the recovery of the contraband i.e. Poppy Husk from the conscious possession of the accused persons. That the samples were properly sampled, sealed and forwarded to the Forensic Science Laboratory through Malkhana also stands established. The certificate of the Chemical Examiner, FSL to the effect that the seal of the samples was found intact and that the same tallied with the specimen seals also rules out the possibility of any tampering therewith. The fact that the contraband was recovered from the car while the same was being driven by one of the accused persons in the company of the other also authenticate the charge of their conscious possession thereof. The haul of six bags of Poppy Husk is substantial so much so that it negates even the remote possibility of the same being planted by the police. Furthermore no evidence with regard to bias or malice against the Investigating Agency has been adduced. (19) In the wake of the above, we are of the unhesitant opinion in the face of the evidence on record, that the prosecution has been able to prove the charge against the accused persons beyond all reasonable doubt. The Courts below have appreciated the materials on record in the correct legal and factual perspectives and the findings recorded do not merit any interference. The appeal is thus dismissed.

                                                                  REPORTABLE

                             IN THE SUPREME COURT OF INDIA
                            CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.  1096 OF 2016
              (ARISING OUT OF S.L.P (CRIMINAL) NO.6093 OF 2015)


DILBAGH SINGH                               .…APPELLANT


                                   VERSUS

STATE OF PUNJAB                                    ....RESPONDENT

                               J U D G M E N T


AMITAVA ROY, J.

(1)   Heard Ms. Aparna Jha, learned counsel for the  appellant  and  Mr.  V.
Madhukar, learned counsel for the respondent.

(2)   The appellant, faced with  concurrent  determinations  culminating  in
his conviction along with another, under Section 15 of  the  Narcotic  Drugs
and Psychotropic Substances Act, 1985 (for short “the Act”) is  before  this
Court seeking redress.  Whereas the Trial Court, upon the  entering  finding
of guilt had sentenced the accused persons with  rigorous  imprisonment  for
10 years and six months  each  and  fine  of  Rs.1  lac  each  with  default
sentence of rigorous imprisonment for one year, the  High  Court  in  appeal
has confirmed the verdict in toto by the decision impugned herein.

(3)   The prosecution case unfolds with the interception  of  the  appellant
and the co-accused Ranjit Singh by the  patrol  party  on  28.08.2007  while
they were travelling in a car bearing registration  No.MH-04BS-1651  at  the
check point at Khanauri Patran. One Baaj Singh, apart from the police  party
was then present. The appellant and his companion,  on  being  interrogated,
disclosed their names. Their car on search revealed six  bags  stuffed  with
Poppy Husk.

(4)   The Investigation Officer, A.S.I. Satnam Singh introduced himself  and
apprised the appellant and the co-accused of their right to be  searched  in
the presence of a Gazetted Officer or a Magistrate if they  so  desired  but
they declined and instead reposed confidence in him. After  recording  their
consent in writing the car was searched in presence of the other members  of
the patrol party as well as Baaj Singh and  in  course  thereof  three  bags
each  from  the  rear  seat  and  the  dicky,  containing  Poppy  Husk  were
recovered. Samples were taken and sealed with  specimen  impression  of  the
Investigating Officer.  On  weighment  of  the  remaining  Poppy  Husk,  the
contraband weighed 34 kg. 800 gms in  each  bag  minus  the  samples  taken.
Personal search of the appellant and  the  co-accused  yielded  currency  of
Rs.225/- and Rs.150/- respectively which were also seized.  The  information
of the exercise was forwarded to the police station on which  a  formal  FIR
was lodged.

(5)   The sealed  samples  as  well  as  the  contraband  as  a  whole  were
deposited in the malkhana  and  were  also  produced  before  the  concerned
Magistrate on the next date along with the accused persons.  The  sample  on
chemical examination by the Forensic Science Laboratory disclosed  the  same
to be of Poppy Husk. Eventually, on completion of the investigation  challan
was submitted and the appellant and the co-accused were made to  face  trial
under Sections 15 and 25 of the Act, as they pleaded “not guilty”.

(6)   In support of the  charge,  the  prosecution  examined  PW-1/Constable
Ravinder Singh, PW-2/S.I. Jaswinder Singh, PW-3/M.H.C. Shamsher  Singh,  PW-
4/A.S.I. Satnam Singh, PW-5/H.C. Darbara Singh and PW-6 Parminderpal  Singh,
who had participated in the entire drill.

(7)   All the incriminating  circumstances  were  laid  before  the  accused
persons in course of their examination under Section 313  Cr.P.C.  and  they
denied the correctness thereof and complained of false implication.

(8)   The Trial Court on a consideration  of  the  evidence  on  record  and
after analysing the rival contentions held  the  charge  to  be  proved  and
convicted and sentenced both the accused persons  as  above.  The  appellant
unsuccessfully challenged  the  conviction  and  sentence  before  the  High
Court.

(9)   The learned counsel  for  the  appellant  has  asserted  that  as  the
Investigating  Agency  had  contravened  the  mandatory   prescriptions   of
Sections 50 and 57 of the Act, the conviction recorded by the  Courts  below
is patently illegal and non est in law. According to her,  though  allegedly
Poppy Husk was recovered from the car in which the  appellant  and  the  co-
accused were travelling at the relevant point  of  time,  adherence  to  the
mandate of Section 50 of the Act was indispensable. Similarly, as no  report
of the operation  undertaken  by  the  Investigating  Agency  involving  the
alleged seizure of the contraband had been reported to the superior  officer
concerned, the exercise was in gross defiance of the edict of Section 57  of
the Act rendering the same null  and  void.  The  learned  counsel  for  the
appellant, to reinforce  the  above  pleas  has  pressed  into  service  the
decision of this Court in Mohinder Kumar vs. State, Panaji, Goa –  (1998)  8
SCC 655. No other argument has been advanced.

(10)  As against this, the learned counsel for the respondent  has  insisted
that the investigation had been conducted in meticulous  compliance  of  the
dicta of the law qua Sections 50 and 57 of the Act in particular.  Not  only
the accused persons were duly apprised of their right of search in  presence
of a Gazetted Officer or a Magistrate before the search of their  car,  they
were afforded all opportunities  to  offer  their  defence  in  the  process
undertaken. According to the learned counsel,  the fact of the  interception
of the  accused  persons  and  the  recovery  of  the  contraband  had  been
communicated to the concerned police station and  to  the  Ilaka  Magistrate
through the higher officer i.e., Deputy  Superintendent  of  Police  without
any delay whatsoever.  The sample with the stock of Poppy Husk was  properly
sealed and deposited with the malkhana  immediately  as  per  the  procedure
prescribed as well, he urged. The learned  counsel  further  submitted  that
though in a way, compliance of Section 50 of the Act was inessential in  the
facts  of  the  case,  as  the  vehicle  was  searched  which  yielded   the
contraband, the Investigating Officer by way of abundant caution did  adhere
thereto as well. As the information with regard to the entire gamut  of  the
investigation  had  been  forwarded  to  the  higher  officer  i.e.   Deputy
Superintendent of Police and to the concerned Magistrate without any  delay,
the demur based on Sections 50 and 57 of the Act  is  wholly  misplaced,  he
urged.

(11)  The evidence on record as well as the rival assertions have been  duly
evaluated.

(12)  As the essence  of  the  impeachment  is  the  non-compliance  of  the
enjoinment of Sections 50 and 57 of the  Act,  for  ready  reference,  these
provisions are extracted herein below:

“50. Conditions under which search of persons shall be conducted - (1)  When
any officer duly authorised under Section 42 is about to search  any  person
under the provisions of Section 41, Section 42 or Section 43, he  shall,  if
such person so requires, take such person without unnecessary delay  to  the
nearest Gazetted Officer of any of the departments mentioned in  Section  42
or to the nearest Magistrate.





(2) If such requisition is made, the officer may detain the person until  he
can bring him before the Gazetted Officer or the Magistrate referred  to  in
sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any  such  person  is
brought shall, if  he  sees  no  reasonable  ground  for  search,  forthwith
discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason  to  believe
that it is not possible to take the person to be  searched  to  the  nearest
Gazetted Officer or Magistrate without the possibility of the person  to  be
searched parting with  possession  of  any  narcotic  drug  or  psychotropic
substance, or controlled substance or article or document, he  may,  instead
of taking such  person  to  the  nearest  Gazetted  Officer  or  Magistrate,
proceed to search the person as provided under section 100 of  the  Code  of
Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section  (5),  the  officer  shall
record the reasons for  such  belief  which  necessitated  such  search  and
within seventy-two hours send a  copy  thereof  to  his  immediate  official
superior.



57.   Report of arrest and seizure - Whenever any person  makes  any  arrest
or seizure under this Act, he shall, within  forty-eight  hours  next  after
such  arrest or seizure, make a full report of



all the particulars of such arrest or  seizure  to  his  immediate  official
superior.




(13)  Whereas the conditions under which,  the  search  as  contemplated  in
Section 50 are limited only to the contingency  of  search  of  any  person,
Section 57 prescribes that whenever any person makes any arrest  or  seizure
under the Act, he would within 48 hours next after such arrest  or  seizure,
make a full report of all the particulars of such arrest or seizure  to  his
immediate official superior. As  it  is  no  longer  res  integra  that  the
application of Section 50 of the Act is comprehended and called for only  in
the case of search of a person as distinguished from search of any  premises
etc. having been authoritatively propounded by the  two  Constitution  Bench
rulings of this Court in State of Punjab vs. Baldev Singh  –  (1999)  6  SCC
172 and Vijaysinh Chandubha Jadeja vs. State of Gujarat – (2011) 1 SCC  609,
further dilation in this regard, in the attendant  facts  and  circumstances
of the case, is considered inessential. This is more so  as  the  contraband
in the case in hand had been recovered from inside  the  car  in  which  the
petitioner and the co-accused were travelling at the relevant point of  time
and not in course of the search of their person.  Noticeably,  it  had  also
not been the plea of the defence ever that the alleged seizure according  to
the accused persons had been from their  person.  In  the  contextual  facts
therefore, Section 50 has  no  application  to  espouse  the  cause  of  the
defence.

