) was unable to mention the particular date on which the
appellant had approached his family, and had asked for a sum of
Rs.2,000/-.
9. Indira (PW.2), the mother of the deceased, Kalawati (PW.3),
grandmother and Naurang (PW.4), grandfather of Pooja (deceased)
had deposed that Rohtash (PW.1) had registered a report in the police
station at 8 O’Clock about the fact that their daughter Pooja had gone
missing and further deposed that, at about 4 O’Clock in the evening,
on the same day, one boy had come to her and had asked her to pay to
him a sum of Rs.2,000/-, as in return for the same he would bring
back her daughter. Indira (PW.2) identified the appellant in court as
7Page 8
the person who had asked to pay the said sum of Rs.2,000/-. All of
them have further deposed that he had been caught by them and had
been handed over to the police. In her cross-examination, she has
admitted that the appellant had also been beaten up by them, and
thereafter, had been handed over to the police on the same day.
If the evidence of the 4 witnesses on this very issue is carefully
examined, it becomes evident that material contradictions exist
therein, and that further, not only do such material contradictions
exist, but embellishments and improvements have also been made to
the version of events. In the event that the appellant had come to them
and asked them for money, and they had caught hold of him and
called the police, and the police had arrested him, there exists no
rational explanation as regards why such a pertinent fact has been
excluded from the FIR. Secondly, in case the witnesses i.e. the family
members of the deceased had caught hold of the appellant, why has
PW.4, grandfather of the deceased, deposed that the appellant was
shown to them immediately after his arrest, if the witnesses had in fact
caught hold of him, and had themselves handed him over to the
police, the question of the police showing the appellant to them could
not arise.
8Page 9
10. All recoveries were made on 24.5.2001, and the appellant was
identified as the accused only on the ground that four witnesses i.e.
PWs. 1 to 4, had deposed to the effect that he had asked them for a
sum of Rs.2,000/- to bring back their child. No one has explained
how the appellant was actually arrested. PWs.1 to 4 have made
categorical statements to the effect that when the appellant had asked
them for money to bring back the girl, they had caught hold of him
and handed him over to the police on 24.5.2001 itself. However, Gopi
Singh (PW.14), the Investigating Officer has made it clear that the
appellant had been arrested on 27.5.2001 by Ext. P-14, and that there
was no independent witness for the said arrest. An FIR was lodged on
24.5.2001 without naming any person, as the FIR itself reveals that
some one had killed Pooja and had dumped her in the abandoned
dharamshala.
Naurang (PW.4), grandfather of Pooja has deposed that the
police had shown the accused to them as soon as he was arrested.
Therefore, there exists a material contradiction as regards the issue of
the arrest of the appellant.
We have examined the original documents/records. There is
over-writing on the arrest memo and Gopi Singh (PW.14), the
9Page 10
Investigating Officer has admitted in his cross-examination that there
did in fact exist some over-writing underneath the signatures in Ext.
D-1, and that the same, i.e., the over-writing, did not bear his initials.
11. So far as the recovery of the clothes of the accused which were
recovered with blood and semen stains is concerned, there are
numerous contradictions. Hari Singh (PW.9), the constable who made
the said recoveries has deposed that on 27.5.2001, he had made the
recovery of a light brown shirt, a white coloured vest on which there
were blood like stains, one cream coloured underwear on which blood
like stains and semen stains were found. The same were recovered
from the appellant. Therefore, it is clear that the recoveries of the
clothes of the appellant were made on 27.5.2001, and not on
24.5.2001. If the appellant had in fact been arrested as per the version
of events narrated by PWs.1 to 4 on 24.5.2001, there would be no
occasion for the police to make the recovery of his clothes on
27.5.2001. The statement of Rohtash (PW.1) was recorded on
27.5.2001, though the same was shown as recorded on 24.5.2001, and
the statement of all other witnesses was recorded on 27.5.2001. It is
thus, difficult to understand how such a material discrepancy in the
evidence has been ignored by the courts below while convicting the
10Page 11
appellant. Exts.P-23 to P-39 are the relevant photographs. They do
not bear the signature of any person and therefore, it is difficult to
comprehend how these material exhibits were sent for FSL report.
The High Court has doubted and in fact disbelieved the
recovery of clothes at the instance of the appellant, and has remarked
that the evidence of such recovery was fabricated and false.
12. The postmortem report (Ex.P-21) revealed the following antimortem injuries on her body:
 “Body swollen, Abdomen distended, eyes protruded, lips
swollen, no maggots over body, skin pealed off here and
there, mouth semi opened, bleeding from both nostrils
and Lt. ear, PM rigidly absent due to second stage of
relaxer, PM lividity present over dependent parts of
body, back of chest presents and both buttocks blush
black, labia majora swollen and teared, hymen teared,
vaginal walls teared. Rectum protruding through
posterior vagina wall, posterior fornix ruptured.
In the opinion of Medical Board the cause of death
was neurogenic shock, coma due to head injury.”
13. As already described, the dead body of Pooja was subjected to
an autopsy by the Medical Board. Dr. Laxman Singh (PW.12)
deposed that the body was swollen, abdomen distended, eyes
protruding, lips swollen, no maggots over body, skin pealed off here
and there, mouth semi opened, bleeding from both nostrils and left
11Page 12
ear. PM rigidly absent due to second stage of relaxation, PM lividity
present over dependent parts of body, back of chest present and both
buttocks bluish black. Labia majora swollen and hymen torn. Vaginal
walls torn. Rectum protruding through posterior vaginal wall,
posterior fornix ruptured. The cause of death was neurogenic shock,
coma due to head injury. The testimony of Dr. Laxman Singh clearly
reveals that the innocent helpless soul Pooja was first subjected to
monstrous sexual assault, and was then mercilessly killed by inflicting
injuries on her head so that there remains no direct evidence against
culprit.
14. The appellant after his arrest on 27.5.2001 was medically
examined by Dr. Laxman Singh (PW.12) on May 28, 2001 and vide
his medical examination report (Ext. P-22), an abrasion of the size of
0.2 x 0.2 cm on the corona penis was found. The body of the penis
and glands therein were swollen and tenderness and inflammation was
present. There was nothing to suggest that the appellant was incapable
of indulging in intercourse.
15. The evidence of Daulat Ram (PW.7), the driver had been to the
extent that on 22.5.2001, the appellant had travelled with him to
12Page 13
certain places and had slept in his jeep that night and did not go to his
house, and the appellant could not furnish any explanation as to why
he had slept in the jeep and did not go to his house. Therefore, his
conduct was suggestive of the fact that the offence had been
committed by him.
The trial court also doubted the conduct of the appellant for the
reason that he had slept in the jeep though he was neither the driver of
a jeep nor the servant of Daulat Ram (PW.7), the driver. The High
Court had taken note of the appellant’s statement under Section 313 of
Code of Criminal Procedure, 1973, (hereinafter referred to as
`Cr.P.C.’), wherein the appellant had replied that the aforesaid
deposition was wrong, and held that explanation furnished by him was
false.
16. The courts below have proceeded on the basis that there was no
evidence of enmity against any of the witnesses which may lead to the
presumption that the appellant has been falsely implicated in the case.
17. Suspicion, however grave it may be, cannot take the place of
proof, and there is a large difference between something that `may be’
proved and `will be proved’. In a criminal trial, suspicion no matter
13Page 14
how strong, cannot and must not be permitted to take place of proof.
This is for the reason, that the mental distance between `may be’ and
`must be’ is quite large and divides vague conjectures from sure
conclusions. In a criminal case, the court has a duty to ensure that
mere conjectures or suspicion do not take the place of legal proof.
The large distance between `may be’ true and `must be’ true, must be
covered by way of clear, cogent and unimpeachable evidence
produced by the prosecution, before an accused is condemned as a
convict, and the basic and golden rule must be applied. In such cases,
while keeping in mind the distance between `may be’ true and `must
be’ true, the court must maintain the vital distance between
conjectures and sure conclusions to be arrived at, on the touchstone of
dispassionate judicial scrutiny based upon a complete and
comprehensive appreciation of all features of the case, as well as the
quality and credibility of the evidence brought on record. The court
must ensure, that miscarriage of justice is avoided and if the facts and
circumstances of a case so demand, then the benefit of doubt must be
given to the accused, keeping in mind that a reasonable doubt is not an
imaginary, trivial or a merely probable doubt, but a fair doubt that is
based upon reason and common sense. (Vide: Hanumant Govind
14Page 15
Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; Shivaji
Sahabrao Bobade & Anr. v. State of Mahrashtra, AIR 1973 SC
2622; Sharad Birdhichand Sarda v. State of Maharashtra, AIR
1984 SC 1622; Subhash Chand v. State of Rajasthan, (2002) 1 SCC
702; Ashish Batham v. State of M.P., AIR 2002 SC 3206; Narendra
Singh & Anr. v. State of M.P., AIR 2004 SC 3249; State through
CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh
Harijan v. State of U.P., AIR 2012 SC 1979)
18. In Kali Ram v. State of Himachal Pradesh, AIR 1973 SC
2773, this Court observed as under:
"Another golden thread which runs through the web of
the administration of justice in criminal cases is that if
two views are possible on the evidence adduced in the
case one pointing to the guilt of the accused and the
other to his innocence, the view which is favourable to
the accused should be adopted. This principle has a
special relevance in cases where in the guilt of the
accused is sought to be established by circumstantial
evidence."
19. In R. v. Hodge 168 ER 1163, the court held that before a
person is convicted entirely on circumstantial evidence, the court must
be satisfied not only that those circumstances were consistent with his
having committed the act, but also that the facts were such, so as to be
15Page 16
inconsistent with any other rational conclusion other than the one that
the accused is the guilty person.
20. In Sharad Birdhichand Sarda (Supra), this Court held as
under:
“The facts so established should be consistent only with
the hypothesis of the guilt of the accused. There should
not be explainable on any other hypothesis except that
the accused is guilty. The circumstances should be of a
conclusive nature and tendency. There must be a chain
of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence
of the accused and must show that in all human
probability the act must have been done by the accused."
A similar view has been reiterated in Krishnan v. State
Represented by Inspector of Police, (2008) 15 SCC 430; Pawan v.
State of Uttaranchal, etc. etc. (2009) 15 SCC 259; and State of
Maharashtra v. Mangilal, (2009) 15 SCC 418.
21. In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200,
this Court held, that if the circumstances proved in a case are
consistent either with the innocence of the accused, or with his guilt,
then the accused is entitled to the benefit of doubt. When it is held that
a certain fact has been proved, then the question that arises is whether
such a fact leads to the inference of guilt on the part of the accused
16Page 17
person or not, and in dealing with this aspect of the problem, benefit
of doubt must be given to the accused and a final inference of guilt
against him must be drawn only if the proved fact is wholly
inconsistent with the innocence of the accused, and is entirely
consistent with his guilt.
Similarly, in Sharad Birdhichand Sarda (Supra), this Court
held as under:
 “Graver the crime, greater should be the standard of
proof. An accused may appear to be guilty on the basis
of suspicion but that cannot amount to legal proof. When
on the evidence two possibilities are available or open,
one which goes in the favour of the prosecution and the
other benefits an accused, the accused is undoubtedly
entitled to the benefit of doubt. The principle has special
relevance where the guilt or the accused is sought to be
established by circumstantial evidence.
22. In an Essay on the Principles of Circumstantial Evidence by
William Wills by T. & J.W. Johnson & Co. 1872, it has been
explained as under:
“In matters of direct testimony, if credence be given to
the relators, the act of hearing and the act of belief,
though really not so, seem to be contemporaneous. But
the case is very different when we have to determine
upon circumstantial evidence, the judgment in respect of
which is essentially inferential. There is no apparent
necessary connection between the facts and the
inference; the facts may be true, and the inference
erroneous, and it is only by comparison with the results
17Page 18
of observation in similar or analogous circumstances,
that we acquire confidence in the accuracy of our
conclusions. ·
The term PRESUMPTIVE is frequently used as
synonymous with CIRCUMSTANTIAL EVIDENCE; but
it is not so used with strict accuracy, The word"
presumption," ex vi termini, imports an inference from
facts; and the adjunct "presumptive," as applied to
evidentiary facts, implies the certainty of some relation
between the facts and the inference. Circumstances
generally, but not necessarily, lead to particular
inferences; for the facts may be indisputable, and yet
their relation to the principal fact may be only apparent,
and not real; and even when the connection is real, the
deduction may be erroneous. Circumstantial and
presumptive evidence differ, therefore, as genus and
species.
The force and effect of circumstantial evidence
depend upon its incompatibility with, and incapability of,
explanation or solution upon any other supposition than
that of the truth of the fact which it is adduced to prove;
the mode of argument resembling the method of
demonstration by the reductio ad absurdum.”
23. Thus, in view of the above, the Court must consider a case of
circumstantial evidence in light of the aforesaid settled legal
propositions. In a case of circumstantial evidence, the judgment
remains essentially inferential. The inference is drawn from the
established facts as the circumstances lead to particular inferences.
The Court has to draw an inference with respect to whether the chain
of circumstances is complete, and when the circumstances therein are
collectively considered, the same must lead only to the irresistible
18Page 19
conclusion, that the accused alone is the perpetrator of the crime in
question. All the circumstances so established must be of a
conclusive nature, and consistent only with the hypothesis of the guilt
of the accused.
24. This Court in Babu v. State of Kerala, (2010) 9 SCC 189 has
dealt with the doctrine of innocence elaborately and held as under:
“27. Every accused is presumed to be innocent unless
the guilt is proved. The presumption of innocence is a
human right. However, subject to the statutory
exceptions, the said principle forms the basis of criminal
jurisprudence. For this purpose, the nature of the
offence, its seriousness and gravity thereof has to be
taken into consideration. The courts must be on guard to
see that merely on the application of the presumption,
the same may not lead to any injustice or mistaken
conviction. Statutes like the Negotiable Instruments Act,
1881; the Prevention of Corruption Act, 1988; and the
Terrorist and Disruptive Activities (Prevention) Act,
1987, provide for presumption of guilt if the
circumstances provided in those statutes are found to be
fulfilled and shift the burden of proof of innocence on the
accused. However, such a presumption can also be
raised only when certain foundational facts are
established by the prosecution. There may be difficulty in
proving a negative fact.
28. However, in cases where the statute does not
provide for the burden of proof on the accused, it always
lies on the prosecution. It is only in exceptional
circumstances, such as those of statutes as referred to
hereinabove, that the burden of proof is on the accused.
The statutory provision even for a presumption of guilt of
the accused under a particular statute must meet the tests
19Page 20
of reasonableness and liberty enshrined in Articles 14
and 21 of the Constitution.”
25. In a criminal trial, the purpose of examining the accused person
under Section 313 Cr.P.C., is to meet the requirement of the principles
