But, because of lodging of FIR, Ext D2, and his statement under Section 313 of the Cr.P.C., one fact that completely stands established and is undisputable is that the appellant was present at the place of occurrence and also that he had a fight with the deceased. Once these two circumstances are admitted, they fully provide corroboration to the dying declaration, the statements of PW11 and PW14 as also the other material evidence led by the prosecution. If the appellant was carrying a sword and others were carrying lathis, it is not understable as to how could the deceased suffer as many as 15 injuries including the incised wound, abrasions, amputation of middle finger from terminal phalages and other serious injuries and the appellant merely suffered six simple injuries. This itself belies the stand taken by the appellant.

English: penal code (Photo credit: Wikipedia)

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.106 OF 2010

Bable @ Gurdeep Singh … Appellant

Versus

State of Chattisgarh Tr.P.S.O.P. Kursipur … Respondent

J U D G M E N T
Swatanter Kumar, J.

1. The present appeal is directed against the judgment of the High Court
of Judicature at Chattisgarh at Bilaspur dated 15th November, 2006 wherein
the High Court maintained the judgment of conviction and order of sentence
passed by the learned Fourth Additional Sessions Judge, Durg, Chattisgarh,
convicting the appellants for an offence under Section 302 read with
Section 34 of the Indian Penal Code, 1860 (for short ‘IPC’) and awarding
life sentence to them. Though there were three accused before the trial
court, the present appeal has been preferred only by appellant/accused
No.1, Bable @ Gurdeep Singh. While impugning the judgment under appeal,
the learned counsel appearing for the appellant has, inter alia, but
primarily raised the following arguments:

1. The injuries found on the person of the accused have not been explained
by the prosecution. The deceased having suffered serious injuries that
are stated to have been inflicted by the accused, could not have been in
a condition to inflict any injuries upon the person of the accused. This
leads to the conclusion that the accused had been assaulted by the
deceased before the deceased himself suffered the injury. The injuries
were admittedly found on the person of the accused. The prosecution has
failed to explain such injuries. This failure on the part of the
prosecution renders the story of the prosecution not only improbable but
unbelievable as well.

2. Assuming, though not admitting, that the incident has been proved, the
accused was entitled to the right to private defence as he was attacked
and he caused the injuries in the process of protecting himself. Thus,
the contention is that the accused/appellant cannot be convicted under
Section 302 IPC and his conviction under Section 302/34 IPC cannot stand
the scrutiny of law.

3. Further the appellant states that the informant Tariq Shakil, PW1, had
turned hostile. The FIR not being a substantive piece of evidence, would
discredit the entire case of the prosecution. The Courts, in the
judgments under appeal, have failed to appreciate the evidence in its
proper perspective and hence the judgments are liable to be set aside.

4. Lastly, the dying declaration is not corroborated by other prosecution
witnesses and no details have been furnished therein. As such the Courts
could not have relied upon the said dying declaration.

2. Before we proceed to deliberate upon the legal and factual aspects of
the case with reference to the arguments advanced, it would be necessary to
refer to the case of the prosecution in brief.

3. On 14th May, 1999 at about 10.15 p.m., when Tariq Shakil, PW1, was
sitting in his S.T.D.-P.C.O. shop situated at New Kursipur, Gurunanak
Chowk, one Guddu @ Jiten Soni, PW12, came there and informed PW1 that the
accused Sardar Bable is quarrelling with Ishwari Verma in front of his
shop. Upon hearing this, PW1 closed his shop and went along with PW12 to
the place of occurrence. The accused Bable was carrying a sword in his
hand and was running towards them. Being frightened, both of them went
towards a street. After sometime, there was a noise that the accused Bable
had caused injuries to Ishwari Verma and the said victim was lying in
injured condition. He was removed to BSP Hospital, Sector 9, by his uncle
Balwant Verma, PW14, where he was admitted. Dr. A.D. Banerjee, PW2, had
examined him and declared him brought dead. A written report in this
regard was prepared being Ex.P5. The matter was reported to Bhilai City
Police Station. Even a telephonic message was sent. Sub-Inspector,
Suresh Bhagat, PW10, posted at that Police Station registered the case
under Section 174 Cr.P.C., Ex.P-22. On the same day at about 12.15 a.m. in
the night, PW1 got the First Information Report (FIR), Ext.P-1, of the
incident registered at Police Station Kursipur and a case under Section 302
IPC was registered. The Investigating Officer, Sub-Inspector P.N. Singh,
PW13 took up the investigation and went to the site. He prepared the site
plan, Ex.P14, seized blood-stained earth, plain earth and a piece of chain
of the watch and for that he prepared a seizure memo Ex.P-20. He also
prepared the inquest report vide Ex.P4, in presence of the Panchas. The
post mortem examination of the body of the deceased was performed by Dr.
S.R. Surendra, PW5 at 11.30 a.m. on 15th May, 1999. The post mortem report
was submitted vide Ext.P-8 which noticed the following injuries on the body
of the deceased: -