(14)  Qua the imputation of non-adherence of the requisites  of  Section  57
of the Act, suffice it to note that both the Courts below, on an  analytical
appreciation of the evidence on record have concurrently concluded that  the
Investigating Officer at the site, had  after  the  arrest  of  the  accused
persons and or seizure of the  contraband  forwarded  the  information  with
regard thereto to his  higher  officer,  namely,  Deputy  Superintendent  of
Police without any delay  and  that  the  related  FIR  with  the  necessary
endorsements therein had reached the Ilaka Magistrate on the same date  i.e.
28.08.2007 at 9 p.m. There is no evidence forthcoming or referred to by  the
learned counsel for the petitioner to either  contradict  or  decimate  this
finding based on records. In this view of the matter as well, the  assertion
of non-compliance of Section 57 of the Act does not commend for  acceptance.
In our view, having regard to  the  facts  available,  the  requirements  of
Section 57 of the Act had been duly complied with as well.

(15)  The decision in Mohinder Kumar (supra) not only is distinguishable  on
facts,  as  the  search  therein  was  of  the  petitioner's  premises,  the
investigation was afflicted as well by several other omissions on  the  part
of the authority conducting the same.  Though  in  this  rendering,  it  was
observed that  in State of Punjab vs. Balbir Singh – (1994) 3 SCC 299    the
provisions of Sections 52 and 57 of the Act had  been held to  be  mandatory
in character, it is pertinent to note that this Court in Sajan  Abraham  vs.
State of Kerala – (2001) 6 SCC 692 had exposited that  Section  57  was  not
mandatory in nature so much so that if a substantial compliance  thereof  is
made, it would not vitiate the case of  the  prosecution.  Incidentally  the
decision rendered in Balbir Singh (supra) was rendered by  a  Coram  of  two
Hon’ble Judges whereas the one in Sajan  Abraham  (supra)  was  by  a  three
Judge Bench.

(16)  In Balbir Singh (supra), a Bench of two Hon'ble Judges of  this  Court
had enunciated, adverting to Sections 52  and  57  of  the  Act  that  these
provisions  contain certain procedural instructions  for  strict  compliance
by the officers, but clarified that if there  was  none,  such  omission  by
itself would not render the acts done by them  null  and  void  and  at  the
most, it may affect the probative value  of the  evidence  regarding  arrest
or search and in some cases, it may invalidate such arrest or  search.  That
the non-compliance had caused prejudice  to  the  accused  persons  and  had
resulted in failure of  justice   was  necessary  to  be  demonstrated,  was
emphasised.  It was ruled that these provisions, which deal with  the  steps
to be taken by the officers after making arrest or seizure under Section  41
and 44 are by themselves not mandatory and if there  was  non-compliance  or
any delay was involved with regard thereto, then it has to be  examined,  to
ascertain  as to whether  any prejudice had been caused to the  accused  and
further whether, such failure would have  a bearing on the  appreciation  of
evidence regarding  arrest or seizure as well as on the merits of the  case.


(17)  Be that as it may, having regard to the evidence  available  attesting
the compliance of the requisites of Section 57 of the  Act  in  the  instant
case, we need not be detained by this issue in praesenti.

(18)  Aside the above, an appraisal of  the  testimony  of  the  prosecution
witnesses and in particular of PW-4 ASI/Satnam  Singh  and  PW-5  HC/Darbara
Singh, the  seizure  witnesses,  fully  substantiate  the  recovery  of  the
contraband i.e. Poppy Husk from the  conscious  possession  of  the  accused
persons.  That the samples were properly sampled, sealed  and  forwarded  to
the Forensic Science Laboratory through Malkhana  also  stands  established.
The certificate of the Chemical Examiner, FSL to the effect  that  the  seal
of the samples was found intact and that the same tallied with the  specimen
seals also rules out the possibility of any tampering  therewith.  The  fact
that the contraband was recovered from the car  while  the  same  was  being
driven by one of the accused persons  in  the  company  of  the  other  also
authenticate the charge of their conscious possession thereof.  The haul  of
six bags of Poppy Husk is substantial so much so that it  negates  even  the
remote possibility of the same being planted by the police.  Furthermore  no
evidence with regard to bias or malice against the Investigating Agency  has
been adduced.

(19)  In the wake of the above, we are of  the  unhesitant  opinion  in  the
face of the evidence on record, that the prosecution has been able to  prove
the charge against the accused persons  beyond  all  reasonable  doubt.  The
Courts below have appreciated the materials on record in the  correct  legal
and factual  perspectives  and  the  findings  recorded  do  not  merit  any
interference. The appeal is  thus  dismissed.  The  Trial  Court  is  hereby
directed to take immediate follow up the steps so  as  to  ensure  that  the
sentence awarded is served out by the accused persons.



.............................................J.
                            (DIPAK MISRA)



 ............................................J.
                            (AMITAVA ROY)
NEW DELHI;
NOVEMBER  28, 2016.

On a consideration of the totality of the circumstances attendant on the case, we are of the opinion that the conviction of the appellants under Section 304-Part 1 read with Sections 147,148,149 IPC, as recorded by the High Court, is justified. However, in our view, having regard to the singular facts and circumstances, we are inclined to reduce the sentence for the offence under Section 304-Part I/149 IPC to rigorous imprisonment for 7 years. The other sentences are hereby affirmed.

                                                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                      CRIMINAL APPE2LLATE JURISDICTION

                     CRIMINAL APPEAL NO.  1157  OF 2016
              (ARISING OUT OF S.L.P (CRIMINAL) NO.8415 OF 2016)

RAM AUTAR & ORS.                      .…APPELLANT


VERSUS



STATE OF U.P.                                   ....RESPONDENT

                               J U D G M E N T

AMITAVA ROY, J.



(1)   Leave granted.

(2)   The appellants hereby  assail  the  affirmation  of  their  conviction
under Sections 147,148, 149 Indian Penal Code (for short, hereinafter to  be
referred to as  “IPC”) as recorded by the  Trial  Court.   By  the  decision
impugned, the High Court, however has  altered  their  conviction  from  one
under Section 302 IPC to Section 304-Part I IPC.   Thereby,  the  appellants
now stand sentenced to undergo rigorous imprisonment for  10  years  and  to
pay a fine of Rs.5000/-, in  default,  to  suffer  simple  imprisonment  for
further two months for this offence.  All sentences  have  been  ordered  to
accrue concurrently.

(3)   We have heard Dr. J.P. Dhanda, learned counsel for the appellants  and
Mr. Ravi Prakash Mehrotra, learned counsel for the State.

(4)   The genesis of the arraignment  is  traceable  to  the  incident  that
witnessed the deadly assault on Lalni  @  Raj  Kumar,  the  brother  of  the
informant Gaya Prasad, on 04.04.1982 at 1.00 p.m. within  the  precincts  of
the house of the deceased.

(5)   As the first information laid at 3.15 p.m.  on  the  same  date  would
reveal, in the morning thereof, the cattle of the deceased had strayed  into
the fields of Suraj Bali and others and had allegedly  destroyed  the  Arhar
crop of the accused persons.  On being abused  by  them  (accused  persons),
the deceased herded back the cattle and returned  home  crestfallen.   While
he was sitting in his compound in the afternoon at about 1.00  p.m.  and  in
the company of the informant his  brother,  Gaya  Prasad  PW-1  as  well  as
Sitaram PW-2 and Ram Sajeewan @ Dhunna PW-4, altercation broke  out  between
him and the accused persons  including  the  appellants,  who  resided  next
door, on the same issue.   The  heated  exchanges  that  followed  escalated
tempers, whereupon as per the prosecution, the appellants along with   Suraj
Bali and Chandra Bali  pounced  on  the  deceased,  in  a  body.   On  being
exhorted by Suraj Bali to eliminate the  deceased,  appellant  Deo  Munni  @
Putti, at his instance, brought his gun and fired at Lalni.  As Lalni  fell,
being injured, the  other  accused  persons  joined  in  the  assaults  with
lathis.  The informant and  the  other  two  witnesses  though  intended  to
intervene, they were prevented from doing so, by pointing  the  gun  towards
them.  Lalni died at the spot.

(6)   On the lodgement of the FIR with the police at  about  3.15  p.m.,  as
herein before mentioned, case was registered under Sections 302,147,148  and
149 IPC.  In course of the investigation,  inquest  on  the  dead  body  was
conducted and the sketch map of the place of occurrence was prepared.  After
the charge-sheet was laid against the accused  persons,  charge  was  framed
under Section 302, read with Sections 147/149 IPC against them, they  having
 pleaded “not guilty”.  Additionally, charge under Section 148  also  framed
against appellant Deo Munni @ Putti who was armed  with gun,  as  indicated,
herein before.

(7)   The prosecution examined  as  many  as  six  witnesses  including  eye
witnesses, namely; Gaya  Prasad  (PW-1),  Sitaram  (PW-2),  Ram  Sajeewan  @
Dhunna (PW-4), besides Dr. S.C.  Srivastava  (PW-5)  and  Brahm  Dev  Singh,
Investigating Officer (PW-6).

(8)   On the completion of  the  prosecution  evidence,  statements  of  the
accused persons  were  recorded  under  Section  313  Cr.P.C..    They  also
examined Shyam Lal as their witness in defence.

(9)   The Trial Court, on an exhaustive  appreciation  of  the  evidence  on
record, convicted all the accused persons  under  Sections  302,147,148  and
149 IPC as  mentioned  therein.   They  were  amongst  others  sentenced  to
undergo imprisonment for life for the offence under Section 302  IPC.   They
were sentenced as well for the other offences.

(10)  As referred to hereinabove, the High Court  in  appeal  sustained  the
conviction under Sections  147/148/149  IPC  but  moderated  the  conviction
under Section 302 IPC to one under  Section  304-Part  I  and  the  sentence
therefor was ordained to be rigorous imprisonment for 10 years and  fine  of
Rs.5000/-, in default, simple imprisonment for further two months.

(11)  The learned counsel for the appellants  has  assiduously  argued  that
the prosecution having failed to prove that the  appellants  and  their  co-
accused had been the aggressors who  assaulted  the  deceased  and  that  he
succumbed to the injuries sustained thereby, their conviction and  sentence,
if allowed to stand, would signify travesty  of justice.  According  to  the
learned counsel,  the appellants and the  co-accused,  while  escorting  the
cattle of the deceased from the fields to  the  nearby  cattle  pond,   were
attacked by him and his cohorts, for which DW-1 Shyam Lal had to  open  fire
in self defence.  Without prejudice to this, it has been argued that in  any
view of the matter, there was no pre-meditation or pre-concert on  the  part
of the appellants and the co-accused to attack or assault the  deceased  and
having regard to the incident that had occurred in  the  fields  earlier  in
the day, the sentence awarded by the High  Court  is  unduly  harsh  and  is
liable  to  be  appropriately  scaled  down  in  the  attendant  facts   and
circumstances.