of natural justice i.e. audi alterum partem. This means that the
accused may be asked to furnish some explanation as regards the
incriminating circumstances associated with him, and the court must
take note of such explanation. In a case of circumstantial evidence,
the same is essential to decide whether or not the chain of
circumstances is complete. No matter how weak the evidence of the
prosecution may be, it is the duty of the court to examine the accused,
and to seek his explanation as regards the incriminating material that
has surfaced against him. The circumstances which are not put to the
accused in his examination under Section 313 Cr.P.C., cannot be used
against him and have to be excluded from consideration.
26. In State of Maharashtra v. Sukhdev Singh, AIR 1992 SC
2100, this Court observed as under:
“…if there is no evidence or circumstance appearing in
the prosecution evidence implicating the accused with
the commission of the crime with which he is charged,
there is nothing for the accused to explain and hence his
examination under Section 313 of the Code would be
20Page 21
wholly unnecessary and improper. In such a situation
the accused cannot be questioned and his answers
cannot be used to supply the gaps left by witnesses in
their evidence.”
27. In Mohan Singh v. Prem Singh & Anr., AIR 2002 SC 3582,
this Court held:
“The statement of the accused under Section 313 CrPC
is not a substantive piece of evidence. It can be used for
appreciating evidence led by the prosecution to accept or
reject it. It is, however, not a substitute for the evidence
of the prosecution. If the exculpatory part of his
statement is found to be false and the evidence led by the
prosecution is reliable, the inculpatory part of his
statement can be taken aid of to lend assurance to the
evidence of the prosecution. If the prosecution evidence
does not inspire confidence to sustain the conviction of
the accused, the inculpatory part of his statement under
Section 313 CrPC cannot be made the sole basis of his
conviction.”
28. In Dehal Singh v. State of H.P., AIR 2010 SC 3594, this Court
observed:
“Statement under Section 313 of the Code of Criminal
Procedure is taken into consideration to appreciate the
truthfulness or otherwise of the case of the prosecution
and it is not an evidence. Statement of an accused under
Section 313 of the Code of Criminal Procedure is
recorded without administering oath and, therefore, the
said statement cannot be treated as evidence within the
meaning of Section 3 of the Evidence Act. The appellants
have not chosen to examine any other witness to support
this plea and in case none was available they were free
to examine themselves in terms of Section 315 of the
21Page 22
Code of Criminal Procedure which, inter- alia, provides
that a person accused of an offence is a competent
witness of the defence and may give evidence on oath in
disproof of the charges. There is reason not to treat the
statement under Section 313 of the Code of Criminal
Procedure as evidence as the accused cannot be crossexamined with reference to those statements. However,
when an accused appears as a witness in defence to
disprove the charge, his version can be tested by his
cross-examination.”
29. In State of M.P. v. Ramesh, (2011) 4 SCC 786, this Court held
as under:
“The statement of the accused made under Section 313
CrPC can be taken into consideration to appreciate the
truthfulness or otherwise of the prosecution case.
However, as such a statement is not recorded after
administration of oath and the accused cannot be crossexamined. his statement so recorded under Section 313
CrPC cannot be treated to be evidence within the
meaning of Section 3 of the Evidence Act. 1872. Section
315 CrPC enables an accused to give evidence on his
own behalf to disprove the charges made against him.
However, for such a course, the accused has to offer in
writing to give his evidence in defence. Thus, the accused
becomes ready to enter into the witness box, to take oath
and to be cross-examined on behalf of the prosecution
and/or of the accomplice, if it is so required.”
30. In Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114,
this Court observed as under:
“It is true that the statement under Section 313 CrPC
cannot be the sole basis for conviction of the accused but
certainly it can be a relevant consideration for the courts
22Page 23
to examine, particularly when the prosecution has
otherwise been able to establish the chain of events….”
31. In Dharnidhar v. State of U.P. & Ors., (2010) 7 SCC 759,
this Court held:
“The proper methodology to be adopted by the Court
while recording the statement of the accused under
Section 313 CrPC is to invite the attention of the accused
to the circumstances and substantial evidence in relation
to the offence, for which he has been charged and invite
his explanation. In other words, it provides an
opportunity to an accused to state before the court as to
what is the truth and what is his defence, in accordance
with law. It was for the accused to avail that opportunity
and if he fails to do so then it is for the court to examine
the case of the prosecution on its evidence with reference
to the statement made by the accused under Section 313
CrPC.”
32. In Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012
SC 1357, this Court held as under:
“It is a settled principle of law that the obligation to
put material evidence to the accused under Section 313
CrPC is upon the court. One of the main objects of
recording of a statement under this provision of CrPC is
to give an opportunity to the accused to explain the
circumstances appearing against him as well as to put
forward his defence, if the accused so desires. But once
he does not avail this opportunity, then consequences in
law must follow. Where the accused takes benefit of this
opportunity, then his statement made under Section 313
CrPC, insofar as it supports the case of the prosecution,
23Page 24
can be used against him for rendering conviction. Even
under the latter, he faces the consequences in law.”
33. In Munish Mubar v. State of Haryana, AIR 2013 SC 912,
this Court, while dealing with the issue of the examination of the
accused under Section 313 Cr.P.C. held, that the accused has a duty to
furnish an explanation in his statement under Section 313 Cr.P.C. as
regards any incriminating material that has been produced against
him. Such a view was taken in light of the fact that there existed
evidence to show that the accused had parked his car at the Delhi
Airport, and that the same had remained there for several hours on the
date of commission of the crime in question. Thus, in light of the fact
that such a fact had been established, and that such circumstances also
simultaneously existed, the accused was expected to explain the
reason for which he had gone to the airport, and why the car had
remained parked there for several hours.
34. In Ramnaresh (Supra), this Court had taken the view that if an
accused is given the freedom to remain silent during the investigation,
as well as before the Court, then the accused may choose to maintain
silence or even remain in complete denial, even at the time when his
24Page 25
statement under Section 313 Cr.P.C. is being recorded. However, in
such an event, the Court would be entitled to draw an inference,
including such adverse inference against the accused, as may be
permissible in accordance with law. While such an observation has
been made, this part of the judgment must be read alongwith the
subsequent observation of the court stating that if he keeps silent or
furnishes an explanation, in both cases, the same can be used against
him for rendering a conviction, in so far as it supports the case of the
prosecution.
35. In Brajendrasingh v. State of M.P., AIR 2012 SC 1552, this
Court held, that it is equally true that a statement under Section 313
Cr.P.C., simpliciter cannot normally be made the basis for convicting
the accused. But where the statement of the accused under Section
313 Cr.P.C. is in line with the case of the prosecution, then the heavy
onus of providing adequate proof on the prosecution, that is placed is
to some extent, reduced.
36. In view of the above, the law on the issue can be summarised to
the effect that statement under Section 313 Cr.P.C. is recorded to meet
the requirement of the principles of natural justice as it requires that
25Page 26
an accused may be given an opportunity to furnish explanation of the
incriminating material which had come against him in the trial.
However, his statement cannot be made a basis for his conviction. His
answers to the questions put to him under Section 313 Cr.P.C. cannot
be used to fill up the gaps left by the prosecution witnesses in their
depositions. Thus, the statement of the accused is not a substantive
piece of evidence and therefore, it can be used only for appreciating
the evidence led by the prosecution, though it cannot be a substitute
for the evidence of the prosecution. In case the prosecution’s evidence
is not found sufficient to sustain conviction of the accused, the
inculpatory part of his statement cannot be made the sole basis of his
conviction. The statement under Section 313 Cr.P.C. is not recorded
after administering oath to the accused. Therefore, it cannot be treated
as an evidence within the meaning of Section 3 of the Evidence Act,
though the accused has a right if he chooses to be a witness, and once
he makes that option, he can be administered oath and examined as a
witness in defence as required under Section 315 Cr.P.C.
An adverse inference can be taken against the accused only and
only if the incriminating material stood fully established and the
accused is not able to furnish any explanation for the same. However,
26Page 27
the accused has a right to remain silent as he cannot be forced to
become witness against himself.
37. We have considered the case in the light of the aforesaid settled
legal propositions and reached the following inescapable inferences:
I. Kalawati (PW.3), grandmother of the deceased Pooja, has
stated that Indira (PW.2), mother of the deceased Pooja, had
removed her silver Kada and had placed it near Pooja. The said
Kada has however, not been seized from either the place of
occurrence, from their cart, or from the appellant.
II. Witnesses PW.1 to PW.4 have submitted, that the pant, shirt,
vest, brief and shoes of the appellant were found lying near the
dead body of Pooja. This statement has been disbelieved in its
entirety by the High Court, and to such extent, it has been held
all the witnesses have given a false statement.
III. There has been an evidence in respect of recovery of blood
stained clothes of the appellant which stand falsified by the
deposition of Daulatram (PW.7) who had categorically deposed
that when he woke him up while sleeping in the jeep, his
clothes did not have any blood stained. Hari Singh (PW.9)
27Page 28
admitted in his deposition that in Arrest Memo, Ex.P-14 there
was no mention that there was any blood on the body of the
accused or his clothes.
IV. As per the evidence of PWs.1 to 4, the appellant was
apprehended by them when he came and made a demand of
Rs.2,000/- to bring Pooja back on 23.5.2001 and was handed
over to the police. There could be no explanation by the
Investigating Officer as how his arrest had been shown on
27.5.2001.
V. Naurang (PW.4) has categorically deposed that the appellant
was shown to such witnesses immediately after his arrest by the
police.
VI. The High Court has taken the view that the appellant has also
furnished a false explanation. Daulatram (PW.7) was a
prosecution witness and the appellant has submitted that he has
deposed falsely. Such a statement made by the appellant could
not be held to be a false explanation.
VII. The discovery of the body of Pooja by Kalawati (PW.3) is also
grossly suspect, owing to the fact that it is neither natural to
28Page 29
defecate on the roof of a house, nor to go to the roof of a vacant
building in the wee hours of the morning.
VIII. Even if the missing report was filed at 8 O’Clock in the
morning of 23.5.2001 and the appellant had approached the
witnesses to pay to him a sum of Rs.2,000/-, to bring Pooja
back the very same day, there is no reason why the said fact is
found to be missing in the FIR that was lodged on 24.5.2001.
IX. In their statements recorded under Section 161 Cr.P.C.,
witnesses PW.1 to PW.4 have expressed the doubt that they had
with respect to the appellant. It is pertinent to note however,
that all the statements were recorded on 27.5.2001 and there is
no explanation for why such a statement is missing in the FIR
lodged on 24.5.2001.
X. Statement of Rohtash (PW.1) was shown to have been recorded
on 27.5.2001 though the same was recorded on 24.5.2001 as is
evident from the overwriting in the original record.
XI. The recoveries are also highly unbelievable as Daulatram
(PW.7) and another witness Ummaid (PW.8), who had been
declared hostile, have deposed in the court stating that they had
been asked to sign on blank papers. In such circumstances, why
29Page 30
was Daulatram (PW.7) also not declared hostile by the
prosecution?
XII. Doctor Laxman Singh (PW.12), has deposed before the court,
stating that the appellant had on his person, several injuries and
that some of the said injuries that were on his right leg, could
have been caused by a blunt weapon. No explanation was
furnished by the prosecution with respect to such injuries.
Moreover, even if some injuries were found on the private parts
of the appellant, the same does not conclusively connect him to
the crime.
XIII. Gopi Singh (PW.14), the investigating officer, has deposed in
court, that a white semen like substance was seized from the
spot. Such a statement is not possible to be taken as true for the
reason that the colour of the semen is said to have remained
white even after the lapse of several hours.
38. In the instant case, there have been major contradictions/
improvements/embellishments in the deposition of witnesses which
cannot be ignored when they are examined in the correct perspective.
The chain of links connecting the appellant with the crime appears
inconclusive. It is a settled legal proposition that, while appreciating
30Page 31
the evidence of a witness, minor discrepancies on trivial matters,
which do not affect the core of the case of the prosecution, must not
prompt the court to reject the evidence thus provided, in its entirety.
The irrelevant details which do not in any way corrode the credibility
of a witness, cannot be labeled as omissions or contradictions.
Therefore, the courts must be cautious and very particular, in their
exercise of appreciating evidence. The approach to be adopted is, if
the evidence of a witness is read in its entirety, and the same appears
to have in it, a ring of truth, then it may become necessary for the
court to scrutinize the evidence more particularly, keeping in mind the
deficiencies, drawbacks and infirmities pointed out in the said
evidence as a whole, and evaluate them separately, to determine
whether the same are completely against the nature of the evidence
provided by the witnesses, and whether the validity of such evidence
is shaken by virtue of such evaluation, rendering it unworthy of belief.
“Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version,
when the entire evidence is put in a crucible for being tested on the touchstone of credibility.”
It is in fact, the entirety of the situation
which must be taken into consideration. While appreciating the
31Page 32
evidence, the court must not attach undue importance to minor
discrepancies, rather must consider broad spectrum of the prosecution
version. The discrepancies may be due to normal errors of perception
or observation or due to lapse of memory or due to faulty or stereotype investigation. After exercising such care and caution, and sifting
through the evidence to separate truth from untruth, embellishments
and improvements, the court must determine whether the residuary
evidence is sufficient to convict the accused. (Vide: Bihari Nath
Goswami v. Shiv Kumar Singh & Ors., (2004) 9 SCC 186; Vijay @
Chinee v. State of Madhya Pradesh, (2010) 8 SCC 191; and
Sampath Kumar v. Inspector of Police, Krishnagiri, AIR 2012 SC
1249).
In Kehar Singh & Ors. v. State (Delhi Admn.), AIR 1988 SC
1883, this Court has held that if the discrepancies are material it
would be safer to err in acquitting than in convicting the accused. 
39. In Subhash v. State of Haryana, AIR 2011 SC 349, 
this Court
has held that a significant omission in the statement of a witness
recorded under Section 161 Cr.P.C. may amount to a major
contradiction.
 However, it may depend upon the facts of case and in
32Page 33
case of a material contradiction the accused becomes entitled for
benefit of doubt and thus acquittal.
40. Thus, we find force in the submissions advanced by Ms.
Makhija, learned Amicus Curiae,
 that evidence produced by the
prosecution had been very shaky and the chain of links connecting the
appellant with the crime appears inconclusive. 
The circumstantial
evidence is completely wanting in this respect. 
To accept the
description of the evidence collected as flimsy, or no evidence would
be too short for convicting the appellant for the offence, as many
issues/circumstances virtually remained unexplained. 