“1. Incised wound 5 c.m. x ½ c.m. upto bone deep red colour
longitudinal on anterior its and middle of scalp.
2. Incised wound 8 c.m. x 1 c.m. up to bone deep red colour.
Margin everted oblique anterior and right side of scalp.

3. Incised wound 3 c.m. x ¼ c.m. ¼ c.m. above left ear.

4. An abrasion 9 c.m. x ½ c.m. long below left ear.

5. An abrasion 6 c.m. x ½ c.m. neck colored below the first
wound.

6. Incised wound 5 c.m. x ½ c.m. x ½ c.m. on left shoulder
laterally.

7. Incised wound 1 c.m. x ½ c.m. x ½ c.m. on left shoulder
anteriority.

8. Amputation middle finger from terminal phalages.

9. Ring finger also cut from terminal phalages from palmer
aspect only.

10. Incised wound 8 c.m. x ½ c.m. x ½ c.m. red coloured on
upper part and lateral surface of right arm.

11. Abrasion 2 c.m. x 2 c.m. red coloured on lower part and
lateral surface of right upper arm.

12. Incised wound 7 c.m. x ½ c.m. x ½ c.m. lateral surface of
elbow.

13. Incised wound 15 c.m. x 4 c.m. x 3 c.m. deed exposed
tendon and blood vessel visible through wound. On lower
part and medial surface of right fore arm.

14. Incised wound of 4 c.m. x 4 c.m. between right hand thumb
and index finger. Bone of index finger visible through the
wounds.

15. Perforated wound directed from behind, anteno laterally, 4
c.m. above the left knee joint. Wound entry cut of post
medially size 4 c.m. x 3 c.m. oblique. On dissection
popliteal artery is found cut.”

4. The cause of death has been recorded as unconsciousness, which
occurred prior to death and had arisen due to the injuries caused by some
pointed sharp edged weapon.

5. The accused were arrested on the basis of their disclosure statements
Exts.P-15, P-16 and P-26. Weapons used in the crime were seized and
seizure memo was prepared vide Exts.P-17, P-18 and P-27. Blood stained
clothes were recovered from the accused Bable and seizure memo Ext.P-19 was
prepared. Sealed clothes of the deceased received from the Hospital were
seized and seizure memo was prepared vide Ext.P.29. The seized articles
were sent for chemical examination.

6. It is further the case of the prosecution that the people around the
place of the incident had seen the occurrence. Immediately thereafter,
sister-in-law of the deceased, Janki, PW11 and uncle Balwant PW14 had
reached the place of the incident. Balwant, PW14, had enquired from the
deceased as to who were the assailants. After he gave the names, the
accused persons were arrested and they made disclosure statements, as
stated above.

7. It is noteworthy that the appellant Bable @ Gurdeep Singh had stated
that on the date of incident, he was returning after collecting money for
the milk supplied to the Thelawala at about 1-1.30 a.m. in the night. He
saw Ishwari, Dalip, Dimple and Bage quarrelling at Gurunanak Chowk. He
enquired from Ishwari (the deceased), who was his friend, as to what had
happened. Ishwari, without any provocation, abused him and inflicted
injury on his head with the sword that he was carrying. Thereupon, the
accused ran away. Dalip and Prakash saw him running away. After some time
of leaving the place, he lodged a police report of this incident giving
details of the injuries that he had suffered and, in fact, he was medically
treated and five stitches were put on his head. According to him, he had
been falsely implicated in the present case.

