Supreme Court of India
Goverdhan vs The State Of Chhattisgarh on 9 January, 2025
Author: Surya Kant
Bench: B. R. Gavai, Surya Kant
2025 INSC 47 R E PO R TAB LE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 116 OF 2011
GOVERDHAN & ANR. ...APPELLANT(S)
VERSUS
STATE OF CHHATTISGARH …RESPONDENT(S)
JUDGMENT
NONGMEIKAPAM KOTISWAR SINGH, J.
1. The present appeal has been preferred against judgement and
order dated 30.11.2009 passed by the Division Bench of the High
Court of Chhattisgarh at Bilaspur in the Criminal Appeal No.
290/2002 whereby the High Court upheld the conviction and sentence
imposed upon the present two appellants under Section 302 read with
Section 34 of the Indian Penal Code (hereinafter referred as ‘IPC’)
while setting aside the conviction of the third accused and thus,
acquitting him.
2. As the two appellants are seeking reversal of the concurrent
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2025.01.10
findings by two courts, the Sessions Court and the High Court, this
14:38:03 IST
Reason:
Court has to tread very cautiously as observed by this Court on
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numerous occasions including in Mekala Sivaiah v. State of Andhra
Pradesh, (2022) 8 SCC 253 wherein it has been held that unless the
findings are perverse and rendered in ignorance of material evidence,
this Court should be slow in interfering with concurring findings. Thus
it was, observed in Mekala Sivaiah (supra) as follows:
“15. It is well settled by judicial pronouncement that Article
136 is worded in wide terms and powers conferred under the
said Article are not hedged by any technical hurdles. This
overriding and exceptional power is, however, to be exercised
sparingly and only in furtherance of cause of justice. Thus,
when the judgment under appeal has resulted in grave
miscarriage of justice by some misapprehension or misreading
of evidence or by ignoring material evidence then this Court is
not only empowered but is well expected to interfere to promote
the cause of justice.
16. It is not the practice of this Court to re-appreciate the
evidence for the purpose of examining whether the findings of
fact concurrently arrived at by the trial court and the High
Court are correct or not. It is only in rare and exceptional cases
where there is some manifest illegality or grave and serious
miscarriage of justice on account of misreading or ignoring
material evidence, that this Court would interfere with such
finding of fact.”In the above case, this Court, while dealing with a criminal
appeal against an order of the High Court of Judicature of Andhra
Pradesh upheld the conviction of the accused by the Sessions Court,
and declined to interfere with the conviction.
3. Keeping the aforesaid principle in mind, this Court would
proceed to decide the appeal at hand to examine whether there is some
manifest error or illegality and if any grave and serious miscarriage of
justice on account of misreading or ignoring material evidence has
occurred in the present case. This invariably would require a proper
examination of the facts and context of the case, for which we must
revisit the background facts of the case and evidence adduced.
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4. It may be noted that since the State has not preferred any appeal
against the acquittal of the third accused, Chintaram, the father of the
two appellants, we may not burden ourselves in detail with the
evidence relating to the initial conviction and the subsequent acquittal
of the third accused Chintaram except those as may have ramifications
for the present two appellants.
5. The case of the prosecution in brief is that on 23.09.2001, at
about 7.00 am, the complainant, Santosh Kumar Mandle (PW-6), who
was employed by the parents of the deceased, namely Shatrughan
Sharma (PW5) and Lata Bai (PW-10), while washing utensils at the
house of the deceased Suraj, heard a cry for help from Suraj. Upon
hearing, he came out of the house and saw the three accused
Goverdhan, Rajendra and Chintaram assaulting Suraj with an axe
(tangiya) and iron pipe. Chintaram was also hitting the deceased with
fists and kicks and urging his two sons, Goverdhan and Rajendra, the
present appellants to kill Suraj. Santosh (PW-6) immediately informed
Shatrughan Sharma (PW-5) and Smt. Lata Bai (PW-10) about the
incident. Santosh also mentioned about the altercation between
Chintaram and Suraj the previous night about ganja.
6. Soon, thereafter, an FIR was lodged by Santosh which was
registered u/s 307 IPC vide Ex. P/12 at around 7.30 am on the same
day i.e. 23.09.2001.
7. The injured Suraj was immediately rushed to the local
hospital and was examined by the doctor, Dr. G.R. Agarwal (PW-1)
who found as many as nine injuries on the deceased, which were as
follows :
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i) One contusion of 6 cm x 5 cm with active bleeding, and
fracture of under beneath bone over right temporal region.
ii) One incised wound of ½ cm x ½ cm x screen deep just above
right ear.
iii) One incised wound over occipital region of 5 cm x 1 cm x
skin deep.
iv) One incised wound over frontal region of 4 cm x 1 cm x skin
deep.
v) One incised wound of 4 cm x 1 cm x skin deep 10 cm from
injury No.3.
vi) One lacerated wound over right hand of 7 cm x 3 cm x skin
deep.
vii) One incised wound over left hand of 2 cm x ½ cm x skin
deep.
viii) One lacerated wound over right hand of 3 cm x 2 cm x skin
deep.
ix) One lacerated wound over right elbow of 3 cm x 2 cm x skin
Deep. Active bleeding was present over the injury.
In view of the seriousness of the injuries, the victim was
referred to the Medical College Hospital, Raipur and thereafter, shifted
to MMI Hospital where he succumbed to his injuries on 25.09.2001 at
about 9.22 pm. The cause of death was mentioned as coma as a result
of injuries received and death was opined to be homicidal in nature.
Subsequently, charge under Section 302 IPC was added to the FIR.
Necessary investigation was carried out by the Investigating Officer.
8. Based on the disclosure statement made by Goverdhan,
Appellant No. 1 on the same day on 23.9.2001, two blood-stained axes
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were recovered at his instance from his father’s room vide Ex.P/6.
Appellant No. 2 Rajendra also made a disclosure statement on
23.9.2001 at about 3.45 p.m. relating to iron pipe vide Ex.P/4, and the
same was recovered from his father’s room vide Ex.P/5. Blood-stained
soil and plain soil were recovered from the place of incident vide
Ex.P/7. Blood-stained clothes were seized from Shatrughan Sharma
(PW-5) vide Ex.P/10. Spot map was prepared by the Patwari (PW-8)
vide Ex.P/16 as witnessed by Santosh (PW-6), Kanhaiya (PW-11) and
Shailu (PW-2). Goverdhan and Rajendra were arrested on 23.9.2001
vide Exs. P/23 and P/24. Seized articles were examined by Dr. G.R.
Agrawal (PW-1) vide Ex.P/2. The seized articles were sent for medical
analysis. The presence of blood over two axes recovered at the
instance of Goverdhan and iron pipe recovered at the instance of
Rajendra, was confirmed vide Ex.P/30. The Investigating Officer (IO)
recorded the statements of the witnesses under Section 161 CrPC.
9. To prove the guilt of the accused, the Prosecution examined as
many as 15 witnesses. Statements of the accused were also recorded
under Section 313 of the Code, where they denied the circumstances
appearing against them and claimed innocence by pleading false
implication in the crime in question. The accused had also produced
two defence witnesses, Ramlal Yadav (DW-1) and Lakhan Lal Sahu
(DW-2) to prove that the police pressurised the mother of the deceased
Suraj, Lata Bai (PW-10) to give evidence against the accused persons.
10. The Court of the Second Additional Sessions Judge, Raipur, on
appreciation of the evidence before it and after hearing the parties,
convicted all the three accused persons under Section 302 read with
Section 34 of the IPC, and sentenced them to undergo rigorous
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imprisonment for life along with a fine of ₹10,000, and in default of
payment of such fine, each accused was directed to undergo additional
rigorous imprisonment for 3 years in terms of the judgment dated
06.03.2002.
11. In the statutory appeal preferred by the three accused persons,
the High Court affirmed the conviction of the present two appellants
while acquitting the third accused, Chintaram, by the impugned
judgment dated 30.11.2009.
12. Before the High Court, the appellants had taken various pleas,
including that the convictions were not based on cogent evidence, the
sole eye witness account of Lata Bai (PW-10) was uncorroborated and
wholly unreliable as her initial statement under Section 161 CrPC, was
recorded belatedly after 5 days of the incident and that all the
remaining non-official witnesses had turned hostile, including the
Complainant (PW-10) and the father of the deceased (PW-5) who were
cited to be eye-witnesses by the Prosecution, and seizure witnesses.
13. On the other hand, it was contended on behalf of the
Prosecution before the High Court that there was no reason to
disbelieve the testimony of the mother of the deceased, Lata Bai (PW-
10) merely because her statement was recorded belatedly as her name
finds place in the FIR filed by Santosh (PW-6) which was filed within
half an hour of the incident and the filing of the FIR was proved by the
evidence of the hostile witness Santosh (PW-6), and there were other
corroborating evidence. The Prosecution also relied on the decision of
this Court in State of U.P. v. Satish, (2005) 3 SCC 114 in submitting
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that mere delay in examination of witnesses would not be fatal if
plausible and acceptable explanations are offered.
14. The High Court, after a detailed analysis of the evidence on
record, repelled the contentions of the appellants and convicted them
while acquitting Accused No. 3, their father, Chintaram, giving him
benefit of doubt about his participation in the crime.
15. Thus, the two appellants before us are impugning the judgment
passed by the High Court upholding their conviction.