In view of the above, we have no hesitation in holding that the
prosecution failed to prove the case against the appellant beyond
reasonable doubt and thus, he becomes entitled for benefit of doubt.
Thus, the appeals succeed and are allowed. 
The conviction and
sentence imposed on the appellant are set aside. The appellant be
released forthwith unless wanted in some other case.
Before parting with the case, we record our appreciation to Ms.
Vibha Datta Makhija, Advocate who rendered invaluable service as
Amicus Curiae in disposal of these appeals.
33Page 34
………………………………..................................J.
 (Dr. B.S. CHAUHAN)
………………………………...................................J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI;
May 6, 2013.
34

Sections 147/149/449/436/302/395/396 of the Indian Penal Code, 1860= “(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. 27Page 28 (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him — Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.”- one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment — sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same.”;p We have re-appraised the entire evidence of the prosecution witnesses including the eye-witnesses, namely, PW-1 Harjit Kaur, PW-4 Sushil Kumar, PW-5 Dr. Harbir Sharma, PW-6 Jagdish Kumar, PW-7 Mohar Pal and found that their testimonies have remained unshaken except some minor discrepancies which have to be ignored. 24. In view of the aforesaid analysis of the facts and evidence on record, we reach the inescapable conclusion that the High Court correctly appreciated the evidence and reversed the findings of the trial court. 25. For the reasons aforesaid, we do not find any merit in this appeal which is accordingly dismissed.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1794 OF 2008
Lal Bahadur & Ors. … Appellant(s)
versus
State (NCT of Delhi) … Respondent(s)
J U D G M E N T
M.Y. Eqbal, J.
1. The present appeal has been filed under Section
379 of the Criminal Procedure Code, 1973 read with Section 2
of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 against the judgment and order dated
27th August, 2008 passed by the Delhi High Court in Criminal
Appeal No. 6 of 1992 reversing the order of acquittal dated 31st
October, 1990 passed by the Additional Sessions Judge, Delhi
in Sessions Case No. 12 of 1988 and convicting the appellants
under Sections 147/149/449/436/302/395/396 of the Indian
1Page 2
Penal Code, 1860 and sentencing each of them to undergo
rigorous imprisonment and fine under different sections of IPC.
2. During the pendency of this appeal, appellant No. 4
Ram Lal is stated to have died on 23rd May, 2011. Therefore,
the appeal stands abated so far as he is concerned.
3. The case of the prosecution in brief is that Harjit
Kaur (PW-1), a resident of House No. RZ-1/295, Geetanjali
Park, West Sagarpur, New Delhi, apprehensive of harm to her
family because of riots which followed the assassination of late
Prime Minister Indira Gandhi on 31st October, 1984, had sent
both her daughters and a son to her father Govind Singh’s
house at BE-7, Hari Nagar, New Delhi. In her typed complaint
(Ex. PW1/A) lodged on 7th November, 1984, she stated that a
mob including appellant No. 1 Lal Bahadur alias Lal Babu along
with appellant No. 2 Surender P. Singh and Charan, who lived
in her neighbourhood, had attacked her house and looted
household articles on 1st November, 1984 at about 9/9.30 a.m.
Fearing threats of communal violence, the complainant Harjit
Kaur and her family had taken shelter at the residence of Dr.
Harbir Sharma (PW-5) who had his house opposite to that of
2Page 3
the complainant and had remained there with her husband
(Rajinder Singh) and father-in-law (Sardool Singh) for 2-3 days.
On 3rd November, 1984, the appellants came to the house of
Dr. Harbir Sharma in the morning and protested for having
given shelter to the complainant’s family and threatened that if
the complainant and her family to whom shelter had been given
were not handed over to them, they would burn the house.
Thereupon, Dr. Harbir Sharma went out to get help from the
Military. At about 9.00 a.m., a mob of more than 500 persons,
including the appellants, came and attacked the house of Dr.
Harbir Sharma where the complainant was hiding with her
husband and father-in-law. The appellants were having one
cane of oil and iron sabbal and were leading the mob. As per
the complainant, her husband and father-in-law had taken
shelter in one of the room on the ground floor and locked
themselves, while the family of Dr. Harbir Sharma and she
herself had gone upstairs to the roof. At the time the mob was
assembling, the complainant was present on the roof of one of
the neighbours of Dr. Harbir Sharma whose house was in the
same row. As per complainant’s testimony, the mob was
3Page 4
armed with sabbals, ballams, sariyas and lathis. She stated
that the appellants hit the door of the house with iron sabbals
but the door could not be broken open. They thereupon broke
the windowpane and entered the house and set the house on
fire. The complainant’s husband and father-in-law were burnt
alive and their half burnt bodies were put in gunny bags. The
complainant’s house was also burnt. It is the prosecution’s
case that Sushil Kumar (PW-4) (brother-in-law of Dr. Harbir
Sharma), Dr. Harbir Sharma (PW-5), Jagdish (PW-6) and
Mohar Pal (PW-7) also saw the house being set on fire and the
deceased Rajinder Singh and Sardool Singh were being
attacked with sabbals, burnt and their mortal bodies put into
gunny bags. Sushil Kumar, on first seeing Dr. Sharma’s
house being put on fire, had rushed to call Dr. Sharma who had
gone to call the police. Both of them rushed back to find the
house being burnt by the appellants and Sardoor Singh as well
as Rajinder Singh were killed. They saw the appellants using
dandas to put the bodies of the deceased in gunny bags.
However, some persons gathered there saved Dr. Sharma and
his family members and he lodged the report on 5th November,
4Page 5
1984. As per the deposition of the complainant, after the
mishap, with the help of one boy she went to Hari Nagar at her
father’s house and also to police station Janakpuri and after the
help of Gorkha Regiment was provided she returned to
Sagarpur on 3rd November, 1984 but she could not get the dead
bodies of her husband and father-in-law and her entire house
was burnt and the house of Dr. Sharma was also entirely burnt
along with household articles. On 7th November, 1984, she
made a complaint in Police Station Delhi Cantt. The FIR was
registered on 9th November, 1984. On completion of the
investigation, challan was filed against the accused-appellants
and they were charged of having committed offences under
various sections of IPC. In support of its case, the prosecution
examined as many as nine witnesses. Each of the accused
denied the incriminating circumstances put to them and stated
that they have been falsely implicated because Dr. Harbir
Sharma had enmity with them. However, none of the accused
led any evidence in defence.
4. The trial court on consideration of testimony of the
witnesses held that the prosecution has failed to prove the
5Page 6
charges levelled against the appellants beyond all reasonable
doubt and acquitted the accused appellants.
5. The trial court held firstly that delay in lodging the
FIR was not properly explained because the complainant (PW-
1) had gone to Police Station Janakpuri on 3rd November, 1984
and sought military help from there with a view to recover dead
bodies of her husband and father-in-law, but she had not
lodged the report on 3rd November, 1984. Similarly, the court
held that there was delay on the part of Dr. Harbir Sharma (PW-
5) in making the complaint to the police on 5th November, 1984
for the incident of 3rd November, 1984. The trial court also
noticed delay of 27 days in recording statements of PW-4, PW-
6 and PW-7. Secondly, the trial court held that the
complainant had made prevaricating statements regarding
presence of two accused persons i.e. appellant No.2 Surender
and appellant No. 3 Virender on 1st November, 1984 without
any corroboration as also regarding putting of the half burnt
dead bodies in the gunny bags on 3rd November, 1984,
inasmuch as she had not named accused–appellant No. 4
(Ram Lal) and appellant No. 3 (Virender Singh) in her complaint
6Page 7
(Ex.PW1/A), though they were identified in the court by her; and
even in her statement recorded second time she had stated
that she had not seen accused-appellant No. 2 Surender and
appellant No. 3 Virender on 1st November, 1984 whereas in her
first statement recorded on 21st April, 1986 she had stated that
on 1st November, 1984 accused-appellant No. 1 Lal Bahadur,
appellant No. 3 Virender and appellant No. 4 Ram Lal were
amongst the persons who had looted her house. The trial court
further noted that in her complaint (Ex. PW1/A), the
complainant had mentioned that the half burnt bodies of her
husband and father-in-law were put in gunny bags by the
accused (Lal Babu, Surender and Charan) on 3rd November,
1984, whereas in her statement before the court she stated that
she did not actually see the accused putting burnt dead bodies
of deceased into gunny bags and she only heard saying the
accused persons `put half burnt dead bodies in the gunny
bags’. Thirdly, the trial court noticed certain contradictions in
the statements of eye-witnesses, namely, Sushil Kumar (PW-4),
Dr. Harbir Sharma (PW-5), Jagdish (PW-6) and Mohar Pal
(PW-7). The trial court noted that certain facts were not
7Page 8
mentioned in the complaint (Ex.PW-5/1) by PW-5 and the
names of two accused Ram Lal and Virender also did not find
mention therein. The trial court further observed on the basis
of contradictions pointed out in the statements that PW-5 had
not come back and witnessed the burning of his house as well
as the beating and killing of deceased persons as deposed by
him. Fourthly, the trial court observed that the prosecution
witnesses PW-4, PW-6 and PW-7 were not the actual
witnesses to the occurrence because had it been so, PW-5
would definitely have mentioned their names in Ex. PW5/1 and
held that the possibility of PW-4, PW-6 and PW-7 being
procured or to have been made to depose for PW-5 cannot be
ruled out. The trial court thus held:
“……. all these circumstances that delay of 11 days
of lodging FIR Ex. PW1/A, the delay of 2 days in
lodging complaint Ex.PW5/1, non-mention of the
names of two accused Virender and Ram Lal in the
FIR as well as in the complaint along with the
element of interestedness on the part of PWs,
coupled with the fact that statements of PW4, PW6
and PW7 have been recorded after an unjustified
and long delay of 27 days, cast a suspicion upon
the wrap and woof i.e. texture in the prosecution
story and in my opinion the prosecution has not
been able to establish its case against any of the
accused beyond reasonable doubt.
8Page 9
In view of my above discussion, I find that the
prosecution has failed to prove its case beyond all
shadows of doubt. Thus giving benefit of doubt, I
acquit all the accused persons for the offences they
have been charged. They are on bail, their bail
bonds are cancelled. Sureties are discharged. ….”
6. Against the judgment of the trial court, the State
preferred an appeal before the High Court. The Division
Bench reversed the above findings of the trial court and
convicted the accused-appellants under Sections
147/149/449/436/302/395/396, IPC and sentenced each of
them for the offences committed under aforementioned
sections of IPC.
7. It is in these circumstances that the present appeal
has been filed by the accused-appellants under Section 379 of
the Code of Criminal Procedure read with Section 2 of the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
Act, 1970 against the judgment and order of the Delhi High
Court reversing the order of acquittal passed by the trial court.
8. Mr. Prasoon Kumar, learned counsel for the
appellant-accused persons assailed the impugned judgment
passéd by the High Court as being illegal and perverse in law.
Learned counsel firstly contended that the High Court has erred
9Page 10
in law in appreciating the deposition of the eye-witnesses as the
deposition of eye-witnesses is not above suspicion and is full
of contradictions, inconsistencies and emblazonments and
further the deposition made by the alleged eye-witnesses
cannot be accepted as trustworthy and reliable. As per the
observation of trial court, as regards the statements of eyewitnesses, namely, Dr. Harbir Sharma (PW-5), Sushil Kumar
(PW-4), Jagdish (PW-6) and Mohar Pal (PW-7) it may be
pointed out that there are certain contradictions in the
statement of PW-5 and in his complaint Ex.PW-5/1. Learned
counsel then contended that the High Court has not
appreciated the contradictions in the deposition of PW-1 (Harjit
Kaur). As per the complaint Ex. PW1/A and statement of
PW-1, the incident had taken place on two dates i.e. on 1st
November, 1984 and 3rd November, 1984. On 1st November,
1984, the accused Lal Babu, Surender and one Charan who
has not been challaned by the police, having collected some
other persons, came to her house and looted the household
articles. In her statement, she has stated that she knew all the
four accused persons as they were the residents of her locality
10Page 11
and identified them in the deck, but she has not named
accused Ram Lal and Virender in Ex.PW-1/A. PW-1 is the sole
eye-witness regarding the incident which took place on 1st
November, 1984 and other prosecution witnesses related to the
incident dated 3rd November, 1984 as they have not testified to
the incident dated 1st November, 1984. Besides this, PW-1
has not named Ram Lal and Virender in her complaint to the
police on the basis of which FIR was registered. She has also
deposed that she furnished a list of articles looted by the mob
from her house but the prosecution has neither placed any list
of looted articles as alleged by PW-1 nor any recovery from any
of the accused or from any place in respect of the looted
articles has been effected by the Investigating Officer. Thus,
there is no corroboration to the testimony of PW-1 regarding the
incident of looting/dacoity, which took place on 1st November,
1984. Further, the High Court has failed to appreciate that
ingredients of Section 390 IPC are not made out at all in the
present case. The High Court did not appreciate the facts of
the case because to convict a person in a case of dacoity, there
must be a robbery committed in the first place. Further, the
11Page 12
High Court erred in law by not appreciating the
discrepancies/contradictions in the testimonies of Sushil Kumar
(PW-4), Jagdish (PW-6) and Mohar Pal (PW-7), which were
rightly appreciated by the trial court while passing the order of
acquittal. PW-4 is co-brother (Sadhu) of PW-5. He has
admitted in his cross-examination that he had worked as a
compounder. According to PW-6, he saw all the accused
persons putting the above mentioned two houses on fire,
beating and killing the deceased and also putting the dead
bodies of the deceased into gunny bags along with many other
persons who were also present. He has stated that his
statement was recorded within 4-5 days of the occurrence
whereas in fact as per the statement of I.O. (PW-9) and as per
record his statement was recorded on 30th November, 1984 i.e.
after unexplained delay of about 27 days. Learned counsel
submitted that there was no recovery of the dead bodies of
deceased, namely, Rajinder Singh and Sardool Singh.
Besides, the prosecution did not produce any vital/scientific
piece of evidence on record before the trial court that any
person was burnt alive on 3rd November, 1984 in the premises
12Page 13
bearing No. RZ-3/295, Gitanjali Park, Sagarpur, New Delhi.
The prosecution had ample opportunities to collect evidence
from the place of alleged occurrence like ashes, blood stains
etc. to prove the alleged killing and burning of two persons
alive. Learned counsel further contended that the High Court
did not appreciate the fact that there was a delay of 07 days in
lodging the FIR, as the alleged incident had taken place on two
different dates i.e. 1st November, 1984 and 3rd November, 1984.
As per the version of PW-1, Harjit Kaur, she went to call the
police/military assistance on 3rd November, 1984 and she was
present in Police Station Janakpuri, but it is an admitted fact
that FIR was not lodged by her on 3rd November, 1984 itself. It
was further submitted that the High Court also erred in not
appreciating that the explanation as a reasoning for
justification of delay is not only unjustified but also improper and
imaginary one. The reason given by the High Court regarding
delay in lodging the FIR is wrong and perverse to the facts and
circumstances of the case. It is an admitted fact that PW-1
Harjit Kaur went to call the police and she came back from the
police station in a military truck along with officials of Gorkha
13Page 14
Regiment, she had enough time to narrate the whole incident to
the police, so the denial of PW-1 that she did not narrate the
whole incident to the police on 3rd November, 1984 is
unbelievable and cannot be accepted in any manner
whatsoever. Further contention is that the High Court failed to
appreciate that the statement of eye-witnesses, PW-4, PW-6
and PW-7 were recorded after the unexplained delay of 27
days which is fatal to the prosecution case. This fact was
meticulously considered by the trial court while acquitting the
appellants from all the charges.
9. Per contra, Mr. Rakesh Khanna, learned Additional
Solicitor General, firstly contended that the findings of fact
recorded by the trial court and the conclusion arrived at are
perverse in law and, therefore, the High Court in exercise of
appellate power has rightly reversed the findings of the trial
court. Learned ASG drew our attention to the testimonies of
the prosecution witnesses and submitted that except minor
discrepancies the prosecution has been able to prove the guilt
of the accused beyond all reasonable doubts. On the question
of appreciation of evidence and the consequence of non-
14Page 15
recovery of dead bodies, the learned ASG relied upon the
decisions of this Court in Govindaraju vs. State of Karnataka,
(2009) 14 SCC 236, Lokeman Shah & Anr. vs. State of West
Bengal, (2001) 5 SCC 235 and Ramanand & Ors. vs. State
of H.P., (1981) 1 SCC 511. Learned ASG also put reliance on
the decision of this Court in the case of Delhi Administration
vs. Tribhuvan Nath & Ors., (1996) 8 SCC 250 which case also
related to the some instance of 1984 when Sikh communities
were attacked and murdered, but the dead bodies were not
recovered.
10. We have carefully considered the submissions of
learned counsel on either side and analysed the testimonies of
the witnesses. The various decisions relied upon by the
counsel have also been considered by us.
11. At the very outset, we must take notice of the fact
that the instant incident as alleged is not the solitary incident,
but such incidents took place in almost all parts of the country,
especially in Delhi where many innocent persons of one
community had been murdered and their properties had been
looted because of the assassination of the Prime Minister of
15Page 16
this country, which took place on 31st October, 1984. After
hearing the shocking news of assassination of the Prime
Minister, thousands of people forming a mob in different areas
and localities committed atrocities to the Sikh communities and
they were murdered and set ablazed. Therefore, the evidence
has to be appreciated carefully without going into the minor