(12)  The learned counsel for the respondent, in refutation, has urged  that
it  having  been  proved  beyond  all  reasonable  doubt  by   unimpeachable
testimony of the eye witnesses, Gaya Prasad (PW-1), Sitaram (PW-2)  and  Ram
Sajeewan @ Dhunna (PW-4) that the  appellants  and  their  co-accused  Suraj
Bali and Chandra Bali had formed an  unlawful  assembly  and  had  with  the
intention of eliminating the deceased, had jointly launched a lethal  attack
by using, amongst others, a fire arm, the conviction recorded  by  the  High
Court, does not merit interference.  According to him, having regard to  the
seriousness of the charges proved, the appellants have been let off  lightly
with the substantive sentence of ten years' rigorous imprisonment.

(13)  We have lent our due consideration to the materials on record as  well
as the competing assertions.  Noticeably, the findings on the  incident  are
concluded  by  concurrent  deductions  of  the  two  courts   below.    This
notwithstanding, we have examined in particular, the  evidence  of  the  eye
witnesses Gaya Prasad (PW-1), Sitaram (PW-2) and Ram Sajeewan @ Dhunna  (PW-
4) as well as that of the Dr. S.C. Srivastava (PW-5), who had performed  the
post-mortem examination on the dead body.

(14)  A close scrutiny of the  evidence  of  the  eye  witnesses  leaves  no
manner of doubt that not only they  have  with  noteworthy  consistency  and
cohesion  authenticated  the  case  of  the  prosecution  in  all   material
particulars, they have identified as  well  the  appellants  and  their  co-
accused and also  have  provided  graphic  details  of  the  events  in  the
sequence in which the  same  unfolded  at  the  place  of  occurrence.   The
testimony of the Dr. S.C. Srivastava (PW-5) reveals fire arm wounds  on  the
head, chest and right upper arm of the deceased together with  the  multiple
abrasions and contusions on various parts of the body.   According  to  this
witness, death had occurred due to shock and haemorrhage as a result of  the
ante-mortem injuries.

(15)  Noticeably this  witness also  referred  to  lacerated/incised  wounds
and contusions sustained by the appellants Deo Munni, Ram Autar and the  co-
accused Suraj Bali which, according to  the  medical  expert,  were  however
simple in nature.

(16)  Though an attempt had been made at the trial by the defence  to  shift
the place of occurrence to fit in with their version, as offered  in  course
of the statements under Section 313 Cr.P.C., and  urged  in  course  of  the
arguments, the evidence of the Investigating Officer Brahm  Dev  Singh  (PW-
6), when considered along with the sketch map, Ex.  A-12,  the  same  stands
belied.  That the place of occurrence was, as cited by the  prosecution  is,
also corroborated by the blood stained earth collected therefrom  in  course
of the investigation. That the blood was  human blood   also  stands  proved
by the report of the chemical  analyst.   These  proved  facts,  in  a  way,
demolish the defence version totally in all respects.

(17)   Though,  at  the  trial  as  well  as  before  the  High  Court,  the
prosecution  case  was  sought  to  be  discredited  for  the   absence   of
explanation of the injuries suffered by some  of  the  accused  persons,  in
absence of  any  evidence  forthcoming  that  at  the  relevant  time,   the
deceased was armed or that the prosecution witnesses  present did  launch  a
counter attack, the courts below rightly  dismissed  this  plea.   The  High
Court, noticing the injuries, which the Dr. S.C. Srivastava  had  identified
to be simple in nature, did conclude, had been self inflicted  in  order  to
contrive a defence.  Bearing in mind the evidence available and the  overall
scenario, this finding, in our estimate, cannot be repudiated to  be  absurd
or illogical.

(18)   In  the  ultimate  analysis,  however,  one   cannot   overlook   the
progression of events that occurred since the incident of  trespass  of  the
cattle of the deceased in the fields of Suraj Bali  and  others  leading  to
abuse and unpleasantness between them earlier in the day.  The  second  bout
of bickerings precipitated in the  afternoon  on  the  same  day  while  the
deceased, appellants and the co-accused were  sitting  in  their  respective
compounds, abutting each other.  The witnesses of the  incident  though,  at
the preliminary stages, did advise  the  deceased  to  go  in  and  avoid  a
brewing confrontation, he  obdurately  refused  to  do  so  and  stoked  the
growing indignation so much so that eventually  he  was  shot  at  and  also
assaulted by the appellants and their companions.  The materials  on  record
do suggest that the deceased did also contribute to the  escalating  tension
and in the process the accused persons jointly unleashed attack  on  him  by
lathis and also shot him.  A sudden  spurt  of  irreversible    events  thus
got triggered thereby.

(19)  In the fact situation that developed in quick succession,  we  are  of
the comprehension that there was as such no pre-meditation or prior  concert
on the part of the accused persons to commit murder of Lalni.  The  incident
happened on the spur of the moment and in an uncontrollable, embittered  and
agitated state of enragement, thus depriving the accused  persons  of  their
power of self control.  Though during  the  assaults,  the  accused  persons
were understandably aware of the likely results thereof, it is difficult  to
perceive that they had any common object of eliminating the deceased.   This
is more so as the evidence  discloses  that  the  accused-appellants,  first
informant as well as the deceased  did descend from a  common  ancestor  and
that their grandfathers were  real  brothers.   The  evidence   demonstrates
that the accused- appellants do not have any  infamous  criminal  background
as well.  The incident had occurred in the year 1982 and as  on  date,  more
than three decades have passed.

(20)  On a consideration of the totality of the circumstances  attendant  on
the case, we are of the opinion that the conviction of the appellants  under
Section 304-Part 1 read with Sections 147,148,149 IPC, as  recorded  by  the
High Court, is justified.  However,  in  our  view,  having  regard  to  the
singular facts and circumstances, we are inclined  to  reduce  the  sentence
for the offence under Section 304-Part I/149 IPC  to  rigorous  imprisonment
for 7 years.  The other sentences are hereby affirmed.

(21)  The appeal is thus partly allowed with the above  modifications.   The
Trial Court would take the necessary follow up  steps  to  ensure  that  the
appellants serve out the sentence as awarded.




.............................................J.
                                      (DIPAK MISRA)




…...........................................J.
                                      (AMITAVA ROY)

NEW DELHI;
NOVEMBER 28, 2016.

Rajasthan High Court in R. S. Shekhawat’s case as noted above has permitted the contractor to approach the mining department for refund of the amount which was deducted from the bill in event they successfully prove that minerals used by them were minerals for which royalty was already paid. The aforesaid directions clearly protected the interest of the contractors and we are of the view that the appellant's interests are amply protected with the aforesaid directions issued by Rajasthan High Court. 42. We, however, deem it appropriate to give liberty to the appellant to approach the mining engineer, Respondent No. 2 by a written representation giving details of amount deducted from its bills or amount withheld along with the details of minerals used by contractors with details of proof to establish that minerals used were minerals for which royalty was paid as per 1986 rules. The Mining Engineer/Assistant Mining Engineer, the Respondent No. 2 may consider the representation and take an appropriate and reasoned decision expeditiously preferably within three months of submission of the representation and, in event it is found that appellant is entitled to refund of any amount, appropriate consequential action may be taken. 43. The Civil Appeal is disposed of with the above directions.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                         CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 11259 OF 2016
                  (Arising out of SLP(C)No. 12882 OF 2009)


MANBHAR DEVI AGARWAL              .......PETITIONER(S)

                            VERSUS

THE STATE OF RAJASTHAN & ORS  ......RESPONDENT(S)



                               J U D G M E N T

ASHOK BHUSHAN, J.

      Leave Granted.

2. This appeal has been filed against the judgment  of  the  High  Court  of
Judicature for Rajasthan, Jaipur Bench,  Jaipur  dated  17.12.2008  in  D.B.
Civil Special Appeal No. 231 of 2008 by which judgment,  the  Civil  Special
Appeal filed by the appellant against judgment and order of  Learned  Single
Judge dated 20.02.2007 was dismissed. Brief facts necessary to be noted  for
deciding the appeal are:-

      The appellant, a contractor, licensed by Nagar Nigam, Jaipur has  been
carrying out constructions of buildings,  roads,  drains,  footpaths,  etc..
The appellant for carrying out his  construction  work  uses  Bazri,  stone,
grit, moram, etc. which is claimed to be purchased from an  open  market  at
Jaipur.

3.     State  of  Rajasthan  has  issued  various  Government  Orders  dated
20.02.1994, 08.11.1996 and 20.11.1996 by which provision of deduction of  2%
towards  the  royalty  of  minerals  from  bills  of  contractors   of   the
construction department was  made.  The  State  of  Rajasthan  modified  the
scheme by issuing an order dated 13.11.2000 by which the earlier  Government
Orders providing for deductions of 2% as royalty of minerals from  the  bill
was done away. A new scheme was enforced vide order dated 13.11.2000.  Under
the new scheme, the copy of work order issued by Construction Department  to
the contractors containing details of the quantity of the minerals used  for
construction was  required  to  be  produced  before  the  Mining  Engineer/
Assistant Mining Engineer, who before the commencement of  the  mining  work
were required to issue short term permission letter for use  of  mineral  in
the construction.

4.    Another  Government  Order  was  issued  dated  03.10.2001  by  which,
direction nos. 2 & 4 as contained in  the  circular  dated  13.11.2000  were
modified.