16. The pleas of the appellants before us summarized as below:
(i) Since the third accused namely Chintaram, who is the father of
the two appellants had been acquitted by the High Court on the
same set of evidence on which the two appellants had been
convicted, the two appellants should have also been acquitted
on the ground of parity since there is no material difference in
the nature and quality of evidence qua all the three accused.
(ii) That otherwise also, conviction could not have been sustained
on the basis of the uncorroborated testimony of a sole eye
witness, who is also an interested witness namely, Lata Bai
(PW10), the mother of the deceased.
(iii) The Sessions Court had convicted the appellants primarily on
the testimony of the Lata Bai (PW-10), the alleged eyewitness,
though she could not have been an eye witness, as Santosh (PW-
6), in his FIR mentioned that he informed about the incident to
the mother and father of Suraj, which shows that Lata Bai (PW-
10) only after being informed of the incident after the incident
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had occurred, came to know of the incident and hence, could not
have seen the incident.
(iv) Further, the statement of Lata Bai (PW-10) was recorded after
5 days of the incident and the Prosecution has not explained the
delay in recording her statement under Section 161 of the Code
and in absence of a proper explanation, her statement is not
reliable in connection with which the defence relied upon on the
decision of this Court in State of Orissa v. Brahmananda
Nanda, (1976) 4 SCC 288 wherein this Court held that failure
to mention the names of the accused for one and half days is
fatal.
(v) It was also contended that according to the Prosecution, the
mother (PW-10) and father (PW-5) of the deceased were present
but they made no attempt to intervene or try to rescue the victim
which shows that, they did not witness the incident and hence
the statement of Lata Bai is highly doubtful. In this regard, the
defence had cited the decision of this Court in State of Punjab
v. Sucha Singh, (2003) 3 SCC 153 wherein, it was observed by
this Court that any father, worth the name, who was claiming to
be present at the place of incident would not remain a mute
spectator when his son is being inflicted as many as twenty-four
injuries under his very nose.
(vi) It was also contended that there have been improvements, and
embellishments in the testimony of Lata Bai (PW-10), thus
rendering her evidence unreliable and not credible.
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(vii) The appellants also have contended that almost all the non-
official prosecution witnesses, except the mother, had turned
hostile and had not supported the prosecution case including the
informant Santosh (PW-6) and seizure witnesses, PW-2 and
PW-12.
17. On the other hand, before us also, it has been contended on
behalf of the Prosecution that as far as the two appellants are
concerned, it can be said that the conclusion drawn by the Trial Court
as well as the High Court is based on admissible and relevant evidence
and as such their conviction cannot be said to be suffering from any
illegality, and since there is no perversity in the finding arrived at by
the two courts below, this Court ought not interfere with the judgment
of the High Court.
ANALYSIS BY THIS COURT
18. In case of a crime committed, upon completion of investigation
by the investigation agency, the accused are brought before the court
to face trial. Under our criminal jurisprudence, the court ordinarily is
not privy to the evidence collected during the investigation by the
investigation agency. After completion of the investigation, what is
brought before the trial court is an array of evidence, both
documentary and oral, collected by the investigating agency against
the accused which are required to be marshalled and analyzed by the
court to arrive at appropriate conclusions. The prosecution seeks to
recreate the incident of crime before the court in sequence, based on
the evidence so collected, linking the accused with the commission of
crime. Such recreation of crime by the prosecution before the court is
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akin to putting the evidence together as in a jigsaw puzzle whereby all
the relevant pieces of evidence are put together to complete the picture
of the crime. The prime responsibility of the court is to see whether
this jigsaw puzzle has been properly placed by the prosecution from
which a clear picture emerges as to the happening of the incident with
the assigned role of the accused as part of the aforesaid jigsaw puzzle.
Only, thereafter, the role of the accused in perpetrating the offence can
be properly ascribed and proved and accordingly, criminal liability
fastened on the accused.
19. As per Section 3 of the Indian Evidence Act, 1872, a fact can be
said to have been proved when, after considering the matters before it,
the court either believes it to exist or considers its existence so
probable that a prudent man ought, under the circumstances of the
particular case, to act up on the supposition that it exists. The court
undertakes this exercise of examining whether the facts alleged
including the particular criminal acts attributed to the accused are
proved or not.
20. It is also to be noted that the law does not contemplate stitching
the pieces of evidence in a watertight manner, for the standard of proof
in a criminal case is not proof beyond all doubts but only beyond
reasonable doubt. In other words, if a clear picture emerges on piecing
together all evidence which indicates beyond reasonable doubt of the
role played by the accused in the perpetration of the crime, the court
holds the accused criminally liable and punishes them under the
provisions of the penal code, in contradistinction to the requirement of
proof based on the preponderance of probabilities as in case of civil
proceedings.
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21. It will be relevant to discuss, at this juncture, what is meant by
“reasonable doubt”. It means that such doubt must be free from
suppositional speculation. It must not be the result of minute
emotional detailing, and the doubt must be actual and substantial and
not merely vague apprehension. A reasonable doubt is not an
imaginary, trivial or a merely possible doubt, but a fair doubt based
upon reason and common sense as observed in Ramakant Rai v.
Madan Rai, (2003) 12 SCC 395 wherein it was observed as under :
“24. Doubts would be called reasonable if they are free from a
zest for abstract speculation. Law cannot afford any favourite
other than the truth. To constitute reasonable doubt, it must be free
from an overly emotional response. Doubts must be actual and
substantial doubts as to the guilt of the accused persons arising
from the evidence, or from the lack of it, as opposed to mere vague
apprehensions. A reasonable doubt is not an imaginary, trivial or
a merely possible doubt; but a fair doubt based upon reason and
common sense. It must grow out of the evidence in the case.”
22. While applying this principle of proof beyond reasonable doubt
the Court has to undertake a candid consideration of all the evidence
in a fair and reasonable manner as observed by this Court in State of
Haryana v. Bhagirath (1999) 5 SCC 96 as follows:
“8. It is nearly impossible in any criminal trial to prove all the
elements with a scientific precision. A criminal court could be
convinced of the guilt only beyond the range of a reasonable
doubt. Of course, the expression ‘reasonable doubt’ is incapable of
definition. Modern thinking is in favour of the view that proof
beyond a reasonable doubt is the same as proof which affords
moral certainty to the Judge.
9. Francis Wharton, a celebrated writer on criminal law in the
United States has quoted from judicial pronouncements in his book
Wharton’s Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as
follows:
‘It is difficult to define the phrase “reasonable doubt”. However,
in all criminal cases a careful explanation of the term ought to be
given. A definition often quoted or followed is that given by Chief
Justice Shaw in the Webster case [Commonwealth v. Webster, 5Page 11 of 62
Cush 295 : 59 Mass 295 (1850)] . He says:“It is not mere possible
doubt, because everything relating to human affairs and
depending upon moral evidence is open to some possible or
imaginary doubt. It is that state of the case which, after the entire
comparison and consideration of all the evidence, leaves the
minds of the jurors in that consideration that they cannot say they
feel an abiding conviction to a moral certainty of the truth of the
charge.”’
10. In the treatise The Law of Criminal Evidence authored by H.C.
Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
‘The doubt to be reasonable must be such a one as an honest,
sensible and fair-minded man might, with reason, entertain
consistent with a conscientious desire to ascertain the truth. An
honestly entertained doubt of guilt is a reasonable doubt. A vague
conjecture or an inference of the possibility of the innocence of the
accused is not a reasonable doubt. A reasonable doubt is one
which arises from a consideration of all the evidence in a fair and
reasonable way. There must be a candid consideration of all the
evidence and if, after this candid consideration is had by the
jurors, there remains in the minds a conviction of the guilt of the
accused, then there is no room for a reasonable doubt.’
23. The concept of reasonable doubt has to be also understood in
the Indian context, keeping in mind the social reality and this principle
cannot be stretched beyond a reasonable limit to avoid generating a
cynical view of law as observed by this Court in Shivaji Sahebrao
Bobade v. State of Maharashtra, (1973) 2 SCC 793 as follows:
“6. Even at this stage we may remind ourselves of a necessary
social perspective in criminal cases which suffers from insufficient
forensic appreciation. The dangers of exaggerated devotion to the
rule of benefit of doubt at the expense of social defence and to the
soothing sentiment that all acquittals are always good regardless
of justice to the victim and the community, demand especial
emphasis in the contemporary context of escalating crime and
escape. The judicial instrument has a public accountability. The
cherished principles or golden thread of proof beyond reasonable
doubt which runs through the web of our law should not be
stretched morbidly to embrace every hunch, hesitancy and degree
of doubt. The excessive solicitude reflected in the attitude that a
thousand guilty men may go but one innocent martyr shall not
suffer is a false dilemma. Only reasonable doubts belong to the
accused. Otherwise any practical system of justice will then break
down and lose credibility with the community. The evil ofPage 12 of 62
acquitting a guilty person light heartedly as a learned Author
[ Glanville Williams in ‘Proof of Guilt’.] has sapiently observed,
goes much beyond the simple fact that just one guilty person has
gone unpunished. If unmerited acquittals become general, they
tend to lead to a cynical disregard of the law, and this in turn leads
to a public demand for harsher legal presumptions against
indicted “persons” and more severe punishment of those who are
found guilty. Thus, too frequent acquittals of the guilty may lead to
a ferocious penal law, eventually eroding the judicial protection of
the guiltless. For all these reasons it is true to say, with Viscount
Simon, that “a miscarriage of justice may arise from the acquittal
of the guilty no less than from the conviction of the innocent .…”
In short, our jurisprudential enthusiasm for presumed innocence
must be moderated by the pragmatic need to make criminal justice
potent and realistic. A balance has to be struck between chasing
chance possibilities as good enough to set the delinquent free and
chopping the logic of preponderant probability to punish marginal
innocents. We have adopted these cautions in analysing the
evidence and appraising the soundness of the contrary conclusions
reached by the courts below. Certainly, in the last analysis
reasonable doubts must operate to the advantage of the appellant.