8. The accused persons faced the trial and the learned Trial Court, vide
its detailed judgment dated 27th February, 2001 held all the accused
persons guilty of an offence under Section 302 read with Section 34 IPC for
causing death of the deceased in furtherance of their common intention and
sentenced them to undergo life imprisonment. Upon appeal by the accused
persons, the High Court came to the conclusion that the oral dying
declaration was not corroborated by the FIR as the names of two accused,
namely, Pappi alias Arjun Singh and Vikky alias Vikram were not mentioned
in the latter and held that there was no legal and clinching evidence to
implicate these two accused persons and hence the Court acquitted both of
them. In relation to Bable alias Gurdeep Singh, the High Court sustained
the findings, judgment of conviction and order of sentence passed by the
Trial Court. Legality and correctness of this judgment of the High Court
dated 15th November, 2006 has been assailed in the present appeal.

9. Reverting to the submissions made on behalf of the appellant, we may
refer to the fact that the FIR had been lodged upon the statement of PW1.
PW1 did not completely support the case of the prosecution and with the
permission of the Court he was declared hostile. The contention is that
the case of the present appellant would also stand equated to the case of
the two acquitted accused persons and the High Court has fallen in error of
law in not acquitting the accused-appellant as well. It cannot be denied
that the FIR Ext.P-1 was registered upon the statement of PW1 and he
himself has not supported the case of the prosecution, which creates a
doubt in the case of the prosecution.

10. Once registration of the FIR is proved by the Police and the same is
accepted on record by the Court and the prosecution establishes its case
beyond reasonable doubt by other admissible, cogent and relevant evidence,
it will be impermissible for the Court to ignore the evidentiary value of
the FIR. The FIR, Ext. P1, has duly been proved by the statement of PW10,
Sub-Inspector Suresh Bhagat. According to him, he had registered the FIR
upon the statement of PW1 and it was duly signed by him. The FIR was
registered and duly formed part of the records of the police station which
were maintained in normal course of its business and investigation. Thus,
in any case, it is a settled proposition of law that the FIR by itself is
not a substantive piece of evidence but it certainly is a relevant
circumstance of the evidence produced by the Investigating Agency. Merely
because PW1 had turned hostile, it cannot be said that the FIR would lose
all its relevancy and cannot be looked into for any purpose. In the
present case, PW11 and PW14 are the two persons who had reached the place
of incident immediately after the occurrence. They were instantaneously
told by the deceased as to who the assailants were. They have
substantially supported what had been recorded in the FIR which further
stands corroborated by the medical evidence and the statements of other
witnesses. In these circumstances, we cannot discredit the statements of
PW11 and PW14 merely because PW1 has turned hostile. Besides this, in
furtherance to the statements of the accused persons, recovery of the
weapons used in the crime was effected.

11. The dying declaration made by the deceased to PW14 cannot be lost
sight of by the Court. To the rule of inadmissibility of hearsay evidence,
oral dying declaration is an exception. The dying declaration in this case
is reliable, cogent and explains the events that had happned in their
normal course which was not only a mere possibility but leaves no doubt
that such events actually happened as established by the prosecution. Once
there exists reliable, cogent and credible evidence against one of the
accused, the mere acquittal of other accused will not frustrate the case of
the prosecution. Where the High Court, exercising its judicial discretion
ultra-cautiously, acquitted the unnamed accused in the FIR, there the High
Court for valid reasons held the present appellant guilty of the offence.
The High Court had recorded reasons in support of both these conclusions.
[Ref. Krishan Lal v. State of Haryana [(1980) 3 SCC 159].

12. Thus, we find that the present appellant cannot derive any benefit
from the acquittal of the two other accused persons, with which this Court
is not concerned as the State has not preferred any appeal against the
decision of the High Court. Moreover, the case of the prosecution is not
merely based on the dying declaration made by the deceased to PW14 but
there also exist other circumstances which support the view in favour of
guilt of the appellant, i.e., the disclosure made by the appellant and the
consequent recovery of the weapons used in the crime, the statement of
Investigating Officer, PW13, the statement of the doctor, PW5, and, in
fact, the own version of the accused in relation to the incident.