5.    Further,  directions  were  issued  on  25.01.2002.   A  letter  dated
26.03.2002 was issued by the Government to  the  Chief  Executive  Engineer,
Commissioner, Jaipur Municipal Corporation referring  to  Government  Orders
dated  03.10.2001  and  13.11.2000  and  requesting  the  Jaipur   Municipal
Corporation to ensure compliance of the aforesaid Government Orders. It  was
further stated that until the No Dues certificate is  issued  in  favour  of
the contractors by the Department of Mining, payment against final  bill  of
the contractors be not made so that Department and State may not suffer  any
kind of revenue loss. The appellant  filed  the  writ  petition  being  Writ
Petition No. 3191 of 2002 praying for the following reliefs:-

“a. By way of writ, order or direction the order dated 26.03.2002  Annexure-
5 passed by the respondent No. 3 may kindly be quashed and set aside.

b.    by way of writ order or direction, the respondents may  be  restrained
not to collect royalty from the petitioners  on  purchase  of  Bazri,  grit,
stone, moram etc from the open market.

c.    by way of writ order or direction, the respondents may  be  restrained
to not to levy royalty from the running and final bills of  the  contractors
i.e. petitioners awarded prior to 26.03.2002.

d.     any  other  appropriate  writ,  order  or  direction  to  which   the
petitioner may be entitled to in  the  circumstances  of  the  case  may  be
issued in his favour.

e.     cost  of  the  writ  petition  may  be  awarded  in  favour  of   the
petitioner.”

6.    The Writ Petition filed by  the  appellant  was  disposed  of  by  the
learned Single Judge on 20.02.2007. Learned Single Judge  disposed  of  writ
petition in terms  of  an  earlier  judgment  in  SBCWP  No.  359  of  1998,
R.S.Shekhawat & Others Vs. State of U.P. decided on 28.02.2001.

7.    The appellant aggrieved by the decision of learned Single Judge  dated
20.02.2007 filed DBCSA No. 231 of 2008. The Division Bench held  that  there
is  no  illegality  in  order  passed  by  the  learned  Single   Judge   in
R.S.Shekhawat and others case  (Supra),  hence,  the  learned  Single  Judge
disposing of the writ petition of the appellant did  not  commit  an  error.
The appeal was accordingly dismissed. Aggrieved by the decision of the  D.B.
dated 17.12.2008, the appellant has filed the present appeal.

8.    Learned counsel for the appellant in support of  the  appeal  contends
that both learned Single Judge and Division Bench  of  High  Court  did  not
decide the issues raised by the appellant in  the  writ  petition  and  have
disposed of the writ petition  in  terms  of  earlier  judgment  of  learned
Single Judge, R.S.Shekhawat and others in  which  judgment  no  issues  were
decided. He submits that Judgment in R.S.Shekhawat Case indicates  that  the
Court did not enter into the correctness or otherwise  of  the  notification
dated  22.09.1994  &  03.07.1994  which  were  under  challenge.  The  Court
noticing the new scheme as issued  by  Government  Order  dated  13.11.2000,
noted the request of the  appellant  that  matter  may  be  directed  to  be
examined by the Department of Mines on which request the writ  petition  was
disposed of.

9.    It is submitted that the above judgment  did  not  decide  the  issues
raised by the appellant which were required to be considered. It is  further
submitted that the payment of royalty is to be made by lessees or  licensees
who have been granted right of excavation  of  minerals  i.e.  a  holder  of
mining lease or license. The appellant who has been purchasing the  minerals
from the open market cannot be saddled with  the  payment  of  royalty.  The
appellant is not carrying out any mining operation so  as  to  be  asked  to
make payment of royalty.

10.   Learned counsel for the State disputing  the  submissions  of  counsel
for the appellant submits that the various Government Orders  by  the  State
of Rajasthan have been issued to prevent the illegal mining i.e. use of  the
minerals  without  payment  of  the  royalty.   It  is  submitted  that  the
Government Orders provide for a mechanism to  check illegal  mining  and  in
event minerals used are minerals which are  royalty paid minerals, there  is
no liability and the  Government only requires verification  of  such  facts
i.e. whether minerals used by the contractors are royalty   paid   or   not.
      It is submitted that direction for withholding the  payment  till  the
verification of above facts are  only  for  the  purpose  of  ensuring  that
minerals used are not illegally mined minerals without payment  of  royalty.
He submit that no error was  committed  by  learned  Single  Judge  and  the
Division Bench in disposing of the writ petition giving liberty to the  writ
petitioner to approach the competent authorities in  the  mining  department
to prove that minerals used by them are all royalty paid.

11.   We have considered the submission of learned counsel for  the  parties
and have perused the records.

12.   The  Parliament  has  enacted  Mines  and  Minerals  (Development  and
Regulation) Act, 1957, for the  development  and  regulation  of  mines  and
minerals. The Union control  on  regulation  of  mines  and  development  of
minerals has been declared by virtue of Section 2 of 1957 Act. Section  3(e)
defines 'Minor Minerals' which is to the following effect:-

“3(e).      'Minor Minerals' means building stones, gravel,  ordinary  clay,
ordinary sand other than sand used for prescribed purposes,  and  any  other
mineral which the Central Government may, by notification  in  the  Official
Gazette, declare to be a minor mineral;”



13.   By Section 15 of the Act, the State Government has been  empowered  to
make rules on Minor minerals.

14.   Section 9(2) provides for payment of royalty by the holder  of  mining
lease. Section 9(2) is as follows:-

“9(2).       The  holder  of  a  mining  lease  granted  on  or  after   the
commencement of this Act shall  pay  royalty  in  respect  of  any  (mineral
removed or consumed by him or by his agent,  manager,  employee,  contractor
or sub-lessee) from  the  leased  area  at  the  rate  for  the  time  being
specified in the Second Schedule in respect of that mineral.”



15.   By Act 25 of 94, certain amendments have  been  incorporated  in  1957
Act. One of the sections inserted  by  Amendment  is  Section  23C.  Section
23C(1) is as follows:-

“23C. Power of  State  Government  to  make  rules  for  preventing  illegal
mining, transportation and storage of minerals:-

(1). The State Government may, by  notification  in  the  Official  Gazette,
make rules for preventing illegal  mining,  transportation  and  storage  of
minerals and for the purposes connected therewith.

(2)  ..............................”



16.   The State  of  Rajasthan  has  framed  Rajasthan  Mines  and  Minerals
Concession Rules, 1986, in exercise  of  power  under  Section  15.  Section
3(2)(XX) defines ‘Royalty’ which is to the following effect:-

“Royalty means the charge payable to the Government in respect  of  the  ore
or mineral excavated, removed or utilized from any  land  as  prescribed  in
Schedule-I.”



17.   Rule 18 provides for conditions which are  to  be  included  in  every
mining lease. According to Section 18(1)(b), the holder of  a  mining  lease
granted on or after  commencement  of  these  rules  shall  pay  royalty  in
respect of any mineral removed  by  him  from  and/or  consumed  within  the
leased area at the time being as specified in Schedule I in respect of  that
mineral.

18.   Rule 48  contains  various  provisions  with  regard  to  unauthorized
working. Various provisions regarding undertaking of  mining  operation  not
in accordance with the mining lease have been contained  in  Rule  48  which
also includes seizure of illegally mined minerals and  recovery  of  royalty
and tax chargeable as well as compounding charges.

19.   Above statutory provisions clearly indicates that excavation of  minor
minerals, as per mining lease or permit is subject  to  payment  of  royalty
and the rent as prescribed in the rules. The liability to  make  payment  of
royalty is on the person who excavates  the  minerals  under  the  lease  or
license.

20.   The provisions also indicate  that  in  event  of  illegal  mining  or
excavation of  minerals  without  payment  of  royalty,  the  rules  empower
exercise of various  powers  including  seizure  of  minerals,  recovery  of
royalty, taxes and compounding charges on such minerals.

21.   The first submission which has been  raised  by  learned  counsel  for
appellant is that learned Single Judge and Division Bench did  not  consider
the issues raised in the writ petition and disposed of the matter  in  terms
of earlier judgment of R.S.Shekhawat case  in  which  case  no  issues  were
decided. The judgment of R.S.Shekhawat is brought on record as  Annexure  P-
2.

22.   The above judgment  indicates  that  in  writ  petition,  notification
dated 22.09.1994 and 03.07.1995  by  which  2%  deductions  were  made  from
running bills submitted by petitioners to the Public  Works  Department  and
other State Departments towards royalty of  minerals  was  under  challenge.
The petitioners of that  case  were  engaged  in  business  of  constructing
roads, buildings and were using different varieties of  minerals  purchasing
it from the open market. However, when the writ petition came  for  hearing,
the court noticed the subsequent development  by  which  the  aforesaid  two
notifications were substituted by a new scheme dated 13.11.2000.

23.   The petitioner of that case, in view  of  the  subsequent  development
did not press for adjudication regarding the notification  dated  22.04.1994
and 03.07.1994 but prayed for the refund of the royalty deducted from  their
bills. The petitioner suggested that the  matter  may  be  examined  by  the
Department of Mines itself. It is useful to note  following  observation  in
the judgment:-

“...as already stated the counsel for the petitioner as also other  counsels
appearing in all these writ petitions, no longer consider  it  necessary  to
insist for adjudication of the question as to whether the two  notifications
dated 22.09.1994 and 03.07.1994 are legal or not in view of the fact that  a
new  scheme  on  13th  November  2000  referred  to  hereinbefore  has  been
implemented but insofar as deductions  already  made  by  the  Public  Works
Department and other Departments on  behalf  of  the  Mining  Department  is
concerned, the same requires adjudication by the  Department  of  Mining  to
ascertain whether the petitioners  at  any  point  of  time  prior  to  13th
November 2000 had used minerals in  their  construction  operations  or  not
which were not royalty paid  and  for  this  purpose  the  counsel  for  the
petitioners have themselves suggested that the matter  be  examined  by  the
Department of Mines in order to  come  to  a  just  conclusion  whether  any
wrongful deduction had been made in the running bills by  the  Public  Works
Department and other Departments or not in regard to the amount  of  royalty
for the minerals used...”



24.   The aforesaid writ petition was thus disposed  of  giving  liberty  to
the petitioner to  approach  the  Department  of  Mines  with  the  relevant
records for assessment and explaining the position  for  whether  the  claim
for refund or adjustment is sustainable or not.

25.   When the writ petition no. 3191 of 2002 filed by  the  appellant  came
for consideration on 20.02.2007, the learned Single Judge after  considering
the judgment in R.S.Shekhawat case,  disposed  of  the  writ  petition  with
following directions:-

“...Having  perused  the  aforesaid  judgment  and  considering  the   rival
arguments of the learned counsel for the parties,  I  am  not  persuaded  to
take any other view of the matter than the  one  taken  by  the  Co-ordinate
Bench in the aforesaid judgment.