In India the law has been laid down on these lines long ago.”
24. Further, what would be the standard degree of “proof” which
would be required in any particular case was also discussed in the
aforesaid case of Ramakant Rai (supra) in the following words:
“23. A person has, no doubt, a profound right not to be convicted
of an offence which is not established by the evidential standard of
proof beyond reasonable doubt. Though this standard is a higher
standard, there is, however, no absolute standard. What degree of
probability amounts to “proof” is an exercise particular to each
case. Referring to (sic) of probability amounts to “proof” is an
exercise, the interdependence of evidence and the confirmation of
one piece of evidence by another, as learned author says : [see The
Mathematics of Proof II : Glanville Williams, Criminal Law
Review, 1979, by Sweet and Maxwell, p. 340 (342)]
“The simple multiplication rule does not apply if the
separate pieces of evidence are dependent. Two events are
dependent when they tend to occur together, and the
evidence of such events may also be said to be dependent.
In a criminal case, different pieces of evidence directed to
establishing that the defendant did the prohibited act with
the specified state of mind are generally dependent. A
juror may feel doubt whether to credit an alleged
confession, and doubt whether to infer guilt from the fact
that the defendant fled from justice. But since it isPage 13 of 62
generally guilty rather than innocent people who make
confessions, and guilty rather than innocent people who
run away, the two doubts are not to be multiplied
together. The one piece of evidence may confirm the
other.”
24. ………………..
………………..
25. The concepts of probability, and the degrees of it, cannot
obviously be expressed in terms of units to be mathematically
enumerated as to how many of such units constitute proof beyond
reasonable doubt. There is an unmistakable subjective element in
the evaluation of the degrees of probability and the quantum of
proof. Forensic probability must, in the last analysis, rest on a
robust common sense and, ultimately, on the trained intuitions of
the judge. While the protection given by the criminal process to the
accused persons is not to be eroded, at the same time, uninformed
legitimisation of trivialities would make a mockery of the
administration of criminal justice. This position was illuminatingly
stated by Venkatachaliah, J. (as His Lordship then was) in State of
U.P. v. Krishna Gopal [(1988) 4 SCC 302 : 1988 SCC (Cri) 928 :
AIR 1988 SC 2154] .”
25. At this point, it may be also relevant to mention an observation
made by Lord Denning, J. in Miller v. Miller of Pensions (1947) 2 All
ER 372, 373 H:
“That degree is well settled. It need not reach certainty, but it must
carry a high degree of probability. Proof beyond reasonable doubt
does not mean proof beyond the shadow of a doubt. The law would
fail to protect the community if it admitted fanciful possibilities to
deflect the court of justice….”
26. Thus, the requirement of law in criminal trials is not to prove
the case beyond all doubt but beyond reasonable doubt and such doubt
cannot be imaginary, fanciful, trivial or merely a possible doubt but a
fair doubt based on reason and common sense. Hence, in the present
case, if the allegations against the appellants are held proved beyond
reasonable doubt, certainly conviction cannot be said to be illegal.
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27. In the present case, as far as the death of the deceased is
concerned, there is no dispute about the same. The appellants have not
contested the case of the Prosecution that the deceased died on
account of grievous injuries caused by sharp weapons. Their plea is
that of ignorance of the death and also alibi, that they were in another
village. As such, it may be unnecessary for us to go into detail as
regards the nature of injuries received by the deceased which has been
already described in the earlier part of the judgment and the cause of
the injury, except for corroboration of the evidence of the sole eye
witness.
28. Since the appellants have contended that the non-official
prosecution witnesses, except for one, have not supported the
prosecution case, it would be necessary for us to revisit the evidence
and testimonies of the prosecution witnesses and to see whether
appreciation of the same by the Trial Court and the High Court suffers
from any material illegality.
29. For this, it may be appropriate to commence our analysis of the
evidence of the complaint filed by Santosh (PW-6) which triggered the
criminal process and his testimony in the court in which he resiled
from his previous incriminating statement made against the appellants
under Section 161 CrPC as well as the FIR.
30. Though the FIR is not a piece of substantive evidence,
especially, when the Complainant, i.e., PW-6 did not fully support the
contents of the FIR, yet, it cannot be totally ignored and is to be
treated as a relevant circumstance if the same is proved by other
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prosecution witness, in this case by PW-14, the SHO who recorded the
report in the form of FIR as stated to him by the complainant.
In this regard, we may profitably refer to the decision of this
Court in Bable v. State of Chhattisgarh, (2012) 11 SCC 181 wherein
it was observed as follows:
“14. 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. P-
1, has duly been proved by the statement of PW 10, Sub-Inspector,
Suresh Bhagat. According to him, he had registered the FIR upon
the statement of PW 1 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 the 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 PW 1 had turned hostile,
it cannot be said that the FIR would lose all its relevancy and
cannot be looked into for any purpose.”
31. In the present case, PW-14, Ram Krishna Dubey who was the
SHO of the Police Station, Newra at the relevant time testified that on
23.09.2001 he registered the FIR No. 125 of 2001 under Section 307
IPC against the three accused persons at 7:30 am on oral information
of the informant Santosh Mandley (PW-6), and proved the FIR (Ex-
P/12) and his signature and the signature of the informant PW-6 which
was marked as ‘A’ to ‘A’ on Ex P/12. Therefore, we have no reason to
doubt the filing of the FIR which stands proved by the evidence of
PW-14, the SHO.
32. It is to be noted that the informant PW-6 in his testimony did
not deny the filing of the FIR, though denied having mentioned the
names of the accused in the FIR during his testimony. Under the
Page 16 of 62
circumstances, it must be considered as to how far his denial can be
believed contrary to his complaint and his previous statement made
under Section 161 CrPC.
33. For better appreciation, the relevant portions of the FIR
registered based on the statement of Santosh, PW-6 are reproduced
below:
“I am residing near to the house of Shatrughna Sharma at
Shikshak Colony and work as a dishwasher in their house. It is
about an incident that has occurred on 23.9.01 at about 7 A.M. As
usual, when I was clearing and washing the household utensils,
from outside the house I could hear the shouts “Rescue me, Rescue
me” and on alerted as such, I came out of the house from my work
spot and saw that Suraj was being assaulted by Govardhan,
Rajendra and their father Chintaram Sahu by using Pipe, Tangia
etc. due to which Suraj’s body was drenched in blood. Govardhan
hit with Tangia whereas Rajendra hit Suraj’s with pipe and
Chintaram Sahu was kicking and giving first blows to Suraj and
were instigating the other assaulters to beat Suraj to death by·
abusing him meanwhile by calling the victim as “harlot’s son”.
Immediately I informed Suraj’s parents about the said incident by
alerting them. Guru, Bhau’s mother, and neighbouring residents
have also witnessed the said incident. At 11 P.M. on the previous
night, Suraj visited the house of Chintaram Sahu for asking him
some Ganja Seeds where they had a quarrel there too when
Chintaram has asked him why he visited his house for procuring
Ganja. In the attack upon· Suraj that has occurred in the morning
Suraj suffered serious injuries on head, both his hands, on the eyes
which bleed too, thereby Suraj has become unconscious after
which I am reporting this matter to you and request you to take
necessary proceeding further.”
34. From the aforesaid Complaint/FIR, it can be inferred that the
informant who was examined by the prosecution as PW-6 would be an
eyewitness. However, during the trial, he resiled from his narration
and turned hostile by not mentioning the names of any of the three
accused in his testimony though he had specified them as the
assailants in the FIR.
Page 17 of 62
35. Since PW-6, who was declared hostile is vital to understanding
of the real picture that unfolded before the trial court, it may be
appropriate to reproduce the relevant portions of the same as per
records as follows:
“ 1. I know all the three members of the accused party present
before me in this Court. Of them, one person’s name is known to
me as Chintaram and the other two are his sons, but I don’t know
their names .. I am not literate. I am staying in the house of
Shatrughna Sharma _since past 2 -.2.5 years. I know Suraj, he is
1 – 2 years elder to me. It’s about an incident that occurred before
about three months back. It was about 7 A.M. on that day. I was
engaged in dish washing at that time. In that particular house
where I was washing the dishes at the relevant house of which the
residents are ‘papa’ Shatrughna Sharma, ‘mummy’ Lata
Sharma,’sister’ Anju Sharma. When I was thus engaged in washing
dishes of the said hold, these residents of the said house were
sleeping. It that time, suddenly I heard the shouts “Rescue me,
Rescue me”, I thought that Suraj is calling from outside and went
outside, but could not see anybody present there, but Suraj was
only lying on the ground flat. Then I went near him and saw that
he was lying there unconscious. His temple and back portion of the
head had injuries and blood was even scattered on the ground.
2. It is correct to say that I have reported the matter in the Police
Station and got it recorded in writing there. The report got dictated
by me is marked Ex. P-12. On the said report my signature is ‘A to
A’. The incident narrated to the police was told to them as seen by
me. The police too recorded my statement. Although I am not a
literate, but I know to write my signature. Whatever I knew, I have
informed the same to the police.”
