LexSARVESH NARAIN SHUKLA versus DAROGA SINGH & ORS.
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A B SARVESH NARAIN SHUKLA V. DAROGA SINGH & ORS. OCTOBER 12, 2007 [S.B. SINHA AND HARJIT SINGH BEDI, JJ.] Penal Code, 1860-ss. 302 rlw 149, 147 and 148-Triple murder-Two eye witnesses accompanying the deceased at the time C of incident-One of them killed during trial-Other turning hostile- Two more eye-witnesses supporting prosecution case-Testimony of eye-witnesses supported by medical evidence-Trial Court acquitting one and convicting rest of the accused-High Court further acquitting four accused and convicting rest of the accused-Appeal against D conviction as well as acquittal-Held: Order of Courts below not liable to be interfered with in the facts of the case-Prosecution case is proved by testimony of eye-witnesses and medical evidence. Evidence--C'hance witness-Testimony of-Reliability on-Held: E If testimony of chance witness found to be creditworthy, the same not to be discarded on mere ground that his presence was by chance. Appellants-accused were charged u/ss.147, 148, 302 r/w s. 149 IPC for having caused death of three persons. The prosecution case was F that when the three deceased were coming in a car alongwith First Informant and PW-4, appellants-accused alongwith other accused, all armed with fire arms, started firing at the car from a close range as the car stopped after collusion with a bus. The firing resulted in instant death of three, who were sitting on the front seat of the car. First Informant G and PW-4, sitting on the rear seat, rushed out of the car and in that process received some injuries. One of the accused picked up rifle of PW 4 which was kept in the car. They ran away from the spot. First Informant lodged FIR. Statements of PW 4 and First Informant were recorded by the Police. H 300 .. /: J SARVESH NARAIN SHUKLA v. DAROGA SINGH 301 - ~ During trial, First Informant was killed. PWs 1, 4 and 5 were A examined as eye-witnesses. PW 4 was declared hostile. Trial Cou.rt ~ acquitted one of the accused of all the charges. Howeyer, other accused __,, were convicted u/s. 147, 148, 302 r/w s. 149 IPC. High Court further acquitted four of the accused holding that their B names had been revealed by PW-1 for the first time in Court and their -f conviction could not be based on the testimony of PW 5 alone. Hence ...... the present appeals against conviction as well as acquittal • Accused contended that Fm has come into existence after inquest proceedings; that the delay in sending the Special Report to the c Magistrate has not been explained; that PWs 1and5 were chance witnesses and have not been able to explain their presence at the spot; that non-examination of third person (the owner of the motor cycle) with whom PWs 1 and 5 had reached the spot, is fatal: that PW 4 turning hostile caused doubt on the prosecution story; that there was conflict in D ~ evidence regarding the dead bodies lying outside or inside the car, that there was no evidence to show that the car collided with a bus coming from opposite side bringing it to a sudden, stop; and that the prosecution ·case that Pistols and Carbines had been used for the offence, ~re falsified by medical evidence indicating use of only shotgun. E Dismissing the appeals, the Court HELD : 1. The matters have been considered by Trial Court apd High Court in its correct perspective and no interferene is called for. '>"· (Para20J (319-FJ F ..,., I 2. It is true the incident having been taken place on 4.4.1999 prima facie makes the receipt of the special report by the Magistrate on 8.4.99 rather inexplicable more so that a day after the incident, the police had itself moved an application under Sections 82 and 83 Cr. P.C. against G the accused in the Court of the Special Magistrate. There are how eyer -(~ certain circumstances on record which show that the FIR had in fact r been lodged at the time suggested by the prosecution. Therefore, the suspicion that a line or two might have squeezed in here or there in some of the documents prepared during the initial investigation would not H 302 SUPREME COURT REPORTS [2007] 11 S.C.R. A dislodge the huge volume of documentary and ocular evidence on the spontaneity of the FIR. [Para 9] [310-B, C, D; 311-C] 3. Prima facie it does appear that PWs 1 and 5 were cha~ce witnesses but on a closer look, it is found that they have adequately B explained their presence. If the court comes to the conclusion that the testimony of a chan
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