      The  writ  petition  is  accordingly  disposed  of  in  terms  of  the
aforesaid directions. The observations made  and  directions  given  in  the
aforesaid judgment shall also apply to the present case.”



26.   The Division Bench also affirmed the aforesaid judgment.

27.   From the prayers as made in  the  writ  petition,  it  is  clear  that
principle prayer made by the writ petitioners was challenge to  D.O.  letter
dated 26.03.2002  issued  by  the  Office  of  Mining  Engineer,  Mines  and
Geology, addressed to Commissioner, Jaipur Municipal Corporation, Jaipur.

28.   The writ petition in R.S.Shekhawat case was decided on  28.02.2001  by
which date the letter dated 26.03.2002 was not  even  in  existence.  Letter
dated 26.03.2002 being subsequent in point of  time  from  the  judgment  of
R.S.Shekhawat case, it was necessary to look into the content of the  letter
and to take decision thereafter. We thus find substance  in  the  submission
for the learned counsel for the appellant that letter dated  26.03.2002  was
also necessary to be looked into before deciding the writ  petition  of  the
appellant and without referring to the letter  dated  26.03.2002,  the  writ
petition of the appellant ought not to have been disposed of.

29.   We thus, in view of the above, proceed  to  examine  the  contents  of
D.O. letter dated 26.03.2002 and   submissions  made  by  the  appellant  in
support of the appeal.

30.   The submission which has been pressed by the counsel of the  appellant
is that payment of royalty is contemplated from holder of a mining lease  or
permit. As noted above, the statutory  scheme  clearly  indicates  that  the
royalty is required to be paid by mining lease holder or permit  holder  for
excavation of a minor mineral and no mineral is to be removed  or  excavated
without payment of the royalty.  For  mining  of  all  minerals  payment  of
royalty is necessary.

31.    It  is  however  also  relevant  to  note  that  where   mineral   is
excavated/transported/removed  without  payment  of   royalty,   there   are
specific provisions for seizure of such minerals, recovery of  royalty,  tax
and compounding charges. The statute thus takes care of payment  of  royalty
for even those minerals which have been illegally mined  or  excavated.  The
lease holders or permit holders who excavate the minerals  under  the  lease
or license are obliged to make payment of royalty  and  in  event  any  such
mineral is found to be removed by lessee or their agents without payment  of
royalty, statute contains ample provisions to  ensure  recovery  of  royalty
and fine etc.

32.   As noted above, the  earlier  Government  Orders  dated  22.09.1994  &
03.07.1995 provided  for  2%  deductions  from  the  running  bills  of  the
contractors of public works department and other state  departments  towards
the royalty of minerals which were used by contractors in building of  roads
etc. The Scheme as provided  under  the  aforesaid  Government  Orders  were
subsequently withdrawn and a new scheme was  enforced  by  Government  Order
dated 13.11.2000 and 03.01.2001. By Government  Order  03.01.2001  modifying
earlier direction dated 13.11.2000, following was directed:-

“After  carrying  out  amendment  in  the  even  numbered   Circular   dated
13.11.2000 related to guidance to recover the royalty against  the  minerals
used in various works by the Contractors of Government Works Department  and
substituting the Paras 2 and 4 of the above Circular,  following  directions
are issued:-

"(2) Before commencement of mining work by the  Contractor  of  Construction
Department,  Short  Term  Permission  Letter  for  mineral   used   in   the
construction from the Mining Department shall be obtained and shall have  to
deposit the fee fixed for it and cost of Khanna Book  with  the  Department,
but amount of royalty payable on the quantity of the  mineral  mentioned  in
the short term License will be  deducted  from  the  running  bills  of  the
contractor by the concerned Construction Department  on  the  basis  of  the
quantity of the mineral used in the construction.

(4) On completion of the construction work, complete details of the  mineral
such as quantity of the mineral, source of receiving mineral and details  of
the amount deducted from the bill  etc.  utilized  by  the  Contractor  duly
verified by the Executive Engineer of the concerned Construction  Department
shall be submitted to Mining Engineer/Assistant Mining  Engineer  within  15
days and further a Certificate  of  Construction  Department  will  also  be
produced in which quantity of the mineral used in the construction has  been
certified.”



33.   A further Government Order was issued on  25.01.2002  which  has  been
brought on record as Annexure P-4 by which  certain  other  directions  were
issued for ensuring that the payment of royalty regarding all minerals  used
is made and the mining engineer was required to keep  all  details  and  the
contractors were also to  obtain  short  term  permission  for  use  of  the
minerals as per work order.

34.   A letter dated 26.03.2002 was issued by the  Mining  Engineer  to  the
Commissioner Municipal Corporation,  Jaipur,  whereunder  the  attention  of
Commissioner,  Jaipur  Municipal  Corporation,  Jaipur  was  drawn   towards
circular dated  03.10.2001  of  the  State  Government  and  circular  dated
13.11.2000, and the commissioner was informed that although the  information
of the circular has been sent earlier to the Jaipur  Municipal  Corporation,
the amount of royalty  has  not  been  received.  The  Commissioner,  Jaipur
Municipal Corporation was requested to arrange to send royalty on the  basis
of the quantity of the minerals used in the  contract  of  the  construction
work given by to the contractor by subordinate offices of  Jaipur  Municipal
Corporation before end of the financial year.

35.   The letter dated 26.03.2000  impressed  upon  Commissioner  of  Jaipur
Municipal Corporation  to  ensure  compliance  of  Government  Orders  dated
13.11.2000 and 03.10.2001 which has been noted  earlier.  The  appellant  in
writ petition has only challenged the letter dated 26.03.2002  but  has  not
challenged the Government Circulars issued earlier which was  sought  to  be
complied by the said letter.

36.   Learned counsel for the State is right in his submissions  that  since
appellant did not  challenge  the  aforesaid  two  circulars  of  the  State
Government where scheme for realization of the royalty from the  contractors
for use of the minerals was enforced, the state had no occasion to give  all
relevant facts pertaining to two earlier  circulars  by  which  royalty  was
sought to be recovered. In the present  writ  petition  only  prayer  is  to
quash the letter dated 26.03.2002, which  is  only  a  letter  to  Municipal
Commissioner Jaipur to ensure compliance of  Circulars  dated  13.11.2000  &
03.01.2001. There being no challenge to Circular's 13.11.2000  &  03.01.2001
in the writ petition and the State had no opportunity to  defend  its  above
policy it is not appropriate for this Court to embark upon the  adjudication
of above Government Scheme. The letter dated 26.03.2002 being only a  letter
to ensure compliance of Circulars dated 13.01.2000 &  03.01.2001,  no  fault
can be found in the said letter.

37.   A Counter Affidavit has already been filed by the Respondent No.  1  &
2, the State of Rajasthan and Mining Engineer in the present appeal. In  the
counter affidavit, State has come up with the case that the  liabilities  to
pay royalty rest with contractors/lease holders to  whom  mining  lease  are
bestowed. It is  further  pleaded  that  in  case  the  minerals  have  been
procured from the legal source on which royalty have been paid, there is  no
royalty payable subsequently. In sub-paragraph IV of the counter  affidavit,
following was stated:-

“IV.   That the contents of para IV of the questions of law are wrong,  ill-
advised and are hence denied. It is submitted  that  the  liability  to  pay
royalty rests with the contractors/lease holders to whom the  mining  leases
are bestowed but in order to prevent losses on account  of  rampant  illegal
mining  and  subsequent  usage  of  such   illegally   mined   minerals   in
construction work, the department of mines of the State of Rajasthan  issued
circulars from time to  time  calling  upon  vendors/contractors  registered
with Public Works Department of the State who carry out  construction  works
to place before it  the  records  of  the  minerals  having  been  purchased
legitimately and that such minerals have  not  been  procured  from  illegal
mining to determine whether royalties on such minerals have  been  paid.  In
case, the minerals have been procured  by  vendors/contractor  from  illegal
mining, the royalties due to the State can be recovered. The said  circulars
categorically state that, in case minerals have  been  procured  from  legal
sources on which royalties have been paid, there  is  no  royalties  payable
subsequently. However, in case  such  minerals  are  procured  from  illegal
mining,   then   the   royalties   that   have   been   usurped    by    the
vendors/contractors must be paid to the State.  There  is  no  infirmity  or
illegality in such a circular which is intended to legitimately collect  the
royalties due to the State and which have not been paid.”



38.   It is further stated in the counter affidavit that in event  appellant
has procured the minerals  from  open  market,  the  appellant  should  have
presented the documents to prove that such  minerals  used  in  construction
work were purchased legitimately and then no royalty shall be  paid  to  the
State by the appellant on such mineral in such a case.

39.   It is submitted that in spite of department  communication  18.02.2008
and 16.02.2009  calling  upon  the  appellant  to  produce  the  records  of
purchasing the minerals from  open  market,  the  appellant  has  failed  to
produce any such record of such purchase. In paragraph VIII,  following  has
been stated:-

“VIII. That the contents of  corresponding  para  no.  VIII  are  wrong  and
denied. It is submitted that as per the circular issued  by  the  department
under Rule 63 of Rajasthan Minor Minerals  Concession  Rules,  1986,  it  is
mandatory for all contractors enlisted /registered  with  the  Public  Works
Department cited above to obtain 'Short Terms Permit' for  the  minerals  to
be used  in  construction  works.  In  case  the  petitioner  purchased  the
minerals from the open market, then the petitioner should have produced  the
relevant documents to prove that such minerals used  in  construction  works
was purchased legitimately. However, in spite  of  the  communications  from
the  department  dated  18.02.2008  and  16.02.2009  in  this  regard,   the
petitioner has  failed  to  produce  any  documents  that  proves  that  the
minerals have been purchased legitimately from the open market. It is  clear
that the petitioner does not possess any  documents  that  prove  that  such
minerals have been procured through legitimate means and hence it  is  clear
form  the  conduct  of  the  petitioner  that  such  minerals  are  procured
illegally and are illegally mined.”