(emphasis
added)Because of the aforesaid discrepant testimony before the trial
court where he omitted to mention the presence of any of the
accused/appellants as the assailants, PW-6 was declared hostile by the
Prosecution.
Page 18 of 62
36. We will also reproduce the remaining part of the testimony of
PW-6 in the course of the cross-examination as recorded which will
indicate the nature of his evidence which are as follows:
“In the ‘B to B’ part of my police report Ex. P-12 I have not told
them “I came out and saw ………. Killed him”. I have also dictated
the police in my said report that the said incidence has also been
witnessed by Bhuru Bai’s mother and neighborhood residents. In
my Police Station I have not said that in the night at 11 o’clock
Suraj went to the house of Chintaram to ask for ganja seeds
regarding which Chintaram came to the house of Suraj and
indulged in a brawl with him. But if in Ex. P-12, if it has not been
mentioned the ‘C to C’ portion – “In the night, Suraj ……….. why
went to ask Ganja” has not been said to the police, but I do not
know the reason for the police mentioning as such in Ex. P-12.
4. In my police report, I have not told them that when went out of
the house I saw Suraj was being beaten by the accused party
members with pipe, tangiya. Ex. P-8 map too contains my
signature. I have showed the place where Suraj was found lying to
the Patwari. It is correct to say that on either sides of the road
houses exist in Shikshak Colony.
5. It is correct to say that the houses of Shatrughan Sharma, Ram
Kumar Sahu, Govardhan Sahu, Ramesh Kumar Varma and
Pramila Pandey exist adjoining each other. It is· also correct to
say that all these houses exist within a circumference of 30 – 40
foot. The distance between the place where I was washing the
dishes and where the victim Suraj fell down was approximately 30
– 35 feet. It is also correct to say that if one shouts from the very
spot where Suraj’s body was lying, the ‘call’ can be heard at the
house of Shatrughan Sharma. After I started shouting, the
neighbors woke-up.
6. In my Police station Ex. P-12, how police could write about the
assault related matter of Suraj is not known to me or I do not even
know the reason why they have written as such. On being
persuaded the police, I put my signature· on ‘A to A’ part of Ex. P-
12. I am not a literate, but still able to put my own signature. It is
wrong to say that whatever I narrated to the police have been
recorded by them as it is. I have not informed the police that the
accused party members have assaulted Suraj. I can’t give any
reason for the action of the Police who wrote like that on this own
in Ex. P-12 as I do not know to read what they have written in it
except putting my own signature. A copy of my report has not been
issued to me by -the Police. The police have also not read over thePage 19 of 62
contents of my report back to me. I have not come to know only
later that the brawl of Suraj occurred with the accused party
members due to hearsay discussions going in our village. The
accused party members too stay at a very short distance from the
house of Shatrughan Sharma. The accused Chintaram never came
to or visited the house of Shatrughan Sharma for Ganja usage. Not
even to Suraj too.
8. It. is wrong to say that in order to protect the accused persons, I
am not deposing correctly before the Court.
(emphasis
added)
37. From the above, the following important aspects of the evidence
of PW-6 emerge :
(a) In paragraph no. 2 of his evidence in the cross examination PW-
6 categorically states that, it is correct to say that he had reported the
matter at the Police Station and got it recorded in writing there and
also proved it which was marked as Ex. P/12 (FIR). He admitted the
signature on Ex P/12 as his and he also testified that the incident was
narrated to the police as seen by him. He also states that it was
mentioned in the report that the incident was seen by Bhuri Bai and
other passers-by. Thus, filing of the FIR by PW-6 is proved, though
there is some controversy about its actual contents.
(b) It may be also noted that when asked, PW-6 merely states that
he cannot tell the reason as to how the statement in respect of causing
of assault to Suraj was recorded by the police in his statement in Ex
P/12 and states that he had not stated the fact of assault by the
appellants. From this, it is clear that he did not allege any coercion or
threat meted out by the police to him to implicate the appellants
falsely by naming them in the FIR, as alleged by some other witness
(PW-2). Shailu, PW-2 who was produced by the Prosecution as a
Page 20 of 62
seizure memo witness to Ex-P/3 had claimed that the police obtained
his signature by threatening him. As far as putting his signature on the
FIR is concerned, he states that he was persuaded to do so. Thus, there
can be no inference of wrongdoing or coercion by the police, if the
police asked him to put his signature on the complaint, as the
complainant is required to put the signature if present in the police
station. After all it is not a statement recorded under Section 161
CrPC which does not require signature to be put, but the first
information report is expected to be signed by the informant.
(c) PW-6 also states that if anyone shouts from the very spot where
Suraj’s body was lying, the ‘call’ can be heard at the house of
Shatrughan Sharma and as he shouted, on the day of the incident, the
neighbours woke up. This indicates that when the incident happened,
people were alerted. Hence, it was very natural for the mother of the
victim, Lata Bai (PW-10) who was already in the house, being alerted
and to witness the incident.
(d) PW-6 also stated that he came to know only later that a brawl
occurred between Suraj and the accused party due to hearsay
discussions going on in the village. He admitted that the accused
persons were staying at a very short distance from the house of the
deceased. Even if it is assumed that he did not know the identity of
the assailants and came to know from the talk in the village about the
involvement of the accused, the fact that there was no talk of
involvement of others who were not the appellants assumes
significance. The fact that there was no discussion of involvement of
persons other than the appellants speaks volumes about what had
Page 21 of 62
happened. Further, no defence witness was produced from the village
about the absence of the accused from the village on the fateful day or
their non involvement in the incident. There was no witness
categorically stating that the accused persons were not the assailants.
The non official prosecution witnesses merely feigned ignorance of
this incident. We are, however, not suggesting that merely because no
one came forward to testify in defence of the accused, it should go
against them, inasmuch as the onus is always on the prosecution to
prove the charge and not the other way round. However, this is a
circumstance which does not diminish the credibility of the eyewitness
account of Lata Bai (PW-10) or prejudices the prosecution case.
(e) Thus, in our view, during the cross-examination, even if the
PW-6 had denied mentioning the names of the appellants to the police,
it will be difficult to believe that he did not mention their names to the
police when he himself stated that he informed the police what he saw
and the police recorded the same in the FIR. We find it hard to believe
that the police somehow wrote the names of the appellants in the FIR
on their own within such a short period of the occurrence by falsely
implicating the appellants. The incident happened at about 7 am as
mentioned in the FIR and the complaint was lodged at 7:30 am within
half an hour of the incident on the basis of which the FIR was
registered. Apparently, there was also a talk in the village of the
assault by the appellants as also stated by PW-6.
38. From the above discussion, we have no reason to question the
reliance placed on the FIR (Ex-P/12) by the trial court as well as the
High Court as corroborating the prosecution case.
Page 22 of 62
39. As discussed above, since the complainant (PW-6) who filed the
FIR was initially projected as the eye witness but later turned hostile
during the trial and it is only Lata Bai (PW-10) who claims to be the
eye witness, it would be necessary to examine the evidence of Lata
Bai (PW-10), as the prosecution case and the conviction by the
Sessions Court and High Court are primarily based on her account.
40. PW-10, Lata Bai is the mother of the deceased who was an eye
witness as per the Prosecution. If it is established that this eye-witness
testimony is credible and is corroborated by the other evidence on
record as held by the trial court as well as the High Court, the
conviction of the appellants cannot be said to be illegal and would not
warrant interference from this Court. On the other hand, if her
evidence is found to be not credible and not reliable as contended on
behalf of the appellants, they would certainly be entitled to the benefit
of doubt and would warrant reversing the decision of the courts below.
Therefore, it is necessary to examine the evidence of the PW 10 in
more detail.
41. PW-10, Lata Bai deposed to have witnessed the three accused
including the present appellants assaulting the deceased, her son, on
the fateful day as narrated below:
“I recognize all the three accused present in the court. Name of
old man is Chintaram and the name of two sons are Govardhan
and Raju. Accused persons reside at some distance from my house.
Suraj was my son, he was running small shop from the house. It
was incident of Sunday at 7:00 O’clock in the morning on 23
September. I was standing near the door with broom and my
husband Shatrughan Sharma and daughter Anju Sharma were
sleeping. My servant Santosh was cleaning utensil near the door of
house. Santosh and Suraj went outside for excretion and come
back from there. Suraj asked me to get the tea ready, he said that I
am coming from Verma’s house. After 5 minute son of Verma camePage 23 of 62
to me in my house and told that brother Suraj is sitting with father
and has demanded Chilam, then the boy take Chilam and went
away. After some time the same boy come to return the Chilam.
Then after 10 minutes heard the voice of Suraj calling ‘papa’. My
servant Santosh went outside the house and came inwards in a
disturbed way and stated that they killed brother Suraj. I
immediately came out with broom, Govardhan, Chinta and Raju,
all three were causing attack over my son. Chintaram was armed
with Pipe one accused was armed with small Axe and one with
Adze. All three were assaulting Suraj and he was lying on earth. I
went inside the house calling my husband. I got awaken my
husband by pulling his hand that they had killed Suraj. When I and
my husband reached near Suraj then all three accused person fled
away after assaulting him. All three accused were saying “kill-
kill”.
42. She also stated that she used to visit the house of the appellants
quite frequently but was not aware of occurrence of any fight
involving her husband or her son with the appellants. She also stated
that her husband was already scared as soon as he went out and he told
her to go to the police station and accordingly, she went to the police
station. In the meantime, the appellants Rajendra and Govardhan too
came to the police station and on seeing them she informed the police
that these two persons had killed her son and these two also informed
the police that they had come there after killing Suraj. Then the police
detained both of them at the police station. Thereafter, the police
accompanied her back to the Shikshak Colony, and with the assistance
of police, she immediately took her injured son to the Government
Hospital, Tilda on a rickshaw where he was given treatment and later
was advised to be taken to Specialist Hospital at Mekahari.