discrepancies and contradictions in the evidence.
12. The High Court on the first issue regarding delay in
filing of FIR held that the circumstances of the present case are
extraordinary as the country was engulfed in communal riots,
curfew was imposed, Sikh families were being targeted by
mobs of unruly and fanatic men who did not fear finishing
human life, leave alone destroying/burning property. As
regards recording of the statements of witnesses by the police
on 30th November, 1984 after a delay of 27 days, the High
Court observed that the city was in turmoil and persons having
witnessed crimes would naturally be apprehensive and afraid in
coming forward to depose against the perpetrators, till things
settled down; that the State machinery was overworked; and in
such circumstances, delay in recording the statements of
16Page 17
witnesses cannot be a ground to reduce its evidentiary value or
to completely ignore it. The High Court further found that the
witnesses prior to the incident were the residents of the same
area and knew the assailants and it was not the case of the
appellants that the delay could have resulted in wrong
identification of the accused.
13. As regards contradictions in the testimony of
various witnesses, the High Court observed as under :
“19. ……. Harjit Kaur had mentioned that her house
was looted by a mob comprising, inter alia, of Lal
Babu and Surinder. Her subsequent mentioning of
names of other respondents does not appear to be
an improvement of such importance that her entire
eye witness account which finds corroboration by
other witnesses can be overlooked. At best here a
doubt may arise only with regard to complicity of
Virender and Ram Lal (it seems to have mistakenly
typed as Surinder in ….. trial court judgment)
because later she had identified the other
respondents Virender and Ram Lal also as having
participated in looting her house.
xxx xxx xxx
23. It is no doubt true that the entire case of the
prosecution hinges upon the neighbours and the
widow of the victim, who may be interested in
securing conviction of the accused persons but no
rule of law prescribes that conviction cannot be
based on the testimony of such witnesses. The
only requirement of law is that the testimony of
17Page 18
those witnesses must be cogent and credible. Here
it is apposite to extract the substance of the
testimony of PWs. …….
xxx xxx xxx
27. On reading of the evidence of above witnesses,
we find that the testimonies of the witnesses are
trustworthy. This we say so on account of the fact
that their evidence has been consistent and they
have also remained unshaken during their cross
examination. Thus, we do not find any reason to
discard the evidence of these witnesses in totality.
They do not vary in any manner on any material fact
and if there are any discrepancies, the same are
trivial, immaterial and could not be made the basis
of the acquittal.”
We fully endorse the view expressed by the High Court and
reject the contentions raised by the appellants.
14. On the contention of the appellants that dead
bodies were never recovered and found and as such there is no
evidence with regard to the fact that they were ever killed and
that too by the accused, the High Court referring to Rama Nand
& Ors. vs. State of H.P., (1981) 1 SCC 511 and Ram Bahadur
@ Denny vs. State, 1996 Crl.L.J. 2364, observed that it is well
settled law that in a murder case to substantiate the case of the
prosecution it is not required that dead bodies must have been
18Page 19
made available for the identification and discovery of dead body
is not sine qua non for applicability of Section 299 of IPC.
15. As regards independence of witnesses or their
procurement or their interestedness, the High Court observed
that the factors pointed out by the trial court merely bring out a
relation of doctor patient or pupil association but do not show
that all witnesses had colluded against the accused with some
ulterior motives. With regard to the allegation of enmity, no
evidence was found to have been led. The High Court on this
issue found that “there is no suggestion of animosity or inimical
relationship with Harjit Kaur. There would be no reason for Dr.
Harbir Sharma to procure the witnesses for Harjit Kaur. The
only interest of Dr. Harbir Sharma could have been to claim
compensation for the burning of the house, which was available
in any case as the burning of the house was an admitted
position. Besides this, each one of them was resident of the
same area and they were natural witnesses and not planted
ones. The High Court while allowing the appeal of the State
thus observed:
19Page 20
“40. …… we are of the view that the evidence of
even one eye witness was sufficient in itself to
implicate the respondents, namely, Surinder,
Virender, Ram Lal and Lal Bahadur for the crime
committed by them on 01.11.1984 & 03.11.1984.
Here, we have four eye witnesses, who have seen,
with their own eyes, the gruesome murder of the
deceased persons.
41. We are also not convinced that the delay in
filing FIR or delay in recording the statements of
PW4, PW6 and PW7 has vitiated the trial. Mere
delay in examination of the witnesses for few days
cannot in all cases be termed to be fatal so far as
the prosecution case is concerned when the delay
is explained. There may be several reasons.
Admittedly, the instant case relates to the riots,
which took place on account of the assassination of
late Mrs. Indira Gandhi, which led to the complete
breakdown of the law and order machinery. Chaos
and anarchy permeated every nook and corner of
the city. In the above circumstances, we feel that
the delay has been satisfactorily explained.
Whatever be the length of delay, the court can act
on the testimony of the witnesses if it is found to be
reliable. Further, the allegations of nonindependent witnesses and animosity of Dr. Sharma
with the respondents cannot cast doubts on the
eyewitness account of Harjit Kaur.”
xxx xxx xxx
43. It is not an ordinary routine case of murder,
loot and burning. It is a case where the members of
one particular community were singled out and were
murdered and their properties were burnt and
looted. Such lawlessness deserved to be sternly
dealt with as has been said by the Supreme Court
in Surja Ram vs. State of Rajasthan, 1997 CRLJ 51,
the Court has also do keep in view the society’s
20Page 21
reasonable expectation for appropriate deterrent
punishment confining to the gravity of the offence
and consistent with the public abhorrence for the
heinous crime committed by the accused. The
sentence has to be deterrent so as to send a
message for future.
44. The crime’s punishment comes out of the
same root. The accused persons should have no
cause for complaint against it. Their sin is the seed.
The terrible terror created by them is a cause for
concern for the society. Courts are empowered by
the statute to impose effective penalties on the
accused as well as even on those who are their
partners in the commission of the heinous crime.”
16. Thus it is clear that the High Court re-appreciated
the evidence of the witnesses in detail and meticulously
examined the facts and circumstances of the case in its right
perspective and recorded a finding that the prosecution has
proved the case against the appellants.
17. The contention of Mr. Kumar, learned counsel
appearing for the appellants is that as the trial court after having
appreciated the evidence in detail acquitted the appellants, the
High Court normally should not have taken a different view. We
are unable to accept the contentions made by the learned
counsel. It is well settled proposition that in an appeal against
acquittal, the appellate court has full power to review the
21Page 22
evidence upon which the order of acquittal is founded. The
High Court is entitled to re-appreciate the entire evidence in
order to find out whether findings recorded by the trial court are
perverse or unreasonable.
18. The law has been well settled by a 3-Judge Bench
judgment of this Court in the case of Sanwat Singh & Ors. vs.
State of Rajasthan AIR 1961 SC 715 (para 9), wherein this
Court observed:
“The foregoing discussion yields the following
results: (1) an appellate court has full power to
review the evidence upon which the order of
acquittal is founded; (2) the principles laid down in
Sheo Swarup’s case, 61 Ind. App 398: (AIR 1934
PC 227 (2), afford a correct guide for the appellate
court's approach to a case in disposing of such an
appeal; and (3) the different phraseology used in
the judgments of this Court, such as, (i) “substantial
and compelling reasons”, (ii) “good and sufficiently
cogent reasons”, and (iii) “strong reasons”, are not
intended to curtail the undoubted power of an
appellate court in an appeal against acquittal to
review the entire evidence and to come to its own
conclusion; but in doing so it should not only
consider every matter on record having a bearing
on the questions of fact and the reasons given by
the court below in support of its order of acquittal in
its arriving at a conclusion on those facts, but
should also express those reasons in its judgment,
which lead it to hold that the acquittal was not
justified”.
22Page 23
19. So far as the contradictions and inconsistencies in
the evidence of the prosecution witnesses, as pointed out by
the counsel for the appellants, are concerned, we have gone
through the entire evidence and found that the evidence of the
witnesses cannot be brushed aside merely because of some
minor contradictions, particularly for the reason that the
evidence and testimonies of the witnesses are trustworthy. Not
only that, the witnesses have consistently deposed with regard
to the offence committed by the appellants and their evidence
remain unshaken during their cross-examination. Mere
marginal variation and contradiction in the statements of the
witnesses cannot be a ground to discard the testimony of the
eye-witness who is none else but the widow of the one
deceased. Further, relationship cannot be a factor to affect
credibility of a witness.
In the case of State of Uttar Pradesh vs. Naresh & Ors.
(2011) 4 SCC 324, this Court observed:-
“30. In all criminal cases, normal discrepancies are
bound to occur in the depositions of witnesses due
to normal errors of observation, namely, errors of
memory due to lapse of time or due to mental
disposition such as shock and horror at the time of
23Page 24
occurrence. Where the omissions amount to a
contradiction, creating a serious doubt about the
truthfulness of the witness and other witnesses also
make material improvement while deposing in the
court, such evidence cannot be safe to rely upon.
However, minor contradictions, inconsistencies,
embellishments or improvements on trivial matters
which do not affect the core of the prosecution case,
should not be made a ground on which the
evidence can be rejected in its entirety. The court
has to form its opinion about the credibility of the
witness and record a finding as to whether his
deposition inspires confidence.
“9. Exaggerations per se do not render
the evidence brittle. But it can be one of
the factors to test credibility of the
prosecution version, when the entire
evidence is put in a crucible for being
tested on the touchstone of credibility.”
(Ed: As observed in Bibhuti Nath
Goswami v. Shiv Kumar Singh (2004) 9
SCC 186 p. 192.
Therefore, mere marginal variations in the
statements of a witness cannot be dubbed as
improvements as the same may be elaborations of
the statement made by the witness earlier. The
omissions which amount to contradictions in
material particulars i.e. go to the root of the
case/materially affect the trial or core of the
prosecution's case, render the testimony of the
witness liable to be discredited. [Vide State v.
Saravanan, (2008) 17 SCC 587, Arumugam v.
State (2008) 15 SCC 590, Mahendra Pratap Singh
v. State of U.P. (2009) 11 SCC 334, and Sunil
Kumar Sambhudayal Gupta (Dr.) v. State of
Maharashtra. (2010) 13 SCC 657.]
24Page 25
20. Much stress has been given by the learned counsel
on the non-recovery of the dead-bodies and the looted articles
when the allegation is that after killing the persons they put the
dead bodies into gunny bags. The aforesaid plea cannot in
any way improve the case of the appellants. This Court in the
case of Delhi Administration vs. Tribhuvan Nath and Ors.,
(1996) 8 SCC 250, has considered the same issue as raised by
the appellants herein. In that case, the accused were
prosecuted for committing murder and throwing the dead body
into drains or setting it ablaze. Their properties were looted and
their houses were burnt because of the assassination of Prime
Minister in 1984. After re-appreciation of the evidence, this
Court held as under:-
“5. If the evidence of the aforesaid PWs is read
as a whole, which has to be, what we found is that
on 1-11-1984, at first around 11 a.m., a mob of
about 200 people came to Block No. P-1, Sultan
Puri, which then had 30 to 35 jhuggies. Deceased
Himmat Singh and Wazir Singh used to live in those
jhuggies. The mob which came around 11 a.m. was
said to have been armed with iron rods and sticks;
but then it was not causing any damage. Rather, it
was being advised by this mob that the persons
staying in jhuggies should get their hair cut if they
wanted to save their lives. The inmates felt inclined
to accept this advice and they were in the process
25Page 26
of cutting their hair. But then another mob came
which, according to PW 11, consisted of 200-250
persons — this number has been given as 1000-
1200 by PW 2. According to PW 4 the mob
consisted of 100 persons. PW 8 did not give the
number. We are really not concerned with the
number as such. Suffice it to say that the mob was
a big one. This mob caused havoc and the
members of this mob too were armed with iron rods
and sticks. It is at the hands of this mob that,
according to the aforesaid PWs, Himmat Singh and
Wazir Singh lost their lives. Not only this, to believe
PW 4, her son Wazir Singh was burnt to death and
thrown into the adjoining nullah. PW 2 also had
stated about the mob throwing the murdered
persons in the adjoining nullah. As thousands of
persons have been so dealt with, it would be too
much to expect production of corpus delicti. We
have mentioned about this aspect at this stage itself
because one of the reasons which led the High
Court to acquit the respondents is non-production of
corpus delicti. We are afraid the High Court misread
the situation; misjudged the trauma caused.”
21. It is well settled that discovery of dead body of the
victim has never been considered as the only mode of proving
the corpus delicti in murder. In fact, there are very many cases
of such nature like the present one where the discovery of the
dead body is impossible, specially when members of a
particular community were murdered in such a violent mob
attack on Sikh community in different places and the offenders
tried to remove the dead bodies and also looted articles.
26Page 27
22. As noticed above, the finding of guilt recorded by
the High Court has been challenged by the learned counsel
mainly on the basis of minor discrepancies in the evidence. So
far the instant case is concerned, those minor discrepancies
would not go to the root of the case and shake the basic
version of the witnesses when as a matter of fact important
probabilities factor echoes in favour of the version narrated by
the witnesses. This Court in the case of Bharwada
Bhoginbhai Hirjibhai vs. State of Gujarat, (1983) 3 SCC 217
held that much importance cannot be attached to minor
discrepancies on the following reasons:-
“(1) By and large a witness cannot be
expected to possess a photographic memory and to
recall the details of an incident. It is not as if a video
tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has an
element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the
details.
(3) The powers of observation differ from
person to person. What one may notice, another
may not. An object or movement might emboss its
image on one person's mind, whereas it might go
unnoticed on the part of another.
27Page 28
(4) By and large people cannot accurately
recall a conversation and reproduce the very words
used by them or heard by them. They can only recall
the main purport of the conversation. It is unrealistic
to expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or
the time duration of an occurrence, usually, people
make their estimates by guess-work on the spur of
the moment at the time of interrogation. And one
cannot expect people to make very precise or
reliable estimates in such matters. Again, it depends
on the time-sense of individuals which varies from
person to person.
(6) Ordinarily a witness cannot be expected
to recall accurately the sequence of events which
takes place in rapid succession or in a short time
span. A witness is liable to get confused, or mixed up
when interrogated later on.
(7) A witness, though wholly truthful, is
liable to be overawed by the court atmosphere and
the piercing cross-examination made by counsel and
out of nervousness mix up facts, get confused
regarding sequence of events, or fill up details from
imagination on the spur of the moment. The subconscious mind of the witness sometimes so
operates on account of the fear of looking foolish or
being disbelieved though the witness is giving a
truthful and honest account of the occurrence
witnessed by him — Perhaps it is a sort of a
psychological defence mechanism activated on the
spur of the moment.”
In the case of Leela Ram (dead) through Duli Chand vs.
State of Haryana & Anr., (1999) 9 SCC 525, this Court
observed:-
28Page 29
“11. The Court shall have to bear in mind
that different witnesses react differently under
different situations: whereas some become
speechless, some start wailing while some
others run away from the scene and yet there
are some who may come forward with courage,
conviction and belief that the wrong should be
remedied. As a matter of fact it depends upon
individuals and individuals. There cannot be any
set pattern or uniform rule of human reaction
and to discard a piece of evidence on the ground
of his reaction not falling within a set pattern is
unproductive and a pedantic exercise.
12. It is indeed necessary to note that
one hardly comes across a witness whose
evidence does not contain some exaggeration or
embellishment — sometimes there could even
be a deliberate attempt to offer embellishment
and sometimes in their over anxiety they may
give a slightly exaggerated account. 
The court
can sift the chaff from the grain and find out the
truth from the testimony of the witnesses.
Total
repulsion of the evidence is unnecessary. The
evidence is to be considered from the point of
view of trustworthiness. If this element is
satisfied, it ought to inspire confidence in the
mind of the court to accept the stated evidence
though not however in the absence of the
same.”
23. We have re-appraised the entire evidence of the
prosecution witnesses including the eye-witnesses, namely,
PW-1 Harjit Kaur, PW-4 Sushil Kumar, PW-5 Dr. Harbir
Sharma, PW-6 Jagdish Kumar, PW-7 Mohar Pal and found
29Page 30
that their testimonies have remained unshaken except some
minor discrepancies which have to be ignored.
24. In view of the aforesaid analysis of the facts and
evidence on record, we reach the inescapable conclusion that
the High Court correctly appreciated the evidence and reversed
the findings of the trial court.
25. For the reasons aforesaid, we do not find any merit in this
appeal which is accordingly dismissed.
……………………………..J.
(P. Sathasivam)
……………………………..J.
(M.Y. Eqbal)
New Delhi,
April 8, 2013.
30Page 31
31Page 32