40.   The circulars issued by the State Government  including  the  circular
dated 13.11.2000 as well as circular dated 03.10.2001 has to be  interpreted
to mean that circular requires payment of royalty with regard to only  those
minerals which have been used by the contractor for  which  no  royalty  was
paid. The circular cannot be interpreted to mean  as  requiring  payment  of
royalty for minerals used for which once royalty has already been paid.  The
state has come up with  the  above  mentioned  Government  Order  only  with
object to ensure that contractors do not use minerals which are not  royalty
paid.

41.   Rajasthan High Court in R. S. Shekhawat’s  case  as  noted  above  has
permitted the contractor to approach the mining  department  for  refund  of
the amount which was deducted from  the  bill  in  event  they  successfully
prove that minerals used  by  them  were  minerals  for  which  royalty  was
already paid. The aforesaid directions clearly  protected  the  interest  of
the contractors and we are of the view that the  appellant's  interests  are
amply protected with the  aforesaid  directions  issued  by  Rajasthan  High
Court.

42.   We, however, deem it appropriate to give liberty to the  appellant  to
approach the mining engineer, Respondent No. 2 by a  written  representation
giving details of amount deducted from its bills or  amount  withheld  along
with the details of minerals used by contractors with details  of  proof  to
establish that minerals used were minerals for which  royalty  was  paid  as
per  1986  rules.   The  Mining  Engineer/Assistant  Mining  Engineer,   the
Respondent No. 2 may consider the representation  and  take  an  appropriate
and reasoned  decision  expeditiously  preferably  within  three  months  of
submission of the representation and, in event it is  found  that  appellant
is entitled to refund of any amount, appropriate  consequential  action  may
be taken.

43.   The Civil Appeal is disposed of with the above directions.

                             .............................................J.
                                (PINAKI CHANDRA GHOSE)



                                ..........................................J.
                                                      (ASHOK BHUSHAN)
NEW DELHI;
NOVEMBER 25,  2016.

where acquittal has been made, while entertaining an appeal over an order of acquittal if two views are possible on making proper appreciation of available evidence the view going in favour of accused have to given importance. It is well settled that in case where an order of acquittal has been made on improper and erroneous appreciation of evidence, it is always open to the court of appeal to make proper and reasonable appreciation evidence and differ from the order of acquittal and in such event, it shall never hesitate in reversing the same. Ultimately, the High Court concluded: “...From scanning of the entire prosecution evidence and having regard to submission of the respective parties, we are constrained to hold that the learned trial Court was totally wrong both in law and, in fact, in making its observation that the FIR was antedated and anti timed and a manipulated one. The trial Court also erred in law by discarding the FIR for delay in dispatching the same in the Court of the Magistrate.” 37. We are of the opinion that the findings and conclusion recorded by the High Court are based on the correct appreciation of evidence and do not suffer from any error.

                                                                  REPORTABLE
                           IN THE SUPREME COURT OF INDIA
                        CRIMIMINAL APPELLATE JURISDICTION
                         CRIMINAL APPEAL NO. 298 OF 2006

ANJAN DASGUPTA                         .......APPELLANT
                            VERSUS
THE STATE OF WEST BENGAL & ORS.   ......RESPONDENT


                            JUDGMENT
ASHOK BHUSHAN, J.

1.    This appeal has been filed against the judgment  dated  16.02.2006  of
Calcutta  High Court, by which judgment, the High Court reversed  the  order
of  acquittal  granted  by   Additional  Sessions  Judge.   The  High  Court
convicted  the appellants Anjan  Dasgupta  and  one   Biswanath  Paul  under
Section 302/34 of IPC by awarding life  sentence and a fine of Rs. 2000.00.

2.    The prosecution  case  in  brief  is that, at  4.50 PM of  16th  June,
2000 Debol Kumar Ghosh, the deceased was sitting inside the Party Office  of
    CPI(M) at R.B.C. Road, Naihati,  North  24-Paraganas  at  which  time  a
maruti gypsy car stopped, from which the appellants got down.  At  the  same
time, four persons on two bicycles came from  the  direction  of  the  Mitra
Bagan Road and  stopped   right  in  front  of  CPI(M)  Party   Office.  The
appellant by hand indicated Debol  Kumar  Ghosh  to  four  persons  who  had
arrived there on two bicycles, and one of them fired from pipe gun on  Debol
Kumar Ghosh. Leaving two cycles, all four persons got in  the  Maruti  Gypsi
which speed up towards Gauripur.  Sandip  Ghosh,  the  son  of  Debol  Kumar
Ghosh who was sitting inside his medicine shop, namely, “Ma Medical  Stores”
at R.B.C. Road, Naihati, North 24-Parganas situated at 5 cubits from  CPI(M)
Office saw the above incident and rushed to CPI(M) Party  Office  and  found
his father Debol Kumar Ghosh had sustained bullet injuries on his chest  and
was lying on the floor.  The elder brother of  Sandip  Ghosh,  upon  hearing
the sound, also came to the Party Office.  The  victim,  Debol  Kumar  Ghosh
was thereafter taken to Green View Nursing Home where he was  declared  dead
by the doctors at 5.00 PM.
3.    The information of murder of Debol Kumar Ghosh  was  received  by  the
Police Officials of the Naihati Police Station, who  immediately  rushed  to
the scene of occurrence. After receiving an R.T.  message  at  17.15  hours,
the Sub Inspector Tapan Kumar also arrived at the scene  at  17.40  hrs  and
remained at the scene till 21.05 hours.  Sandip Ghosh  went  to  the  police
station at about 7.30-8.00 PM alongwith one Arun Dey.  Arun  Dey  wrote  the
complaint  at  dictation  of  Sandip  Ghosh  and  a  written  complaint  was
submitted to the police station.  The FIR No.  99  of  2000  was  registered
under Section 302/34 of the IPC and Section 25/27 Arms Act,  naming  accused
Anjan Dasgupta, Biswanath Paul, Sintu alias Saroj Roy and Bhola Kundu.
4.    Tapan Kumar, Sub Inspector received the FIR while he was still at  the
scene of occurrence.  Sub Inspector  Manick  Chakraborty,  on  dictation  of
Tapan Kumar with a Constable prepared the inquest report of  the  dead  body
at Green View Nursing Home at 22.35 hours.  After  the  inquest  report  was
prepared late in the evening, the dead body was sent for  postmortem.  After
completion of the investigation, accused Anjan Dasgupta, Bhola Kundu,  Sintu
alias Saroj Roy and Biswanath Paul were charged for the  commission  of  the
offence under Section 302 read with Section 34 of the IPC and  Basudev  Paul
was charged for offence under Section 212 of the IPC.
5.    Prosecution examined thirty one witnesses  in  support  of  its  case;
prosecution  also  produced  documentary   evidences,   namely,   statements
recorded  under  Section  164  Cr.  P.C.  and  certain   other   documentary
evidences.   Accused  persons  adduced  no  oral  evidences.   Accused  were
examined under Section 313 Cr. P.C.
6.    The learned Additional  Sessions  Judge  acquitted  accused  Biswanath
Paul for offence under Section 212 and all  other  accused  from  charge  of
Section 302/34 .  State filed an appeal against the  acquittal  order.   The
complainant also filed a  Revisional  Application  CRR  No.  2263  of  2002,
challenging the order of the acquittal.  The High Court  vide  its  judgment
dated 16.02.2006 set aside the order of the acquittal as  regards  to  Anjan
Dasgupta and Biswanath Paul.  It,  however,  confirmed  the  acquittal  with
regard to the Sintu alias Saroj Roy and Bhola Kundu.  Acquittal  of  Basudev
Paul was also affirmed.  Appellant Anjan Dasgupta was sentenced  to  undergo
life imprisonment with a fine of Rs. 2000.00/-.  Anjan  Dasgupta  has  filed
this appeal challenging his conviction and sentence.
7.    We have heard Shri Kapil Sibal learned senior  counsel  appearing  for
the appellant, Shri Rupesh Kumar learned senior counsel  appearing  for  the
Respondent No. 2 and Parijat Sinha learned counsel for  the  State  of  West
Bengal.
8.    Shri Kapil Sibal learned senior counsel for the appellant, in  support
of the appeal contends that learned Sessions Judge after considering  entire
evidence on record had rightly come to the conclusion that evidence  led  by
prosecution  contradicts  the  prosecution  story,  as  to  the  genesis  of
occurrence, hence  did not commit any error in acquitting the appellant.  It
is contended that FIR was ante-dated and ante-timed as rightly held  by  the
trial court.  He submitted that from the evidence  of  PW  1  who  gave  the
written complaint for lodging an FIR, it  is  clear  that  he  went  to  the
police station after 7.30 PM, hence the  FIR  could  not  have  been  lodged
before 7.30-8.00 PM and mention of time of receiving the information in  the
FIR as 17.35 hour clearly proves that it was ante-timed.
9.    Shri Kapil Sibal further submits that FIR, in fact  was  lodged  after
inquest report and inquest report according to  the  evidence  was  prepared
after the 22.35 hours.  It is submitted that ante-timing and ante-dating  of
the FIR was with object to falsely implicate the accused since by that  time
prosecution story was still  in  vacuum.  Shri  Sibal  referred  to  various
contradictions in the statement of witnesses as noticed by trial court.   He
submits  that  High  Court  committed  error  in  reversing  the  order   of
acquittal.  It is well  settled  that  if  on  an  evidence  two  views  are
possible and the trial court exercises its discretion  in  having  acquitted
the accused, High Court ought not to interfere  with  the  acquittal  order.
The FIR was dispatched from the  police  station  with  great  delay,  which
could be placed before the Magistrate only on 22nd July,  2000,  which  also
clearly proves that FIR was not registered at the time and the date when  it
is claimed.  Mention of U.D. Case No. 43/2000, in FIR causes  suspicion  and
serious doubts with regard to the authenticity of  the  FIR  and  subsequent
inquest report. Prosecution failed to prove any motive for  the  murder  and
in absence of any motive, appellant could not have been convicted.
10.   Learned counsel appearing for the State as well  as  complainant  have
refuted submissions of learned counsel for the appellant. High Court,  while
reversing the acquittal order has  properly  reappraised  the  evidence  and
finding the guilt of the accused, conviction has been recorded.   There  are
more than one eyewitnesses who have  proved  by  their  evidence,  place  of
occurrence, death by  bullet  injury,  presence  and  participation  of  the
appellant in the crime, which has been  established  beyond  any  reasonable
doubt.  There was no delay or discrepancy in the FIR. FIR, being  a  genuine
document, trial court committed error in holding that FIR  is  ante-   timed
and anti-dated. The High  Court  after  correctly  appreciating  the  entire
evidence on record has rightly reversed the acquittal  order.   With  regard
to the delay  in sending the copy of the FIR to the Magistrate, nothing  was
asked in the cross-examination of the I.O. Further, although  much  argument
was raised before the trial court regarding ante-timing and  ante-dating  of
FIR but no questions were put before the I.O.  and  the  sub  inspector  who
recorded the FIR, when they appeared before the court.
11.   First, we proceed to consider the submissions of the  learned  counsel
for the appellant regarding ante-timing and ante-dating  of  the  FIR.   The
trial court had formulated point No. 3 as 'was the real FIR  suppressed  and
the FIR proved as ante-dated'. Trial court had observed that PW  1  went  to
the police station at about 7.30/8.00 PM but in the formal FIR  Exh.  9,  it
is recorded that information of the commission of offence  was  received  at
17.35 hours on 16th June, 2000.   This  entry  in  Exh.  9  contradicts  the
aforesaid evidence of the  PW  1  as  regard  to  the  time  of  lodging  of
complaint to the police station. Argument was raised before the trial  court
that FIR was, not only ante-timed but also ante-dated, as such  no  reliance
should be placed on the Exh. 3.  Magistrate had  perused  both  the  written
complaint and the FIR, which bore the endorsement  “seen”  dated  22nd  July
2000. Trial court held that FIR was dispatched from the  police  station  on
22nd June, 2000 and was received at  the  Magistrate  Court  on  23rd  June,
2000. The trial court had recorded its  conclusion  in  following  words  at
Page No. 107:
      “As the FIR was antetimed and there was abnormal unexplained delay  in
dispatching the FIR to the office of  the  learned  Magistrate  as  well  as
putting up the same before the learned Magistrate, adverse inference  should
be drawn against the prosecution.  The FIR  cannot  be  attached  with  much
value.”