43. She also deposed that when Suraj shouted for help, she came
out and saw that many of her neighbours were already present at the
place of the incident namely Verma, Shyam Bai, Bhoori, Bhau,
Govardhan alias Bhuru, Neelu, Kumari etc. and it was Verma (PW-9)
Page 24 of 62
who advised her to take her injured son immediately to the hospital.
She then narrated how she took Suraj to the Government Hospital and
then to the MMI Hospital for his treatment and she was present
throughout the treatment till he expired. She was also present during
the preparation of panchnama of the dead body.
44. Since Lata Bai (PW-10) testified as the eye witness to the
assault and had given a detailed account of the incident, she was
subjected to a lengthy cross-examination by the defence to discredit
her evidence. It is therefore, of utmost importance that her evidence be
analysed minutely to ascertain whether the same is credible and
trustworthy, which the defence has strenuously sought to project as
such.
45. A sustained endeavour was made by the defence counsel to
establish that the deceased son of the PW-10 had a criminal
background having been involved in numerous acts of brawls and
hooliganism because of which he earned the enmity of many, thus
suggesting that he could be a victim of retaliation or vengeance of his
other enemies but not of the appellants.
46. During the cross examination of PW-10, by way of suggestion
there was a specific insinuation that the deceased had a quarrel with
another neighbour, Verma (PW-9) the previous day and it was Verma’s
family who had assaulted the deceased near the house of Verma. We
shall refer to the testimony of the said Verma (PW-9) at a later stage.
47. The following aspects of the statement of the PW-10 during the
cross-examination, deserve to be noticed.
Page 25 of 62
(i) When asked whether the neighbours too had heard her son’s
distress call, she stated,
“I am also not sure whether they have heard the
instigational calls of Chintaram who said “Beat him! Kill
him” as my attention was upon son who was getting
beaten at the relevant time I could not make any other
observation in the surrounding keenly. I rushed out, saw
him, then again rushed back inside and woke my
husband, when any son was being beaten when I saw him,
he has already fallen on the ground with his face too
facing the ground.
(ii) She mentioned about the delayed response of her husband to
the incident and her anger at her husband for not responding
promptly on her urging to come out and abusing him as a
“dog”.
(iii) She stated that she had also gone to the police station and
informed that the accused Goverdhan and Rajendra had
assaulted her son and when they came to the Police Station,
she slapped one of them in the police station.
(iv) She also stated that she did not inform the police that the
accused party held weapons such as pipe, basoola and tangia
as the police did not give any opportunity to tell all these nor
did they enquire from her. She also states that police did not
make a formal enquiry from her as she was in a state of
shock.
(v) Interestingly, when a suggestion was made on behalf of the
appellants during the cross-examination that police told her in
the police station when she went to inform them that the
report will be recorded later and they should visit to spot first,
she admitted it to be correct.
Page 26 of 62
(vi) She reiterates that she had seen with her own eyes the
appellants fleeing away from the spot after assaulting Suraj.
(vii) She admits to have met and talked to Vaishnav, ASI (PW-15)
outside the courtroom but denied her being pressured by him
to give a statement as per their dictation that she did not see
anybody assaulting Suraj.
48. The grounds for questioning the credibility and reliability of the
evidence of the Lata Bai, PW-10 by the appellants may be stated
below: –
(a) Her statement was recorded very belatedly after 5 days on
28.09.2001 after the incident which occurred on 23.09.2001
giving scope for fabrication.
(b) There are material contradictions in the statements made
before the police and the court.
(c) There are improvements, and embellishments in her
testimony before the court over the statement, recorded
during the investigation.
(d) Her presence at the place of occurrence is doubtful as she is
an interested witness who is not supported even by her own
husband (PW5) who was staying with her at the time of the
incident.
(e) Her testimony is contradictory to the testimony of her
husband who also was present in the house when the incident
occurred, who apparently did not see the appellants assaulting
their son.
Page 27 of 62
(f) The name of Lata Bai was not mentioned as an eye-witness in
the complaint/FIR, which would indicate that she was not an
eyewitness.
49. It goes without saying that to be an eyewitness, the witness
must have been at the place of occurrence or in the vicinity within the
range of visibility when the incident occurred.
50. If we critically examine the other evidence on record, it cannot
be said that Lata Bai (PW-10) did not see the incident.
For this, we will first refer to the evidence of Santosh (PW-6). Even
though Santosh (PW-6) had claimed during his court testimony that he
did not see who the assailants were, yet, in the cross-examination he
specifically stated that it is true that the information of the incident
was given immediately by him to the mother (PW-10) and father (PW-
5) of Suraj. Therefore, the presence of Lata Bai near the place of
occurrence cannot be doubted. It is to be noted that in the site map of
the place of occurrence (Ex/16) it is mentioned that the body of the
victim was found very near about 21ft on the lane opposite the house
of the deceased. Thus, it cannot be said that it was impossible on her
part to have witnessed the incident. PW-10 is not a chance witness but
a natural witness. She did not suddenly appear at the place of
occurrence where she was not expected to be present.
If the presence of Lata Bai (PW-10) at the place of occurrence cannot
be doubted, the next consideration will be whether she had witnessed
the incident when the appellants assaulted Suraj.
Therefore, the critical question is whether Lata Bai PW-10 saw the
incident as claimed by her which has been questioned by the
appellants.
Page 28 of 62
51. As we proceed to examine this crucial aspect, it may be
apposite to keep in mind certain observations made by this Court
relating to discrepancies in the account of eye witnesses.
In Leela Ram (Dead) through Duli Chand v. State of Haryana,
(1999) 9 SCC 525 it was observed as follows:
“9. Be it noted that the High Court is within its jurisdiction being
the first appellate court to reappraise the evidence, but the
discrepancies found in the ocular account of two witnesses unless
they are so vital, cannot affect the credibility of the evidence of the
witnesses. There are bound to be some discrepancies between the
narrations of different witnesses when they speak on details, and
unless the contradictions are of a material dimension, the same
should not be used to jettison the evidence in its entirety.
Incidentally, corroboration of evidence with mathematical niceties
cannot be expected in criminal cases. Minor embellishment, there
may be, but variations by reason therefore should not render the
evidence of eyewitnesses unbelievable. Trivial discrepancies ought
not to obliterate an otherwise acceptable evidence. In this context,
reference may be made to the decision of this Court in State of
U.P. v. M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105].
In para 10 of the Report, this Court observed : (SCC pp. 514-15)‘10. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness
read as a whole appears to have a ring of truth. Once
that impression is formed, it is undoubtedly necessary
for the court to scrutinise the evidence more
particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the evidence
as a whole and evaluate them to find out whether it is
against the general tenor of the evidence given by the
witness and whether the earlier evaluation of the
evidence is shaken as to render it unworthy of belief.
Minor discrepancies on trivial matters not touching
the core of the case, hypertechnical approach by
taking sentences torn out of context here or there from
the evidence, attaching importance to some technical
error committed by the investigating officer not going
to the root of the matter would not ordinarily permit
rejection of the evidence as a whole. If the court before
whom the witness gives evidence had the opportunity
to form the opinion about the general tenor of evidence
given by the witness, the appellate court which had not
this benefit will have to attach due weight to the
appreciation of evidence by the trial court and unlessPage 29 of 62
there are reasons weighty and formidable it would not
be proper to reject the evidence on the ground of minor
variations or infirmities in the matter of trivial details.
Even honest and truthful witnesses may differ in some
details unrelated to the main incident because power
of observation, retention and reproduction differ with
individuals.’
10. In a very recent decision in Rammi v. State of M.P. [(1999) 8
SCC 649 : 2000 SCC (Cri) 26] this Court observed : (SCC p. 656,
para 24)
‘24. When an eyewitness is examined at length it is quite possible
for him to make some discrepancies. No true witness can possibly
escape from making some discrepant details. Perhaps an untrue
witness who is well tutored can successfully make his testimony
totally non-discrepant. But courts should bear in mind that it is
only when discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that the court is
justified in jettisoning his evidence. But too serious a view to be
adopted on mere variations falling in the narration of an incident
(either as between the evidence of two witnesses or as between two
statements of the same witness) is an unrealistic approach for
judicial scrutiny.’This Court further observed : (SCC pp. 656-57, paras 25-27)
‘25. It is a common practice in trial courts to make out
contradictions from the previous statement of a witness
for confronting him during cross-examination. Merely
because there is inconsistency in evidence it is not
sufficient to impair the credit of the witness. No doubt
Section 155 of the Evidence Act provides scope for
impeaching the credit of a witness by proof of an
inconsistent former statement. But a reading of the
section would indicate that all inconsistent statements
are not sufficient to impeach the credit of the witness.
The material portion of the section is extracted below:
“155.Impeaching credit of witness.—The credit of a witness may
be impeached in the following ways by the adverse party, or, with
the consent of the court, by the party who calls him—
(1)-(2) ***
(3) by proof of former statements inconsistent with any part of his
evidence which is liable to be contradicted;”
26. A former statement though seemingly inconsistent with the
evidence need not necessarily be sufficient to amount to
contradiction. Only such of the inconsistent statement which is
liable to be “contradicted” would affect the credit of the witness.