for quashing the proceedings in Complaint Case No.628 of 2011 (Sudha Kant Pandey v. K.L. Singh & Anr.) under Sections 403 and 406 of Indian Penal Code, 1860 (hereinafter referred to as the‘IPC’).=A complaint made after a lapse of 15 years is barred by the provisions of Section 468 Cr.P.C., and the High Court has erred in holding the same to be a continuing offence. As, in pursuance of the High Court’s order dated 25.5.2001, the representation of respondent no.2 dated 21.3.2001 was decided by the Managing Director, IFFCO vide order dated 15.10.2001, the limitation period began from the date of the said order, or at the most from 29.10.2001, that is, the date on which, the order of rejection was communicated. The initiation of criminal proceedings is nothing but an attempt by the frustrated litigant to give vent to his frustration, by invoking the jurisdiction of the criminal court and thus, the proceedings are liable to be quashed .= “In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case.-The instant appeals are squarely covered by the observations made in Kishan Singh (Supra) and thus, the proceedings must be labeled as nothing more than an abuse of the process of the court, particularly in view of the fact that, with respect to enact the same subject matter, various complaint cases had already been filed by respondent No.2 and his brother, which were all dismissed on merits, after the examination of witnesses. In such a fact-situation, Complaint Case No. 628 of 2011, filed on 31.5.2001 was not maintainable. Thus, the Magistrate concerned committed a grave error by entertaining the said case, and wrongly took cognizance and issued summons to the appellants. 34. In view of above, the appeals are allowed. The impugned judgment dated 13.3.2012 is set aside and the proceedings in Complaint Case No. 628 of 2011 pending before the Additional C.J.M., Allahabad, are hereby quashed.

REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO. 61 of 2013




      Udai Shankar Awasthi                             …Appellant


                                   Versus


      State of U.P. & Anr.                                  …Respondents


                                   WITH


                        CRIMINAL APPEAL NO. 62 of 2013




                               J U D G M E N T


      Dr. B.S. CHAUHAN, J.


      1.    Both these appeals have  been  preferred  against  the  impugned
      judgment and order dated  13.3.2012,  passed  by  the  High  Court  of
      Judicature at Allahabad in Criminal Misc.  Application  No.  41827  of
      2011, by which the High Court has rejected the  petition  filed  under
      Section 482 of Code of Criminal Procedure,1973  (hereinafter  referred
      to as the ‘Cr.P.C.’) 
for quashing the proceedings  in  Complaint  Case
      No.628 of 2011 (Sudha Kant Pandey v. K.L. Singh & Anr.) under Sections 403 and 406 of Indian Penal Code, 1860 (hereinafter referred to as the‘IPC’).


      2.    Facts and circumstances giving rise to these appeals are:
      A.    M/s. Manish Engineering Enterprises of  which  respondent  No.2,
      Sudha Kant Pandey, claims to be the proprietor, was given a work order
      by  M/s.  Indian  Farmers  Fertilizer  Cooperative  Ltd.  (hereinafter
      referred to as “IFFCO”), Phulpur unit,  on 1.2.1996 for the purpose of
      conducting  repairs  in  their  plant  worth  an  estimated  value  of
      Rs.13,88,750/-. The said work  order  was  subsequently  cancelled  by
      IFFCO on 7.2.1996.
      B.     Aggrieved,  M/s.  Manish   Engineering   Enterprises   made   a
      representation  dated  21.3.2001,  to  IFFCO  requesting  it  to  make
      payments for the work allegedly done by it. As there was  no  response
      from the management of IFFCO, the said  concern  filed  Writ  Petition
      No. 19922 of 2001  before the  High  Court  of  Allahabad,  seeking  a
      direction  by  it  to  IFFCO  for  the  payment  of   an   amount   of
      Rs.22,81,530.22 for alleged work done by it.
      C.    The High Court disposed of the said  Writ  Petition  vide  order
      dated 25.5.2001, directing IFFCO  to  dispose  of  the  representation
      dated 21.3.2001, submitted by the said concern within a  period  of  6
      weeks.   In pursuance of the order of the High Court dated  25.5.2001,
      the  said  representation  dated  21.3.2001,  was  considered  by  the
      Managing Director of IFFCO and was rejected by way of a speaking order
      dated 15.10.2001, and the same was communicated to  the  said  concern
      vide letter dated 29.10.2001.
      D.    M/s. Manish Engineering Enterprises filed Writ Petition No. 7231
      of 2002 before the High Court of Allahabad for  the  recovery  of  the
      said amount, which stood disposed of vide order dated 20.2.2002,  with
      a direction to pursue  the  remedy  available  under  the  arbitration
      clause contained  in  the  agreement  executed  in  pursuance  of  the
      aforementioned work order.
      E.     M/s.   Manish   Engineering   Enterprises   filed   Arbitration
      Application No. 24 of 2002 before the High Court  of  Allahabad  under
      Section 11 of the Arbitration and Conciliation Act, 1996  (hereinafter
      referred  to  as  ‘the  Act  1996’)  on  24.5.2002,  praying  for  the
      appointment of an arbitrator, in view of the fact that the application
      made by the said concern for the purpose of appointing an  arbitrator,
      had been rejected by IFFCO  as  being  time  barred.  The  High  Court
      therefore, vide judgment and  order  dated  17.10.2003,  appointed  an
      arbitrator. However, the said arbitrator expressed  his  inability  to
      work.  Thus,  vide  order  dated  13.2.2004,  another  arbitrator  was
      appointed.
      F.    M/s. Manish Engineering Enterprises filed a  Claim  Petition  on
      various counts, including one for an amount of  Rs.9,27,182/-  towards
      the alleged removal of  items  from  their  godown  within  the  IFFCO
      premises.
            The learned arbitrator so appointed, framed a  large  number  of
      issues and rejected in particular, the claim  of  alleged  removal  of
      items from the godown of M/s. Manish Enterprises, located  within  the
      IFFCO premises (being issue No.13),  though  he  accepted  some  other
      claims vide award dated 11.3.2007.
            IFFCO filed an application under Section 34 of the Act, 1996 for
      the purpose of setting aside the award  dated  11.3.2007,  before  the
      District Court, Allahabad and the matter is sub-judice.
      G.      Mr.   Sabha   Kant   Pandey,   the   brother   of   respondent
      no.2/complainant, filed Complaint Case No. 4948 of  2009  against  the
      officers of IFFCO on 23.11.2009 under Sections 323, 504, 506, 406  and
      120-B IPC before the  court  of  Special  Chief  Judicial  Magistrate,
      Allahabad. Therein, some witnesses including the said complainant were
      examined.
      H.    Sabha Kant Pandey, the brother of respondent no.2 filed  another
      Complaint  Case No. 26528 of 2009, against the appellants  and  others
      under Sections 147, 148, 323, 504, 506, 201 and 379 IPC. In  the  said
      complainant, the brother of respondent  no.2  was  examined  alongwith
      others as a witness.
      I.    Complaint case no. 4948  of  2009  was  rejected  by  way  of  a
      speaking order passed by the Special Chief Judicial  Magistrate,  vide
      order dated 20.3.2010 under Section 203 Cr.P.C.
      J.    Respondent no.2  filed  Criminal  Complaint  No.  1090  of  2010
      against the appellants and others on  2.4.2010,  under  Sections  323,
      504, 506,  406  and  120-B  IPC  before  the  Special  Chief  Judicial
      Magistrate, Allahabad. After  investigating  the  matter,  the  police
      submitted a report on 18.4.2010  stating  that,  allegations  made  in
      complaint case no. 1090 of 2010 were false.
      K.    The Additional  Chief  Judicial  Magistrate,  vide  order  dated
      18.8.2011 dismissed complaint case no. 26528  of  2009  filed  by  the
      brother of respondent no.2.
      L.    Respondent no.2 filed another complaint case no. 628 of 2011  on
      31.5.2011 under Sections 403 and  406  IPC,  in  which,  after  taking
      cognizance, summons  were  issued  to  the  present  appellants  under
      Sections 403 and 406 IPC on 16.7.2011, and vide order dated 22.9.2011,
      bailable warrants were issued against the appellants by the Addl. CJM,
      Allahabad. Subsequently, vide order dated   21.11.2011,   non-bailable
      warrants were also issued against one of the appellants by  the  Addl.
      CJM, Allahabad.
            In view of the fact that K.L. Singh, appellant  in the connected
      appeal, could not be served properly as the correct  address  was  not
      given, on being requested, the Addl.  CJM  withdrew  the  non-bailable
      warrants on 17.12.2011.
      M.    Aggrieved, the appellants filed Criminal Misc.  Application  No.
      41827 of 2011 under Section 482 Cr.P.C.  before  the  High  Court  for
      quashing the said criminal proceedings, which has been dismissed  vide
      impugned judgment and order.
            Hence, these appeals.


      3.    Shri Mukul Rohtagi and Shri Nagendra Rai, learned senior counsel
      appearing for the appellants, have submitted  that  as  the  complaint
      cases filed by the brother of the respondent no.2  in  regard  to  the
      same subject matter were dismissed by the  magistrate  concerned,  the
      question of entertaining a fresh complaint could not  arise.  A  fresh
      complaint cannot be entertained during the pendency of  the  complaint
      case filed by respondent No. 2, with  respect  to  which,  the  police
      filed a final report, stating the same to be a false  complaint.    It
      was further submitted, that there was suppression of  material  facts,
      as in Complaint Case  No.  628  of  2011,  dismissal  of  the  earlier
      complaint was not disclosed.
 Furthermore, as  the  matter  is  purely
      civil in nature, and in view of the fact that arbitration  proceedings
      with respect to the very same subject matter are presently sub-judice,
      and the claim of respondent  no.2  on  this  count  has  already  been
      rejected   by   the   arbitrator,   entertaining/continuing   criminal
      proceedings in the said matter is clearly an abuse of the  process  of
      the court.
Moreover, the alleged claim is related  to  the  period  of
      1996. 
A complaint made after a lapse of 15  years  is  barred  by  the
      provisions of Section 468 Cr.P.C., and the High  Court  has  erred  in
      holding the same to be a continuing offence.  As, in pursuance of  the
      High Court’s order dated 25.5.2001, the representation  of  respondent
      no.2 dated 21.3.2001 was decided by the Managing Director, IFFCO  vide
      order dated 15.10.2001, the limitation period began from the  date  of
      the said order, or at the most from  29.10.2001, that is, the date  on
      which, the order of rejection was communicated.
            The initiation  of  criminal  proceedings   is  nothing  but  an
      attempt by the frustrated litigant  to give vent to  his  frustration,
      by invoking the jurisdiction of  the  criminal  court  and  thus,  the
      proceedings are liable to be quashed.