13. In the present case, the accused had led defence before the Trial
Court and examined as many as four witnesses in support thereof. DW4, Head
Constable Manharan Yadav stated that he was posted as a Constable at PS
Kursipur outpost on 14th May, 1999. At about 22:45 hrs., the appellant
Bable @ Gurdeep Singh appeared and reported orally that while he was going
in a drunkard condition behind the Gurdwara, Ishwari met him on the way who
posed to be a dada. He along with Manpreet, who was armed with lathi,
caused injuries to both of his hands, head and then he had come to lodge a
report. In furtherance to this report, the accused was examined by DW1,
Dr. Praveen Chandra Agarwal, who noticed six injuries on the person of the
accused and found that injury Nos.1 to 3 had been caused by some hard and
sharp-edged weapon and injury Nos.4 to 6 were caused by some hard and blunt
weapon and all the injuries were caused within 24 hours. The appellant is
also stated to have been smelling of liquor at that time but was not
intoxicated. Further, injury Nos.2 to 6 were simple in nature and for
injury No.1, X-ray of the skull, was advised but that also was not found to
be grievous. In view of the nature of injuries suffered, the story
advanced by the accused can hardly be believed. Where the deceased
suffered fatal injuries, the accused despite having been assaulted by two
people with lathi and weapon just suffered simple injuries. Thus, the
possibility of the injuries being self-inflicted or having been suffered in
some other way cannot be ruled out.

14. The legislative scheme contained under the provisions of Section 313
of the Code of Criminal Procedure, 1973 (Cr.P.C.) is to put to the accused
all the incriminating material against him and it is equally important to
provide an opportunity to the accused to state his case. It is the option
of the accused whether to remain silent or to provide answer to the
questions asked by the Court. Once the accused opts to give answers and,
in fact, puts forward his own defence or the events as they occurred, then
the accused is bound by such statement and the Court is at liberty to
examine it in light of the evidence produced on record.

15. In the present case, the accused had opted to give an explanation, as
aforenoticed. It was for the accused to satisfy the Court that his
explanation was true and correct. Both the Courts below have concurrently
rejected the explanation offered by the accused. On the contrary, they
have found the said explanation to be factually incorrect. It was for the
prosecution to explain the injuries on the person of the appellant as to
when, how and by whom they were inflicted as also the fact whether they
were inflicted during the occurrence in question or elsewhere? Of course,
the prosecution has not rendered any explanation as to how the appellant
had suffered these injuries but that by itself is not sufficient to believe
that the appellant is innocent and the explanation rendered by him is
established ipso facto. The onus is still on the appellant-accused to
prove that his explanation is correct and in accordance with law. In the
present case, the accused has stated that the deceased was carrying a sword
and when he enquired from him as to why the other persons were quarrelling
with and beating him, the deceased had assaulted him with the sword.
Firstly, if a person is assaulted with a sword, there is hardly any
likelihood of him to suffer injuries of the kind that the appellant had
suffered; secondly, in the FIR, Ext.D-2, which he had got registered, it is
specifically stated that the injuries were caused by lathi by the deceased.
Thus, there is apparent contradiction of serious nature (as to the weapon
used in committing the said assault against the appellant). Thirdly, the
doctor (DW1) who had examined him, in his report had nowhere noticed as to
how the accused had suffered those injuries. Even in his explanation under
Section 313 Cr.P.C., the appellant has not stated that he had consumed
liquor whereas, according to the doctor, the appellant was smelling of
liquor though he was not intoxicated. Lastly, the explanation offered by
the appellant seems to be very unnatural and opposed to normal behavior of
a human being. The appellant claims to be a friend of the deceased and
that he had asked the deceased as to why others were quarrelling with him
and had intended to help the deceased. If that be so, no person, in his
senses, is likely to cause injuries to a well wisher, that too, with a
sword. All these circumstances show that the explanation offered by the
accused is neither plausible nor true.

16. But, because of lodging of FIR, Ext D2, and his statement under
Section 313 of the Cr.P.C., one fact that completely stands established and
is undisputable is that the appellant was present at the place of
occurrence and also that he had a fight with the deceased. Once these two
circumstances are admitted, they fully provide corroboration to the dying
declaration, the statements of PW11 and PW14 as also the other material
evidence led by the prosecution. If the appellant was carrying a sword and
others were carrying lathis, it is not understable as to how could the
deceased suffer as many as 15 injuries including the incised wound,
abrasions, amputation of middle finger from terminal phalages and other
serious injuries and the appellant merely suffered six simple injuries.
This itself belies the stand taken by the appellant. In any case, the
deceased could not have caused injuries to any other person as in
consequence of the assault upon himself, he would have had no strength left
to cause any injury to others. Strangely, the accused denied all other
questions as ‘maloom nahin’ (don’t know) or ‘incorrect’ and gave
explanation which is not worthy of any credence.

17. For the reasons aforestated, we find no merit in the present appeal
and the same is dismissed.
.…................................J.
[Swatanter Kumar]

.…................................J.
[Ranjan Gogoi]
New Delhi;
July 10, 2012.