Page 30 of 62
Section 145 of the Evidence Act also enables the cross-examiner to
use any former statement of the witness, but it cautions that if it is
intended to “contradict” the witness the cross-examiner is
enjoined to comply with the formality prescribed therein. Section
162 of the Code also permits the cross-examiner to use the
previous statement of the witness (recorded under Section 161 of
the Code) for the only limited purpose i.e. to “contradict” the
witness.
27. To contradict a witness, therefore, must be to discredit the
particular version of the witness. Unless the former statement has
the potency to discredit the present statement, even if the latter is
at variance with the former to some extent it would not be helpful
to contradict that witness (vide Tahsildar Singh v. State of U.P.
[AIR 1959 SC 1012 : 1959 Cri LJ 1231] ).’”
52. Further, this Court also cautioned about attaching too much
importance on minor discrepancies of the evidence of the witnesses in
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC
217 as follows:
“5. … We do not consider it appropriate or permissible to enter
upon a reappraisal or reappreciation of the evidence in the context
of the minor discrepancies painstakingly highlighted by the
learned counsel for the appellant. Overmuch importance cannot
be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an
incident. It is not as if a video tape is replayed on the mental
screen.
(2) Ordinarily it so happens that a witness is overtaken by
events. The witness could not have anticipated the
occurrence which so often has an element of surprise. The
mental faculties therefore cannot be expected to be attuned
to absorb the details.
(3) The powers of observation differ from person to person.
What one may notice, another may not. An object or
movement might emboss its image on one person’s mind,
whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a
conversation and reproduce the very words used by them or
heard by them. They can only recall the main purport of the
conversation. It is unrealistic to expect a witness to be a
human tape-recorder.
Page 31 of 62
(5) In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their
estimates by guess work on the spur of the moment at the
time of interrogation. And one cannot expect people to make
very precise or reliable estimates in such matters. Again, it
depends on the time-sense of individuals which varies from
person to person.
(6) Ordinarily a witness cannot be expected to recall
accurately the sequence of events which takes place in rapid
succession or in a short time span. A witness is liable to get
confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing cross-
examination made by the counsel and out of nervousness mix
up facts, get confused regarding sequence of events, or fill
up details from imagination on the spur of the moment. The
subconscious mind of the witness sometimes so operates on
account of the fear of looking foolish or being disbelieved
though the witness is giving a truthful and honest account of
the occurrence witnessed by him—perhaps it is a sort of a
psychological defence mechanism activated on the spur of
the moment.”
53. To the same effect it was also observed in Appabhai v. State of
Gujarat (1988) Supp SCC 241 as follows:
“13. … The court while appreciating the evidence must not attach
undue importance to minor discrepancies. The discrepancies
which do not shake the basic version of the prosecution case may
be discarded. The discrepancies which are due to normal errors of
perception or observation should not be given importance. The
errors due to lapse of memory may be given due allowance. The
court by calling into aid its vast experience of men and matters in
different cases must evaluate the entire material on record by
excluding the exaggerated version given by any witness. When a
doubt arises in respect of certain facts alleged by such witness, the
proper course is to ignore that fact only unless it goes into the root
of the matter so as to demolish the entire prosecution story. The
witnesses nowadays go on adding embellishments to their version
perhaps for the fear of their testimony being rejected by the court.
The courts, however, should not disbelieve the evidence of such
witnesses altogether if they are otherwise trustworthy.
Jaganmohan Reddy, J. speaking for this Court in Sohrab v. State
of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819] observed :
[SCC p. 756, para 8 : SCC (Cri) p. 824, para 8]
‘8. … This Court has held that falsus in uno, falsus in
omnibus is not a sound rule for the reason that hardly onePage 32 of 62
comes across a witness whose evidence does not contain
a grain of untruth or at any rate exaggeration,
embroideries or embellishments. In most cases, the
witnesses when asked about details venture to give some
answer, not necessarily true or relevant for fear that their
evidence may not be accepted in respect of the main
incident which they have witnessed but that is not to say
that their evidence as to the salient features of the case
after cautious scrutiny cannot be considered….’”
54. We must also remember that the scene of the crime was in a
rural area and the witness being rustic, their evidence has to be
appreciated in the light of the behavioral pattern in the rural
environment. In this regard, we may refer to the decision of this Court
in Shivaji Sahebrao Bobade v. State of Maharashtra, (supra)
wherein it was held that:
“8. Now to the facts. The scene of murder is rural, the witnesses to
the case are rustics and so their behavioural pattern and
perceptive habits have to be judged as such. The too sophisticated
approaches familiar in courts based on unreal assumptions about
human conduct cannot obviously be applied to those given to the
lethargic ways of our villages. When scanning the evidence of the
various witnesses we have to inform ourselves that variances on
the fringes, discrepancies in details, contradictions in narrations
and embellishments in inessential parts cannot militate against the
veracity of the core of the testimony provided there is the impress
of truth and conformity to probability in the substantial fabric of
testimony delivered. The learned Sessions Judge has at some
length dissected the evidence, spun out contradictions and
unnatural conduct, and tested with precision the time and
sequence of the events connected with the crime, all on the
touchstone of the medical evidence and the post-mortem
certificate. Certainly, the court which has seen the witnesses
depose, has a great advantage over the appellate Judge who reads
the recorded evidence in cold print, and regard must be had to this
advantage enjoyed by the trial Judge of observing the demeanour
and delivery, of reading the straightforwardness and doubtful
candour, rustic naiveté and clever equivocation, manipulated
conformity and ingenious inveracity of persons who swear to the
facts before him. Nevertheless, where a Judge draws his
conclusions not so much on the directness or dubiety of the witness
while on oath but upon general probabilities and on expert
evidence, the court of appeal is in as good a position to assess orPage 33 of 62
arrive at legitimate conclusions as the court of first instance. Nor
can we make a fetish of the trial Judge’s psychic insight.”
55. This Court also reminded that while dealing with the evidence
of witnesses who are rustic, because of minor inconsistencies, the
evidence should not be ignored. It was held in in Prabhu Dayal v.
State of Rajasthan, (2018) 8 SCC 127 wherein dealing with witnesses
from rustic background it was observed as follows;
“18. It is a common phenomenon that the witnesses are rustic and
can develop a tendency to exaggerate. This, however, does not
mean that the entire testimony of such witnesses is falsehood.
Minor contradictions in the testimony of the witnesses are not fatal
to the case of the prosecution. This Court, in State of U.P. v. M.K.
Anthony [State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 : 1985
SCC (Cri) 105], held that inconsistencies and discrepancies alone
do not merit the rejection of the evidence as a whole. It stated as
follows : (SCC p. 514-15, para 10)
“10. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness read
as a whole appears to have a ring of truth. Once that
impression is formed, it is undoubtedly necessary for the
court to scrutinise the evidence more particularly keeping in
view the deficiencies, drawbacks and infirmities pointed out
in the evidence as a whole and evaluate them to find out
whether it is against the general tenor of the evidence given
by the witness and whether the earlier evaluation of the
evidence is shaken as to render it unworthy of belief. Minor
discrepancies on trivial matters not touching the core of the
case, hyper-technical approach by taking sentences torn out
of context here or there from the evidence, attaching
importance to some technical error committed by the
investigating officer not going to the root of the matter
would not ordinarily permit rejection of the evidence as a
whole. If the court before whom the witness gives evidence
had the opportunity to form the opinion about the general
tenor of evidence given by the witness, the appellate court
which had not this benefit will have to attach due weight to
the appreciation of evidence by the trial court and unless
there are reasons weighty and formidable it would not be
proper to reject the evidence on the ground of minor
variations or infirmities in the matter of trivial details. Even
honest and truthful witnesses may differ in some details
unrelated to the main incident because power of observation,
retention and reproduction differ with individuals. Cross-
Page 34 of 62
examination is an unequal duel between a rustic and refined
lawyer. Having examined the evidence of this witness, a
friend and well-wisher of the family carefully giving due
weight to the comments made by the learned counsel for the
respondent and the reasons assigned to by the High Court
for rejecting his evidence simultaneously keeping in view the
appreciation of the evidence of this witness by the trial court,
we have no hesitation in holding that the High Court was in
error in rejecting the testimony of witness Nair whose
evidence appears to us trustworthy and credible.”
(emphasis supplied)
19. …………………….
20. The Court can separate the truth from the false statements in
the witnesses’ testimony. In Leela Ram v. State of Haryana [Leela
Ram v. State of Haryana, (1999) 9 SCC 525 : 2000 SCC (Cri) 222]
, this Court held as follows : (SCC p. 534, para 12)
“12. It is indeed necessary to note that one hardly comes across a
witness whose evidence does not contain some exaggeration or
embellishment — sometimes there could even be a deliberate
attempt to offer embellishment and sometimes in their overanxiety
they may give a slightly exaggerated account. The court can sift
the chaff from the grain and find out the truth from the testimony
of the witnesses. Total repulsion of the evidence is unnecessary.
The evidence is to be considered from the point of view of
trustworthiness. If this element is satisfied, it ought to inspire
confidence in the mind of the court to accept the stated evidence
though not however in the absence of the same.”