      4.     Per  contra,  Shri  Devrrat,  learned  counsel  appearing   for
      respondent no.2, has submitted that the High Court  has  rightly  held
      that the same was in fact, a case of  continuing  offence.  Therefore,
      the question of limitation does not arise. The law does  not  prohibit
      the initiation of criminal proceedings where there has been breach  of
      trust and further,  in  such  a  case,  in  spite  of  the  fact  that
      arbitration  proceedings  are  pending,  a   criminal   complaint   is
      maintainable, and the court  concerned  has  rightly  entertained  the
      same. There is no prohibition in law as regards maintaining  a  second
      application, even though the earlier application has  been  dismissed.
      Thus, the appeals are liable to be dismissed.


      5.    We have considered the rival submissions made by learned counsel
      for the parties as well as by Shri Gaurav  Bhatia  and  Shri  Annurat,
      learned counsel appearing for the  State  of  U.P.  and   perused  the
      record.
            In light of the facts of these cases, it is  desirable  to  deal
      first, with the legal issues involved herein.


      LIMITATION IN CRIMINAL CASES- Section 468 Cr.P.C.:
      6.    Section 468 Cr.P.C. places an embargo  upon  court  from  taking
      cognizance of an offence after the expiry  of  the  limitation  period
      provided therein.
Section 469 prescribes when the period of limitation
      begins.
Section 473 enables the court to condone delay, provided  that
      the  court  is  satisfied  with  the  explanation  furnished  by   the
      prosecution/complainant, and  where,  in  the  interests  of  justice,
      extension of the period of limitation is called for.
The principle  of
      condonation of delay is based on the  general  rule  of  the  criminal
      justice system which states that a  crime  never  dies,  as  has  been
      explained by way of the legal maxim, nullum tempus aut locus  occurrit
      regi (lapse of time is no bar to the  Crown  for  the  purpose  of  it
      initiating proceeding  against  offenders).  
A  criminal  offence  is
      considered as a wrong against the State and  also  the  society  as  a
      whole, even though the same has been committed against an individual.


      7.    The question of delay in launching a criminal prosecution may be
      a circumstance to be taken into  consideration  while  arriving  at  a
      final decision, however, the same may  not  itself  be  a  ground  for
      dismissing the complaint at the  threshold.  
Moreover,  the  issue  of
      limitation must be examined in light of the gravity of the  charge  in
      question. (Vide: Japani Sahoo v. Chandra Sekhar Mohanty, AIR  2007  SC
      2762; Sajjan Kumar v. Central Bureau of Investigation,  (2010)  9  SCC
      368; and Noida Entrepreneurs Association v. Noida & Ors., AIR 2011  SC
      2112).


      8.    The court, while condoning delay has to record the  reasons  for
      its satisfaction, and the same must be manifest in the  order  of  the
      court  itself.  The  court  is  further  required  to  state  in   its
      conclusion, while condoning  such  delay,  that  such  condonation  is
      required in the interest of justice.  (Vide: State of  Maharashtra  v.
      Sharad  Chandra Vinayak Dongre & Ors., AIR 1995 SC 231; and  State  of
      H.P. v. Tara Dutt & Anr., AIR 2000 SC 297).


      9.          To sum up, the law  of  limitation  prescribed  under  the
      Cr.P.C., must be observed, but in certain  exceptional  circumstances,
      taking into consideration the gravity of the  charge,  the  Court  may
      condone  delay, recording reasons for the same, in the event  that  it
      is found necessary to condone such delay in the interest  of  justice.




      CONTINUING OFFENCE:
      10.   Section 472 Cr.P.C.  provides  that  in  case  of  a  continuing
      offence, a fresh period of limitation begins to run at every moment of
      the time period during which the offence  continues.
The  expression,
      ‘continuing offence’ has not been defined in the Cr.P.C. because it is
      one of those expressions which does not have a fixed connotation,  and
      therefore, the formula of universal application cannot  be  formulated
      in this respect.


      11.    In  Balakrishna  Savalram  Pujari  Waghmare  &  Ors.  v.  Shree
      Dnyaneshwar Maharaj Sansthan & Ors., AIR 1959 SC 798, this Court dealt
      with the aforementioned issue, and observed that a continuing  offence
      is an act which creates a continuing source of injury, and renders the
      doer of the act responsible and liable for  the  continuation  of  the
      said injury. In case  a   wrongful  act  causes  an  injury  which  is
      complete,  there  is  no  continuing  wrong  even  though  the  damage
      resulting from the said act may continue. If the wrongful  act  is  of
      such character that the injury caused by it itself continues, then the
      said act constitutes a continuing wrong. The distinction  between  the
      two wrongs therefore depends, upon the effect of the injury.
           In the said case, the court dealt with a case of  a wrongful act
      of forcible ouster, and held that the  resulting  injury  caused,  was
      complete at the date of the ouster itself,  and therefore there was no
      scope for the application of Section  23  of  the  Limitation  Act  in
      relation to the said case.


      12.   In Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah Hiremath &
       Ors.,  (1991) 2 SCC 141, this Court dealt with the issue and held  as
      under:
               “According to the Blacks'  Law  Dictionary,  Fifth  Edition,
               'Continuing' means ‘enduring; not terminated by a single act
               or fact; subsisting for a definite  period  or  intended  to
               cover  or  apply  to  successive  similar   obligations   or
               occurrences.’ Continuing offence means ‘type of crime  which
               is committed over a span of time.’ As to period  of  statute
               of limitation in a continuing offence, the last act  of  the
               offence  controls  for  commencement  of  the   period.   ‘A
               continuing offence, such that  only  the  last  act  thereof
               within the period of the  statute  of  limitations  need  be
               alleged in the indictment or information, is one  which  may
               consist of separate acts or a course of  conduct  but  which
               arises from that singleness of thought,  purpose  or  action
               which may be deemed a single impulse.’ So also a 'Continuous
               Crime' means "one consisting of a continuous series of acts,
               which endures after the  period  of  consummation,  as,  the
               offence of  carrying  concealed  weapons.  In  the  case  of
               instantaneous crimes, the statute of  limitation  begins  to
               run with the consummation, while in the case  of  continuous
               crimes it only begins with the  cessation  of  the  criminal
               conduct or act."




      13.   While deciding the case in Gokak  Patel  Volkart  Ltd.  (Supra),
      this Court placed reliance upon its earlier judgment in State of Bihar
      v. Deokaran Nenshi & Anr., AIR 1973 SC 908, wherein  the  court  while
      dealing with the case of continuance of an offence has held as under:
               “A  continuing  offence  is  one  which  is  susceptible  of
               continuance and is distinguishable from  the  one  which  is
               committed once and for all. It  is  one  of  those  offences
               which arises out of a failure to obey or comply with a  rule
               or  its  requirement  and  which  involves  a  penalty,  the
               liability  for  which  continues  until  the  rule  or   its
               requirement is obeyed or complied with.  On  every  occasion
               that such disobedience or non-compliance occurs and  recurs,
               there is the offence committed. The distinction between  the
               two kinds of offences is between an act  or  omission  which
               constitutes an offence once  and  for  all  and  an  act  or
               omission which continues and therefore, constitutes a  fresh
               offence every time or occasion on which it continues. In the
               case of a continuing offence, there is thus  the  ingredient
               of continuance of the offence which is absent in the case of
               an offence which takes place when  an  act  or  omission  is
               committed once and for all.”


      (See also: Bhagirath Kanoria & Ors. v. State  of  M.P.,  AIR  1984  SC
      1688; and Amrit Lal Chum v. Devoprasad Dutta Roy, AIR 1988 SC 733).


      14.   In M/s. Raymond Limited & Anr.,  Etc.  Etc.  v.  Madhya  Pradesh
      Electricity Board & Ors., Etc. Etc., AIR 2001 SC 238, this Court  held
      as  under:
               “It  cannot  legitimately  be  contended   that   the   word
               "continuously" has  one  definite  meaning  only  to  convey
               uninterrupted ness in time sequence or essence  and  on  the
               other hand the very  word  would  also  mean  'recurring  at
               repeated intervals so as to be of repeated occurrence'. That
               apart, used as an adjective it draws colour from the context
               too.”




      15.   In Sankar Dastidar v. Smt. Banjula Dastidar & Anr., AIR 2007  SC
      514, this Court observed as under:
               “A suit for damages, in our opinion, stands on  a  different
               footing vis--vis a continuous wrong in respect of  enjoyment
               of one's right in a property. When a right of way is claimed
               whether public or private over a certain land over which the
               tort-teaser has no right of possession, the  breaches  would
               be continuing one. It is, however, indisputable that  unless
               the wrong is a continuing one, period of limitation does not
               stop running. Once the period begins to  run,  it  does  not
               stop except  where  the  provisions  of  Section 22  of  the
               Limitation Act would apply.”


           The Court further held:
               “Articles 68, 69 and 91 of the Limitation Act  govern  suits
               in  respect  of  movable  property.  For  specific   movable
               property  lost  or   acquired   by   theft,   or   dishonest
               misappropriation  or  conversion;   knowledge   as   regards
               possession of the party  shall  be  the  starting  point  of
               limitation in terms of Article 68. For  any  other  specific
               movable property, the time from which the period  begins  to
               run would be when the property is wrongfully taken, in terms
               of  Article  69.  Article  91  provides  for  a  period   of
               limitation  in  respect  of  a  suit  for  compensation  for
               wrongfully taking or injuring or  wrongfully  detaining  any
               other specific movable property. The  time  from  which  the
               period  begins  to  run  would  be  when  the  property   is
               wrongfully  taken  or  injured  or   when   the   detainer's
               possession becomes unlawful.”


      16.   Thus, in view of  the  above,  the  law  on  the  issue  can  be
      summarised  to the effect that, in the case of a  continuing  offence,
      the ingredients of the offence continue, i.e., endure even  after  the
      period of consummation,  whereas  in  an  instantaneous  offence,  the
      offence takes place once and for all i.e. when the same actually takes
      place.  In such cases, there is no continuing offence, even though the
      damage resulting from the injury may itself continue.
   
  SECOND COMPLAINT ON SAME FACTS-MAINTAINABILITY:
      17.   While considering the issue at hand in Shiv Shankar  Singh  v.
      State of  Bihar  &  Anr.,  (2012)  1  SCC  130,  this  Court,  after
      considering its earlier judgments in Pramatha Nath Talukdar v. Saroj
      Ranjan Sarkar  AIR 1962 SC 876; Jatinder Singh & Ors. v. Ranjit Kaur
      AIR 2001 SC 784; Mahesh Chand v. B. Janardhan Reddy & Anr., AIR 2003
      SC 702; Poonam Chand Jain & Anr. v. Fazru AIR 2005 SC 38 held:

                 “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, 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.”


      18.   The present appeals require to be decided on the  basis  of  the
      settled legal propositions referred to hereinabove.


            Complaint Case No.4948 of 2009 was filed by Sabha  Kant  Pandey,
      brother of respondent no.2, wherein, he claimed to be a partner in the
      firm  M/s  Manish  Engineering  Enterprises,  against   one   of   the
      appellants and other officers of IFFCO, under Sections 323, 504,  506,
      406 and 120B IPC at  Police  Statition  Phulpur,  District  Allahabad,
      alleging that the said Firm had been given  a  separate  godown/office
      within the IFFCO compound, wherein their articles worth Rs.30-40 lacs,
      as well as  their  documents  were  kept.   The  complainant  was  not
      permitted to remove them and additionally,   even the payment for  the
      work done by the firm was not made, on certain technical grounds.  The
      officers of  IFFCO,  including  Mr.  U.S.  Awasthi  -  the  appellant,
      misbehaved with the complainant and kept the said articles worth Rs.30-
      40 lacs, as also the important documents, in  addition  to  the  entry
      gate pass required  to enter the plant  by  the  complainant  and  his
      brother  Sudhakant  (respondent  no.2  herein),  therefore  making  it
      impossible for them to access their godown.


      19.   The complaint was dealt  with  appropriately  by  the  competent
      court,  wherein  the  present  complainant  was  also  examined  as  a
      prosecution witness. The Court took note of the fact  of  pendency  of
      the Arbitration Proceedings with respect to the payment of  dues,  and
      came to the conclusion that  the  complaint  had  been  filed  to  put
      pressure  on  IFFCO  to  obtain  payments.   The  said  complaint  was
      dismissed on merits.