Following observations were made by trial court at Page No. 106:
"Even if the FIR was lodged after 7-30/8 p.m. as  stated  by  the  P.W.1  it
would not lose it's value in it's entirety because  it  is  not  established
that the FIR proved at the trial  was  a  subsequent  one  or  that  it  was
written on any date after 16.6.2000”

12.   Now, coming to the evidence on record, there is evidence of PW 1  that
he  went  to  the  police  station  between  7.30/8.00  PM  and  the   First
Information Report was written by Arun Dey on his dictation. Both the  above
facts have been proved by statement of PW 1 Sandip Ghosh and PW 5 Arun  Dey;
both have signed the written complaint. Shri Sunil Giri  ASI  PW  29  proved
the recording of the FIR on the basis of written complaint given  by  Sandip
Ghosh.  No suggestion was put to  PW  29  regarding  the  date  or  time  of
recording of the FIR.
13.   Shri Sunil Giri  has  proved  the  FIR,  he  further  proved  that  he
received the FIR on 16th June, 2000, he proved  his  signature  on  the  FIR
also.  He denied the suggestion that FIR was written on subsequent  to  16th
June, 2000. Thus there is no case of ante-dating the  FIR,  even  the  trial
court did not accept the submission that FIR was ante-dated.
14.   Now we come to the main submissions, that is, ante-timing of  the  FIR
and delayed dispatch of the  FIR  to  the  court  of  the  Magistrate.   The
sequence of the events, as it emerges from the evidence brought  before  the
court, i.e. the  evidence of PW 1 and PW 30, there is no  doubt  that  PW  1
went to the police station at about 7.30 PM. The  statement  of  PW  30,  in
this context, is very relevant.  PW 30 in his statement has stated  that  on
16th June, 2000, when he was posted at Police Station, Naihati,  he  was  at
village Shibdaspur, in connection with another case, when at 17.15 hours  he
received an RT Message that at Mitra Bagan Crossing one  Debol  Kumar  Ghosh
had been shot dead. He  arrived  at  the  spot  at  about  17.40  hours  and
remained there till 21.05 hours. He further  stated  that  he  prepared  the
sketch map on the  spot  and  seized  the  certain  articles  including  two
bicycles from the entrance of the party office room. The  statement  in  his
examination-in-chief following was stated by I.O.:
      “While I was at village Shibdaspur under P. S. Naihaati in  connection
with another case  at  17.15hrs.  I  received  an  R.  T.  message  that  at
Mitrabagan crossing one Debal Kr. Ghosh had been shot dead. I then  directly
rushed to Mitrabagan More. I arrived there at 17-40 hrs.  There was law  and
order problem over the murder.  There was blockage of road. I  received  the
FIR from the Police Station at the said Mitrabagan  crossing.   I  had  been
engaged with law and order maintaing job upto  21.05  hrs.  I  went  to  the
C.P.I.M party office at  Mitrabagan  crossing  and  prepared  a  sketch  map
thereof with index.”

15.   In the cross-examination, he has stated that ASI Sunil Giri  had  send
him the R.T. message.  Sunil Giri ASI thus had received the  information  of
the murder  of  Debol  Kumar  Ghosh  before  17.15  hours,  arrival  of  Sub
Inspector Tapan Kumar Mishra I.O. on the scene at the  time  as  claimed  is
proved; I.O. also went to the Green View Nursing Home, accompanied  by  S.I.
Manick Chakraborty where dead body of the deceased, Debol  Kumar  Ghosh  was
laid. Under the dictation of the I.O., the inquest report  was  prepared  by
Manick Chakraborty Sub Inspector of  Police,  which  has  started  on  22.35
hours. The inquest report which  has  been  proved  by  witnesses  and  I.O.
clearly records the following:
"Investigation report over the dead body of Deceased Debol Kumar Ghosh  (48)
years son of late Kiran Chandra Ghosh of  212/1  R.B.C.  Road  P.S.  Naihati
District North 24-Paraganas (Illegible)in C/W Naihati  P.S.  U.D.  Case  No.
43/2000 dt. 16.62000 and  Naihati  P.S.  Case  No.  99  of  16.6.2000  under
Section 302/34 I.P.C. & 25/27 Arms Act.”

16.   The inquest report thus mentioned both unnatural death case (U.D.  No.
43/2000) dated 16th June, 2000 and P.S. Case  No.  99  of  16th  June,  2000
under Section 302/34 of IPC and 25/27 Arms Act.  From the above,  there  can
be no doubt that FIR was registered before the inquest report of  dead  body
started.  The evidence indicates that information of death was  received  by
the police station before 17.15 hours and police officials  arrived  at  the
spot immediately and the I.O. arrived at the spot  at   17.45  PM,  by  that
time other police  officials  had  already  reached.  The  receipt  and  the
recording of First Information Report  is  not  a  condition  precedent  for
setting in motion of a criminal investigation.  When  the  information  that
Debol  Kumar  Ghosh  is  shot  dead,  police  was  duty   bound   to   start
investigation.  This Court in APREN  JOSEPH  ALIAS  CURRENT  KUNJUKUNJU  AND
OTHERS VERSUS THE STATE OF KERALA 1973  (3)  SCC  114  stated  following  in
paragraph 11:
      “As observed by the Privy Council in K. E. v. Khwaja, the receipt  and
recording of information report by the police is not a  condition  precedent
to the setting in motion of a criminal investigation.”

17.   Much emphasis has been laid  down  by  the  learned  counsel  for  the
appellant on the fact  that, FIR notes in Column C, 'time 17.35'.  The  time
17.35 hours, we have already noted that Sunil Giri Sub Inspector  of  Police
has recorded in the First Information Report. He had  already  received  the
information before 17.15 hours since he had sent the  R.T.  message  to  the
I.O. Information of cognizable offence having  been  received  by  the  ASI,
with regard to the mention of time at 17.35 in the FIR, which  was  recorded
after 17.30 PM could have been explained if any questions were  put  to  ASI
Sunil Giri. From the cross-examination  of  ASI  Sunil  Giri,  it  does  not
appear that any question was asked regarding the  recording  time  17.35  in
the FIR.  The possibility cannot be ruled out  that  while  registering  the
FIR on the basis of written complaint, the ASI recorded  the  time  when  he
received the information in the police station of the death of  Debol  Kumar
Ghosh. In any view of matter, the above in no manner  diminishes  the  value
or credibility of the FIR.
18.   The information of murder was  received  before  17.35  hours  at  the
police station which is fully proved by arrival of the police officers  much
before 17.40 hours as proved by I.O. Hence mention of the time at 17.35  can
be treated as the time of receipt of the information of the offence  in  the
police station and there is no such inconsistencies in  the  FIR  so  as  to
come to the conclusion that FIR was ante-timed.
19.   FIR as well as the inquest report both  mentioned  the  accused  Anjan
Dasgupta.  The inquest report has not been questioned on  any  account.  The
offence, having been committed at around 4-5 PM, registration of the FIR  at
the police station between 7.30 to 8.00 PM does  not  cause  any  reason  to
draw any  adverse  inference,  more  so,  when  after  the  occurrence,  the
deceased was taken to the nearby nursing home where  he  was  declared  dead
and  body  remained  there  till  the  inquest   was   over.   The   another
circumstance, which have been heavily relied by trial court  and  reiterated
before us by learned counsel for the appellant is dispatch  of  the  FIR  to
the Magistrate with delay.  This Court in Pala  Singh  v.  State  of  Punjab
1972 (2) SCC 640 has held that delay in forwarding the FIR to court  is  not
fatal in a case in which investigation has commenced promptly on its  basis.