21. Moreover, it is not necessary that the entire testimony of a
witness be disregarded because one portion of such testimony is
false. This Court observed thus in Gangadhar Behera v. State of
Orissa [Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381 :
2003 SCC (Cri) 32] : (SCC p. 392, para 15)
“15. To the same effect is the decision in State of Punjab v. Jagir
Singh [State of Punjab v. Jagir Singh, (1974) 3 SCC 277 : 1973
SCC (Cri) 886 : AIR 1973 SC 2407] and Lehna v. State of
Haryana [Lehna v. State of Haryana, (2002) 3 SCC 76 : 2002 SCC
(Cri) 526] . Stress was laid by the appellant-accused on the non-
acceptance of evidence tendered by some witnesses to contend
about desirability to throw out the entire prosecution case. In
essence prayer is to apply the principle of falsus in uno, falsus in
omnibus (false in one thing, false in everything). This plea is
clearly untenable. Even if a major portion of the evidence is found
to be deficient, in case residue is sufficient to prove guilt of an
accused, notwithstanding acquittal of a number of other co-
accused persons, his conviction can be maintained. It is the duty of
the court to separate the grain from the chaff. Where chaff can be
separated from the grain, it would be open to the court to convict
Page 35 of 62
an accused notwithstanding the fact that evidence has been found
to be deficient to prove guilt of other accused persons. Falsity of a
particular material witness or material particular would not ruin
it from the beginning to end. The maxim falsus in uno, falsus in
omnibus has no application in India and the witnesses cannot be
branded as liars. The maxim falsus in uno, falsus in omnibus has
not received general acceptance nor has this maxim come to
occupy the status of rule of law. It is merely a rule of caution. All
that it amounts to, is that in such cases testimony may be
disregarded, and not that it must be disregarded.”
56. Keeping the aforesaid observations of this Court in mind, we
will examine the evidence of the mother of the deceased, Lata Bai,
PW-10. The High Court had meticulously examined the evidence of
PW-10 before coming to the conclusion that her evidence is reliable
and credible.
57. Much emphasis was laid on the plea of delayed recording of the
statement of PW-10 by the defence, which was duly considered by the
High Court. The High Court observed that the Investigating Officer
(IO) was not questioned as to why there was a delay in the
examination of the witness, failing which the defence cannot gain any
advantage therefrom.
In this regard, we may refer to the decision of this Court in the State
of U.P. v. Satish, (supra), wherein it was held that,
“18. As regards delayed examination of certain witnesses, this
Court in several decisions has held that unless the investigating
officer is categorically asked as to why there was delay in
examination of the witnesses the defence cannot gain any
advantage therefrom. It cannot be laid down as a rule of universal
application that if there is any delay in examination of a particular
witness the prosecution version becomes suspect. It would depend
upon several factors. If the explanation offered for the delayed
examination is plausible and acceptable and the court accepts the
same as plausible, there is no reason to interfere with the
conclusion. (See Ranbir v. State of Punjab [(1973) 2 SCC 444 :
1973 SCC (Cri) 858 : AIR 1973 SC 1409] , Bodhraj v. State of
J&K [(2002) 8 SCC 45 : 2003 SCC (Cri) 201] and Banti v. State
of M.P. [(2004) 1 SCC 414 : 2004 SCC (Cri) 294] )Page 36 of 62
19. ……………………………………..
20. It is to be noted that the explanation when offered by the IO on
being questioned on the aspect of delayed examination by the
accused hhas to be tested by the court on the touchstone of
credibility. If the explanation is plausible then no adverse
inference can be drawn. On the other hand, if the explanation is
found to be implausible, certainly the court can consider it to be
one of the factors to affect credibility of the witnesses who were
examined belatedly. It may not have any effect on the credibility of
the prosecution’s evidence tendered by the other witnesses.”
58. In the present case, we have also noted that, no such question
was asked by the defence from the IO about the delayed recording of
the statement of PW-10. The witness was also not asked about it,
which would have afforded an opportunity to the witness to explain
the reason for such a delayed recording of her evidence. Hence, such a
plea could not be taken now to discredit PW-10.
Moreover, what we have noticed, as also observed by the High Court
is that PW-10 being the mother and on seeing the serious condition of
her injured son was more concerned about his well-being and survival
and rushed to the Police Station for informing the police about the
incident, and thereafter, she immediately went to the government
hospital taking her injured son and thereafter to other specialist
hospitals for treatment. She was throughout with the injured son for
his treatment till he succumbed to the injuries. Thus, she was busy in
getting proper treatment of her injured son and was not in the village
till she returned after the death of her son and she was present also
when the post-mortem examination was conducted. Therefore, if PW-
10 was preoccupied with the treatment of her son soon after the
incident and her statement under Section 161 CrPC could not be
recorded earlier, it could not render her evidence untrustworthy, more
Page 37 of 62
so when her presence in the house when the incident occurred was
proved by the evidence of PW-6, the informant, who is not a member
of the family of the deceased.
59. PW-10 claimed that she had rushed to the Police Station to
inform about the incident and the police told her that they would go to
the place of occurrence first and would later record her evidence. That
she went to the Police Station is also supported by the evidence of her
husband (PW-5), who testified that after he and his wife (PW-10)
came out of the house and saw their injured son, he immediately sent
his wife to the police station. It may be also noted that the defence did
not cross examine PW-5 at all including on this aspect, perhaps in
view of his non mentioning the names of the accused as assailants,
because of which he was declared a hostile witness by the court at the
instance of the Prosecution.
As mentioned above, PW-10 agreed to the suggestion made on
behalf of the appellants during the cross-examination that police told
her in the police station when she went to inform them that the report
will be recorded later and they should visit to spot first. Her response
was in the following words:
“It is true to say that police person asked me that your report
will be recorded later, let’s visit the spot first.”This suggestion from the defence neutralises the very plea of the
defence on the issue of delay in recording the statement of PW-10.
This is also natural for the reason that since PW-10, the mother was in
a state of shock and was more interested in the treatment of her son, if
the police did not record the statement of PW-10 at that time, it could
not be said to be abnormal. We are of the view that under thePage 38 of 62
circumstances, the delay in recording the statement of PW-10 under
Section 161 CrPC can not be said to be a deliberate act on the part of
the Investigating Officer to manipulate or fabricate evidence to falsely
implicate innocent persons. Accordingly, we are of the view that the
decision in State of Orissa vs. Brahmanada Nanda (supra) relied
upon by the appellants is not applicable in the present case. In the said
case, the High Court as well as this Court did not find the evidence of
the sole eye witness trustworthy for not mentioning the name of the
accused for one and a half day and declined to accept her plea of fear
of the accused by not naming him as the police and her nephew had
already arrived at the scene and that the accused was not known to be
a gangster or a confirmed criminal of whom people would be afraid.
In the said case this Court also found that there were many other
reasons assigned by the High Court in not believing the evidence of
the said sole witness.
60. We have also considered the evidence of Shatrughan Sharma,
PW-5, the father of the deceased who denied having seen the
appellants assaulting his son on whose evidence, the defence has
harped much to contend that he being the father of the victim did not
support his wife’s evidence. He stated in the examination-in-chief that
on the fateful day when he was sleeping he was woken up by his wife,
Lata Bai (PW-10) informing that there was a quarrel outside the house
and when he came out he saw blood spread everywhere and his son
drenched in blood and he then immediately sent his wife to the police
station. He also saw some other neighbours standing near the body of
his son. During the cross examination he denied having mentioned the
Page 39 of 62
names of the appellants in his statement recorded under Section 161
CrPC.
61. What is to be noted is that his wife Lata Bai (PW-10) stated
that after seeing the assault of her son by the appellants, she went
inside the house and woke up her husband and came out pulling his
hands and when both of them reached the place of occurrence, all the
assailants had fled.
It may be also noted that PW-10 in the cross-examination stated that
after her husband was woken up, he rather than rush to the scene, was
looking for his shoes to which the PW-10 abused him calling him a
“dog” and only then he came out in his underwear. Thus, from this
statement of PW-10, it can be clearly inferred that PW-5 could not
have seen the assailants. Thus, there is no question of his testimony
being contrary to the evidence of PW-10, since PW-5 did not witness
the assault. Thus, the evidence of PW-5 does not contradict the
evidence of PW-10 and supports her on certain critical areas as
discussed above.
62. What we have also noted is that Shatrughan Sharma, PW-5 in
the cross examination clearly admits his close association with the
father of the appellants, Chintaram on account of smoking of ganja.
PW-5 admits that he used to consume ganja and liquor. He also stated
that he and Chintaram, the acquitted father of the appellants, were
regular smokers of ganja.
It may be also noted that in the cross-examination by the
Prosecution after PW-5 was declared a hostile witness, he stated (as
per the case court records) as follows:
Page 40 of 62
“ (8) …… It is true that I and Chintaram had smoked Ganja
several times together. It is true that I also came to the court
yesterday. It is true that I and Chintaram hugged each other. It is
also true that all the three accused obeisance my leg. ………….”Thus, in spite of denials to the suggestion that due to old
friendship he was not giving statements against accused persons, it is
apparent that he was won over, as otherwise, there was no reason for
the accused to be so warm to him and all the three accused pay
obeisance to him by touching his feet.
63. If we examine the evidence of PW-10 in the light of other
evidence brought on record and proved by the Prosecution, it can be
seen that the evidence of PW-10 stands corroborated and hence, we
have no reason to disbelieve the evidence of PW-10.
64. We have taken note of the fact that the High Court had noticed
that the victim Suraj was examined by Dr G.R. Agarwal (PW-1) on
23.9.2001 at about 8 a.m. which is about one hour after the assault
vide Ex.P/1 and in the said document, the names of the two appellants,
Goverdhan and Rajendra were mentioned as the ones who had
assaulted the victim by axe and iron pipe but the name of the third
accused Chintaram was not mentioned. Though mere mention of the
names of the two appellants in the said medical record may not be the
basis to implicate the two appellants, yet, it provides the circumstances
in which the victim came to be brought to the hospital and thus, lends
credence to the truthfulness of the contents of the FIR in which the
appellants were named as the assailants.