      20.   Complaint Case No.26528 of 2009  was  then  filed  by  Sabhakant
      Pandey, brother of respondent no.2, against one of the appellants  and
      also other officers of IFFCO under Sections 147, 148, 323,  504,  506,
      201 and 379 IPC in Police Statition Phulpur, Allahabad, making similar
      allegations, and giving full  particulars  of  the  outstanding  dues.
      That complaint was heard and  disposed  of  by  the  competent  court,
      taking note of the fact that there had been a cross-complaint  by  the
      officers of IFFCO, wherein allegations were made to the effect that on
      19.12.2008, Arbitration Proceedings in Case No.1 of 2007 took place at
      the residence of the Arbitrator, a retired Judge of the Allahabad High
      Court, wherein Sabha Kant Pandey and Sudha Kant Pandey misbehaved with
      the Arbitrator, and he was hence forced to adjourn the hearing of  the
      case.  Subsequently, they stood in front of  his   house  and  shouted
      slogans, abusing the officers of IFFCO and even tried to beat them up.
       The court dismissed the said complaint after recording the  following
      findings:
                 “In the opinion  of  the  court,  the  complaint  filed  by
                 Sabhakant  Pandey  is  imaginary,  a  bald  story  with  an
                 intention  to  put  illegal  pressure  and  by  suppressing
                 material facts in the complaint.”


      21.   Complaint  Case  No.1090  of  2010  was  filed  by  the  present
      complainant,  respondent  no.2  against  the  appellant  Udai  Shankar
      Awasthi and other officers of IFFCO under Sections 323, 504, 506,  406
      and 120B IPC, making similar allegations  as  were  mentioned  in  the
      first complaint, to the effect that articles worth  Rs.15-20  lacs  in
      each godown were  lying  in  the  premises  of  IFFCO,  and  that  the
      complainant was not permitted to remove the same.  In the  said  case,
      after investigation, the police filed the final  report  stating  that
      all the allegations made in the complaint were false.  The  concluding
      part of the report reads as under:
                       “For last 6 months no body has turned up to  get  his
                 statement recorded in spite of notice.  The application had
                 been  filed  on  false  facts  and  complaint  was   bogus,
                 forceless and baseless and was liable to be dismissed.”


      22.   So far as the present complaint is concerned, the same has  been
      filed under Sections 415, 406 and 403 IPC, wherein the allegation that
      their Bill had been cleared on 10.7.1996, but the  requisite  payment,
      to the tune of Rs.22,81,530/- was not made to the complainant.   Their
      claim for payment was wrongly rejected. Certain articles and documents
      belonging to the complainant were lying within the premises  of  IFFCO
      and the same were not returned to the complainant despite requests for
      the same.  In this case, after taking cognizance, summons were  issued
      on 16.7.2011, under Sections 403 and 406 IPC, though  the  case  under
      Section 415 IPC stood rejected.


      23.   It is evident that in the said complaint, no reference was  made
      by the complainant as regards the Arbitration Proceedings.  There  was
      also no disclosure of facts to show that earlier complaints in respect
      of the same subject matter, had been dismissed on merits by  the  same
      court.


      24.   A copy of the Award made by the Arbitrator was placed on record,
      wherein issue no.13 which dealt with  the  present  controversy,  i.e.
      some material and documents were placed in the premises of  IFFCO  and
      the return of the same was refused.  The claim as  regards  the  same,
      has been rejected.   There has been no mention of such claim  and  its
      rejection by the said concern, in either of the writ  petitions  filed
      before the High  Court  earlier  or  even  for  that  matter,  in  the
      application filed by the said concern before IFFCO, for the purpose of
      making appointment of an arbitrator, or in the application filed under
      Section 11 of the Act, 1996 before the High Court.


      25.   In the counter affidavit filed by respondent no.2, it  has  been
      submitted that the contract was terminated by IFFCO  fraudulently,  to
      usurp the entire amount towards the work done by  it  and  that  IFFCO
      took illegal possession of all the goods and articles belonging to the
      firm lying within its premises, and as the amount had not  been  paid,
      the officers  were  guilty  of  criminal  breach  of  trust  and  were
      therefore, liable to be punished.   However,  the  fact  that  earlier
      complaints had been filed by the brother of respondent no.2 Sabha Kant
      Pandey  has  been  admitted.   It  has  further  been  admitted   that
      Arbitration  Proceedings  are  still  pending,   but   it   has   also
      simultaneously been urged that criminal prosecution has nothing to  do
      with the Arbitral award.


      26.  The Magistrate had issued summons without meeting  the  mandatory
      requirement of Section 202 Cr.P.C., though the appellants were outside
      his  territorial  jurisdiction.    
The  provisions  of  Section  202 Cr.P.C. were amended vide Amendment Act 2005, making it  mandatory  to postpone the issue of process where the accused  resides  in  an  area beyond the territorial jurisdiction of the Magistrate  concerned.  
The
      same was found necessary in order to  protect  innocent  persons  from
      being harassed by unscrupulous persons and making it  obligatory  upon
      the Magistrate  to  enquire  into  the  case  himself,  or  
to  direct
      investigation to be made by a police officer, or by such other  person
      as he thinks fit for the purpose of finding out whether or not,  there
      was sufficient  ground  for  proceeding  against  the  accused  before
      issuing summons in such cases.. (See also: Shivjee Singh  v.  Nagendra
      Tiwary & Ors., AIR 2010 SC 2261; and National Bank of Oman v. Barakara
      Abdul Aziz & Anr., JT 2012 (12) SC 432).


      27.   Section 403 IPC provides for a maximum punishment of 2 years, or
      fine or both; and Section 406 IPC provides for a maximum punishment of
      3 years, or  fine  or  both.    The  limitation  period  within  which
      cognizance must be taken, as per the  provisions  of  Section  468  of
      Cr.P.C. is  three years.  In the case of an instantaneous offence,  as
      per the provisions of Section  469  of  the  Cr.P.C.,  the  period  of
      limitation commences on the date of offence.
In  the  instant  case,
      admittedly, the claim of the said  firm  was  rejected  by  way  of  a
      speaking order dated 15.10.2001, in pursuance of the order of the High
      Court dated 25.5.2001, and the said order was communicated vide letter
      dated 29.10.2001.
Respondent No. 2 correctly understood the nature of
      the offence and, therefore, subsequently approached the High Court for
      the purpose of seeking recovery of outstanding dues, wherein the  High
      Court  directed  him  to  pursue  the  remedy  available   under   the
      arbitration agreement between the parties.
 In such a fact  situation,
      it is beyond our imagination as to how the offence involved herein can
      possibly be termed as a  continuing  offence.
 In  fact,  the  damage
      caused by virtue of non-payment of their  dues,  if  any,  is  legally
      sustainable, may continue, but the offence is  most  certainly  not  a
      continuing offence, as the same has not recurred subsequent  to  order
      dated  15.10.2001,  even  though  the  effect  caused  by  it  may  be
      continuous in nature.


           In Arun Vyas & Ors. v. Anita Vyas, AIR 1999 SC 2071, this  Court
      held that in a case of cruelty, the starting point of limitation would
      be the last act of cruelty.  (See also: Ramesh  &  Ors.  v.  State  of
      Tamil Nadu, AIR 2005 SC 1989).


      28.   Approaching the court at a belated stage for a  rightful  cause,
      or even for the violation of the fundamental rights, has  always  been
      considered as a good ground for its rejection at the  threshold.   The
      ground taken by the learned counsel for  respondent  No.  2  that  the
      cause of action arose on 20.10.2009 and 5.11.2009, as  the  appellants
      refused to return money and other materials, articles and record, does
      not have substance worth consideration.  In case a  representation  is
      made by the person aggrieved and the same is rejected by the competent
      statutory authority, and such an order is communicated to  the  person
      aggrieved, making repeated representations will not enable  the  party
      to explain the delay.


      29.   In Rabindra Nath Bose & Ors. v. Union of India & Ors., AIR  1970
      SC  470,  in  spite  of  the  fact  that  the  Government  rejected  a
      representation  and  communicated  such  rejection  to  the  applicant
      therein,  his  subsequent  representations  were  entertained  by  the
      Government.  A Constitution Bench of this Court held as under:


               “He says that the representations were being received by the
               government all the time. But there is a limit  to  the  time
               which   can   be   considered    reasonable    for    making
               representations. If  the  Government  has  turned  down  one
               representation, the  making  of  another  representation  on
               similar lines would not enable the  petitioners  to  explain
               the delay.”                           (Emphasis added)




      30.   In State of Orissa v. Sri Pyarimohan Samantaray & Ors., AIR 1976
      SC 2617; State of Orissa etc. v. Shri Arun Kumar Patnaik & Anr.  etc.,
      etc., AIR 1976 SC 1639; and  Swatantar Singh v.  State  of  Haryana  &
      Ors., AIR 1997 SC 2105, a similar view has been reiterated.


      31.   The view taken by this Court in Rabindra Math Bose  (Supra)  has
      been approved and followed in Sri Krishna Coconut  Co.  etc.  v.  East
      Godavari Coconut and  Tobacco  Market  Committee,  AIR  1967  SC  973,
      Karnataka Power Corporation Ltd. & Anr. v. K. Thangappan &  Anr.,  AIR
      2006 SC 1581; and Eastern Coalfields Ltd. v. Dugal Kumar, AIR 2008  SC
      3000.


      32.   In Kishan Singh (dead) thr. Lrs. v. Gurpal Singh & Ors. AIR 2010
      SC 3624, this court while dealing with a case of inordinate  delay  in
      launching a criminal prosecution, has held as under:
               “In cases where there is a delay in lodging a FIR, the Court
               has to look for a plausible explanation for such  delay.  In
               absence of such an explanation, the delay may be fatal.  The
               reason for quashing such proceedings may not be merely  that
               the allegations were an afterthought or had given a coloured
               version of events. In such cases the court should  carefully
               examine the facts before it for the reason that a frustrated
               litigant who failed to succeed before the  Civil  Court  may
               initiate criminal proceedings just to harass the other  side
               with mala fide intentions or the ulterior motive of wreaking
               vengeance on  the  other  party.  Chagrined  and  frustrated
               litigants should not be permitted  to  give  vent  to  their
               frustrations by cheaply invoking  the  jurisdiction  of  the
               criminal court.  The  court  proceedings  ought  not  to  be
               permitted to degenerate into  a  weapon  of  harassment  and
               persecution. In such a case, where an FIR is lodged  clearly
               with a view to spite the other party because  of  a  private
               and personal grudge and to enmesh the other  party  in  long
               and arduous criminal proceedings, the court may take a  view
               that it amounts to an abuse of the process  of  law  in  the
               facts and circumstances of  the  case.  (Vide  :  Chandrapal
               Singh & Ors. v. Maharaj Singh &  Anr.,  AIR  1982  SC  1238;
               State of Haryana & Ors. v. Ch. Bhajan Lal & Ors.,  AIR  1992
               SC 604; G. Sagar Suri & Anr. v. State  of  U.P.&  Ors.,  AIR
               2000 SC 754; and Gorige Pentaiah v. State of  A.P.  &  Ors.,
               (2008) 12 SCC 531).”




      33.   The instant appeals are squarely  covered  by  the  observations
      made in Kishan Singh (Supra) and thus, the proceedings must be labeled
      as  nothing  more  than  an  abuse  of  the  process  of  the   court,
      particularly in view of the fact that, with respect to enact the  same
      subject matter, various complaint cases  had  already  been  filed  by
      respondent No.2 and his brother, which were all dismissed  on  merits,
      after  the  examination  of  witnesses.   
In  such  a  fact-situation,
      Complaint  Case  No.  628  of  2011,  filed  on  31.5.2001   was   not
      maintainable.  
Thus, the Magistrate concerned committed a grave  error by entertaining the said case, and wrongly took cognizance and  issued summons to the appellants.


      34.   In view  of  above,  the  appeals  are  allowed.   The  impugned
      judgment dated 13.3.2012 is set aside and the proceedings in Complaint
      Case No. 628 of 2011 pending before the Additional C.J.M.,  Allahabad,
      are hereby quashed.





     …….…………….....................J.
                                              (Dr. B.S. CHAUHAN)



     ............………............................J.
                                        (JAGDISH SINGH KHEHAR)



      New Delhi,
      January 9, 2013