20.   The I.O. after receipt of  the  information  of  an  offence  by  R.T.
message had arrived at the scene on 17.40 hours, which  clearly  proves  the
prompt commencement of the investigation. FIR was dispatched on  22nd  June,
2000 which has also been accepted by trial court.  When  no  questions  were
put to I.O. in his cross-examination regarding the  delay  in  dispatch,  at
the time of hearing, the accused cannot make capital of the  said  delay  in
forwarding the FIR. This Court in Rabindra Mahto and  Another  v.  State  of
Jharkhand 2006 (10) SCC 432 has held that in every case from the mere  delay
in sending the FIR to the Magistrate, the Court would not conclude that  the
FIR  has  been  recorded  much  later  in  time  than  shown.  It  is   only
extraordinary and unexplained delay, which may raise  doubts  regarding  the
authenticity of the FIR.
21.   The present is the case, where recording of  the  FIR  on  16th  June,
2000 itself has been proved, accepted by the trial  court  also,  thus  mere
dispatch of the FIR on 22nd June,  2000  from  the  police  station  to  the
Magistrates' Court has  no  bearing  on  the  basis  of  which  any  adverse
presumption can be drawn.  From the above discussion, we are  of  the  clear
view that the FIR was genuine FIR and trial  court  committed  an  error  in
drawing adverse inference against the prosecution  and  refusing  to  attach
value to the FIR.
22.   The conclusion  of  the  learned  Sessions  Judge  that  the  FIR  was
manipulated is thus found to be  erroneous.  FIR  has  been  proved  by  the
evidence as noted above. Thus, one of the  basis  of  the  decision  of  the
Sessions Judge for discarding the prosecution case is knocked out.
23.   Now, we came to the consideration of oral evidence by Sessions  Judge.
Both the deceased and accused belong to the same  locality.  The  occurrence
was witnessed by several persons, including the eye-witnesses  who  appeared
before the court and proved the prosecution case, PW.1  Sandip  Ghosh,  PW.2
Vijay Das, PW.3 Kamal Nath, PW.4 Manabendra Nag, PW.6 Prasanta Ghosh,  PW.10
Shashanka Nath and PW 1 Shankar Ghosh.
24.   PW.1 Sandip Ghosh, the son of the deceased was  in  his  medical  shop
“Maa Medical Stores” which is at the distance of about 5 cubits from  CPI(M)
office. In his eye-witness account, he stated that at 04:50 PM when  he  was
at his shop, he found a motor vehicle, a Maruti Gypsy to come from  side  of
Naihati Station  and  got  itself  parked  on  R.B.C.  Road  after  crossing
Mitrapara and  R.B.C.  Road  Crossing.  He  saw  Biswanath  Paul  and  Anjan
Dasgupta got down from the said motor vehicle and at that very moment,  four
boys about age 22/23 years came in front  of  aforesaid  party  office  from
side of Mitra Bagan by two  Bicycle.  He  further  saw  Anjan  Dasgupta  and
Biswanath Paul  to point out his father sitting  inside  the  party  office.
One of the said boys took out a  pipe  gun  and  shoot  Debol  Ghosh.  Anjan
Dasgupta further observed that “Hay Gechi Tara Tari Chale Aiy”.  Thereafter,
the said vehicle left. In the  cross-examination,  the  witness  stood  firm
with his eye- witness accound and could not be shaken.
25.   PW 2 Vijay Das on the fateful day was standing  at  the  gate  of  the
party office inside of which Debol Ghosh  was  sitting.  Debol  Ghosh  after
taking the tea asked him to bring the beetle leave. He went  to  the  beetle
shop in front  of the party's office on the other side  of  road,  where  he
saw Anjan Dasgupta and Biswanath Paul to get down from Maruti Gypsy  at  the
crossing of R.B.C. Road. At that time  four persons  by  two  bicycles  came
from the Mitrapara side. One  of  the  said  four  boys  brought  a  shooter
machine and fired Debal Ghosh. Thereafter, all left towards Gouripur.
26.   PW 3 Kamal Nath, who has a shop  on  the  footpath  in  front  of  the
CPI(M) party office, stated in his evidence that in the  afternoon  of  16th
June at 03:00 PM to 04:00 PM, he was sitting inside the party office and  he
went  out  of  the  office  room  and  was  standing  outside    smoking   a
'cigarette'. At that time, a red Gypsy came and stationed  at  the  distance
of 3 cubits from him, from which  Anjan  Dasgupta  and  Biswanath  Paul  got
down. At that very time, 4 persons came by  2  Bicycles  from  the  side  of
Mitra Bagan. Two of the said persons fired from  outside  the  party  office
and shot Debol Ghosh. They left the bicycles and left  the  place  by  Gypsy
towards Gouripur.
27.   The almost similar eye-witness account has been narrated by other eye-
witness who were examined by Prosecution.
28.   Learned Sessions Judge pointing out certain  discrepancy/contradiction
in the statement held that the evidence by eye-witnesses  does  not  inspire
confidence. Learned  Sessions  Judge  had  also  made  observation  that  no
explanation had been offered by the  prosecution  as  to  why  statement  of
witnesses under Section 164 Cr. P.C. was recorded with delay. The  statement
given by the eye-witness in the court cannot  be  discarded  merely  on  the
grounds that statement which got recorded under Section 164 Cr.P.C.  by  the
prosecution was not immediately recorded.
29.   The cross-examination of I.O. PW.31 does not indicates  that  the  any
explanation was asked from him regarding delayed recording of the  statement
under Section 164 Cr.P.C.
30.   The High Court has also re-appraised the entire oral evidence and  had
observed that eye-witnesses stick to their earlier statements except one  or
two  witnesses  who  attempted  to  add  something  during  the  statements.
Following had been recorded by the High Court at Page 22:
“...We have carefully examined the  statement  of  the  witnesses  and  also
their statement recorded under Section 164 Cr.P.C. and we  find  that  there
was attempt on the part of one  or  two  witnesses  to  add  something  more
during their statement recorded before the learned  Magistrate,  but,  as  a
whole all the  eye-witnesses  sticked  to  their  earlier  statements  given
before the I.O. and they made the same  statement  before  the  trial  Court
during their examination...”

31.   After looking  to  the  evidence  of  eye-witnesses,  High  Court  has
observed that all of them had deposed of arrival of  Maruti  Gypsy  Vehicle,
Presence of Anjan Dasgupta and Biswanath Paul on  the  place  of  occurrence
and about giving instructions to shoot Debol Ghosh and subsequently  helping
the persons to flee from the place  of  occurrence  by  getting  inside  the
Maruti Gypsy Vehicle. Following  are  the  findings  recorded  by  the  High
Court:
“...From the statements of PW.1, PW.2, PW.3,  PW.4,  PW.6,  PW.10  and  also
from PW.21 we find that all of them deposed about arrival of a maruti  gypsy
vehicle, presence of Anjan Dasgupta and  Biswanath  Paul  on  the  place  of
occurrence and also about giving of instruction to shot at Debal  Ghosh  and
subsequently for helping the persons to flee from the  place  of  occurrence
by getting inside the maruti gypsy vehicle...”

32.   The appreciation of  evidence  of  eye-witnesses  and  discarding  the
aforesaid evidences by the learned Sessions Judge was on flimsy  ground  and
based on surmises and conjectures which has  been  correctly  re-appreciated
by the High Court. For instance, with regard to eye-witness PW 2 Vijay  Das,
learned Sessions Judge discard the evidence of  PW  2  by  giving  following
reasons:
“...In the statement recorded under Section 164  Cr.P.C.  marked  Exhibit  1
this gentleman told that on hearing sound of  firing  he  rushed  and  found
that Debal Ghosh was shot and one was going to pick up the bicycle. At  that
time he tried to catch the said man and Anjan said “be  quickly  the  pigs”.
In the statement recorded under Section 164  Cr.P.C.  which  was  made  more
than two months after the alleged  date  of  occurrence  did  not  name  the
person whom he tried to catch. So this omission  contradicts  the  aforesaid
evidence of the PW.2. The PW2's evidence being contradicted by  his  earlier
belated  statement  under  Section  164  Cr.P.C  as  well  as  suffers  from
improbability cannot be relied on...”

33.   The mere fact that the witness did not name the person whom  he  tried
to catch does not lead to  any  contradiction  since  all  eye-witness  have
stated that four persons came by 2 bicycles one of whom shoot Debol Ghosh.
34.   PW 2 stated that he tried to catch one person  of  the  aforesaid  and
omission not to name the person does not lead to any contradiction  nor  can
result in discarding the  evidence.  The  observation  of  learned  Sessions
Judge that the evidence suffers from the improbability and cannot be  relied
is also not based on any valid reason.
35.   Some minor contradiction has  been  pointed  out  by  learned  Session
Judge in the  evidence  of  other  eye-witnesses  which  have  rightly  been
discarded by the High Court and the High  Court  after  re-appreciating  the
evidence has rightly come to the conclusion that the occurrence as  well  as
participation  of  Anjan  Dasgupta,  the  appellant  was  proved.  Following
conclusion has been recorded by the High Court:
“...Thus from the evidence on record we get that several  witnesses  of  the
locality who were present on the  place  of  occurrence  had  noticed  Anjan
Dasgupta and Biswanath Paul on the place  of  occurrence  and  also  noticed
their active participation in the matter of murder of  Debal  Ghosh  and  in
this context we  want  to  record  that  the  learned  trial  Court  totally
misdirected itself in the matter of appreciation of the evidence of the eye-
witness.”


36.   High Court was conscious that the case where acquittal has been  made,
while entertaining an appeal over an order of acquittal  if  two  views  are
possible on making  proper  appreciation  of  available  evidence  the  view
going in favour of accused have to given  importance.  It  is  well  settled
that in case where an order of acquittal  has  been  made  on  improper  and
erroneous appreciation of evidence, it  is  always  open  to  the  court  of
appeal to make proper and reasonable appreciation evidence and  differ  from
the order of acquittal and  in  such  event,  it  shall  never  hesitate  in
reversing the same. Ultimately, the High Court concluded:
“...From scanning of the entire prosecution evidence and  having  regard  to
submission of the respective parties, we are constrained to  hold  that  the
learned trial Court was totally wrong both in law and, in  fact,  in  making
its observation that the FIR was antedated and anti timed and a  manipulated
one. The trial Court also erred in law by discarding the FIR  for  delay  in
dispatching the same in the Court of the Magistrate.”


37.   We are of the opinion that the findings  and  conclusion  recorded  by
the High Court are based on the correct appreciation of evidence and do  not
suffer from any  error.  The  judgment  of  the  High  Court  reversing  the
acquittal recorded by learned Sessions Judge needs  no  interference.  There
are no merits in this appeal. The appeal is dismissed. The appellant  is  on
bail his bail bonds are cancelled and the appellant is directed to be  taken
into custody forthwith.

                             .............................................J.
                              (PINAKI CHANDRA GHOSE)


                                ..........................................J.
                                             (ASHOK BHUSHAN)
NEW DELHI;
NOVEMBER 25,  2016.