65. The noting made by the doctor on the medical record that the
appellants, Goverdhan and Rajendra were the ones who assaulted the
victims can partake the character of hearsay evidence, yet, this was
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recorded within about half an hour of the filing of the FIR in the police
station and within about one hour of incident and is directly related to
the incident. Though the medical report was not made immediately
after the incident, it was made without much time gap and it was made
almost contemporaneously with the incident. Further, the medical
record was in conformity with the FIR filed by the complainant, PW-
6, thus corroborating the contents of the FIR in which the appellants
were named as the assailants. In our opinion, since the FIR was filed
soon after the incident occurred and the names of the appellants were
again mentioned in the medical record as the assailants within a very
short span of time, there was hardly any scope for fabrication of
evidence and falsely implicating the appellants in the case, as they
were already named in the FIR. The matter would have been
otherwise, if the names of the appellants were not mentioned in the
FIR but subsequently mentioned in the medical record in which event,
a valid plea could be taken by the defence that it was an afterthought.
However, such is not the situation in the present case.
66. We must also keep in mind that in a trial, the assessment of
evidence cannot be made in a technical manner and the realities of
life must be kept in mind for arriving at the truth as observed by this
Court in State of H.P. v. Lekh Raj (2000) 1 SCC 247 as follows;
“10. The High Court appears to have adopted a technical
approach in disposing of the appeal filed by the respondents. This
Court in State of Punjab v. Jagir Singh [(1974) 3 SCC 277 : 1973
SCC (Cri) 886] held: (SCC pp. 285-86, para 23)
‘23. A criminal trial is not like a fairy tale wherein one is free to
give flight to one’s imagination and fantasy. It concerns itself with
the question as to whether the accused arraigned at the trial is
guilty of the crime with which he is charged. Crime is an event in
real life and is the product of interplay of different human
emotions. In arriving at the conclusion about the guilt of the
Page 42 of 62
accused charged with the commission of a crime, the court has to
judge the evidence by the yardstick of probabilities, its intrinsic
worth and the animus of witnesses. Every case in the final analysis
would have to depend upon its own facts. Although the benefit of
every reasonable doubt should be given to the accused, the courts
should not at the same time reject evidence which is ex facie
trustworthy on grounds which are fanciful or in the nature of
conjectures.’
The criminal trial cannot be equated with a mock scene from a
stunt film. The legal trial is conducted to ascertain the guilt or
innocence of the accused arraigned. In arriving at a conclusion
about the truth, the courts are required to adopt a rational
approach and judge the evidence by its intrinsic worth and the
animus of the witnesses. The hypertechnicalities or figment of
imagination should not be allowed to divest the court of its
responsibility of sifting and weighing the evidence to arrive at the
conclusion regarding the existence or otherwise of a particular
circumstance keeping in view the peculiar facts of each case, the
social position of the victim and the accused, the larger interests of
the society particularly the law and order problem and degrading
values of life inherent in the prevalent system. The realities of life
have to be kept in mind while appreciating the evidence for
arriving at the truth. The courts are not obliged to make efforts
either to give latitude to the prosecution or loosely construe the
law in favour of the accused. The traditional dogmatic
hypertechnical approach has to be replaced by a rational, realistic
and genuine approach for administering justice in a criminal trial.
Criminal jurisprudence cannot be considered to be a utopian
thought but have to be considered as part and parcel of the human
civilisation and the realities of life. The courts cannot ignore the
erosion in values of life which are a common feature of the present
system. Such erosions cannot be given a bonus in favour of those
who are guilty of polluting society and mankind.”
67. As regards the seizure of the weapons of crime, the
Investigating Officer (IO) Ram Kumar Vaishnav, (PW-15) testified
that at the instance of the Appellant No. 1 (Goverdhan), the small axe
was recovered and the Panchanama was prepared (Ex-P/3). Similarly,
one iron pipe was recovered at the instance of Appellant No.2,
Rajendra and the Panchanama (Ex-P/5) was prepared. Both the
seizures were witnessed by Shailu (PW-2) and Kanhaiya (PW-12).
Though the IO (PW-15) proved his signature and preparation of the
Page 43 of 62
aforesaid two seizure memos, both the witnesses turned hostile
claiming that they merely put their signatures at the instance of the
police and they put their signatures on blank forms.
What is important to note is that these two witnesses, however,
did admit putting their signatures on the seizure memos. What they
pleaded is that they did so at the instance/threat of the police and they
did not know what was written on these documents. They also stated
that the seizure was not preceded by any enquiry by the police from
the accused persons.
It is also to be noted that while both the witnesses, Shailu (PW-
2) and Kanhaiya (PW-11) were from the same village, Tilda where the
murder took place and both of them claimed that they had no
knowledge of this case, both of them admitted that they knew the
appellants. Shailu (PW-2) stated that he knew the appellants and they
resided at some distance from his house. In the cross-examination,
Shailu, PW-2 claims that he had no knowledge of the case.
Kanhaiya, PW-11, the other seizure witness, admits that the
seizure memo was prepared in his presence, and the police asked him
to put his signature on the same and admitted his signature, though he
also stated that no seizure was made from the Appellant Rajendra in
his presence. He also states that the police seized the small axe and
showed it to both the witnesses and police informed that the axe was
found in the house of the appellants.
In his cross-examination by the Prosecution after being
declared hostile, PW-11, admitted that he used to smoke ganja with the
appellants often and whenever he used to pass through the Teachers
Page 44 of 62
Colony, he used to stay with Chintaram, the acquitted accused and
father of the two appellants for smoking ganja and admitted being
familiar with Chintaram. He, however, denied the suggestion of the
Prosecution that he was not telling the truth as he was well acquainted
with Chintaram.
68. Thus, what emerges from the above is that both the seizure
witnesses have not denied their signatures on the seizure memo and
admitted putting their signatures. PW-11 even goes to the extent that
the police showed to them a small axe which the police said was
seized from the house of the appellants.
Though both the witnesses have denied having any
knowledge of the actual recovery of the weapons at the instance of the
appellants, their denials do not appear convincing. However, since the
IO of the case, PW-15 had proved the said seizure memos, we find no
reason to hold that there was no seizure that was affected merely
because the two seizure witnesses had turned hostile.
It may be noted that the axes were seized on the same day
of the incident on 23.0.2001 at 4:45 pm and these were blood stained
as recorded in Ex-P/6 and also mentioned by Dr. G.R. Agarwal, PW-1
while forwarding these items for chemical examination.
69. Even assuming that the seizure of the weapons was effected
without meticulously following the procedures and thus doubtful, in
the view of the medical evidence which clearly showed that the
deceased died because of the injuries caused by sharp weapon which
was seen by a direct eye witness, namely, Lata Bai (PW-10), in our
opinion, it would not prejudice the prosecution case. The doctor (PW-
Page 45 of 62
1) who examined the victim testified that he examined the weapons of
crime on 29.9.2001 which were brought to him by the police in a
sealed packet and he opined that the injuries no. (ii), (iii), (iv), (vi) and
(vii) may be caused by the sharp edge of an axe and injuries no. (i),
(vi), (viii) and (ix) may be caused by the iron pipe. There was no cross
examination of this witness PW-1 by the defence on this crucial
medical evidence. Thus, this medical opinion remained unshaken,
which supports the prosecution case and evidence of Lata Bai, PW-10.
70. It is now well settled that non recovery of the weapon of crime
is not fatal to the prosecution case and is not sine qua non for
conviction, if there are direct reliable witnesses as held in Rakesh v.
State of U.P., (2021) 7 SCC 188, wherein it was observed as follows:
“12. Now so far as the submission on behalf of the accused that as
per the ballistic report the bullet found does not match with the
firearm/gun recovered and therefore the use of gun as alleged is
doubtful and therefore benefit of doubt must be given to the
accused is concerned, the aforesaid cannot be accepted. At the
most, it can be said that the gun recovered by the police from the
accused may not have been used for killing and therefore the
recovery of the actual weapon used for killing can be ignored and
it is to be treated as if there is no recovery at all. For convicting an
accused recovery of the weapon used in commission of offence is
not a sine qua non. PW 1 and PW 2, as observed hereinabove, are
reliable and trustworthy eyewitnesses to the incident and they have
specifically stated that A-1 Rakesh fired from the gun and the
deceased sustained injury. The injury by the gun has been
established and proved from the medical evidence and the
deposition of Dr Santosh Kumar, PW 5. Injury 1 is by gunshot.
Therefore, it is not possible to reject the credible ocular evidence
of PW 1 and PW 2 — eyewitnesses who witnessed the shooting. It
has no bearing on credibility of deposition of PW 1 and PW 2 that
A-1 shot deceased with a gun, particularly as it is corroborated by
bullet in the body and also stands corroborated by the testimony of
PW 2 and PW 5. Therefore, merely because the ballistic report
shows that the bullet recovered does not match with the gun
recovered, it is not possible to reject the credible and reliable
deposition of PW 1 and PW 2.
(emphasis added)
Page 46 of 62
71. In this context one may also refer to the decision of this Court
in Karamjit Singh v. State (Delhi Admn.), (2003) 5 SCC 291 in which
it was observed that the testimony of the police personnel involved in
recovery of articles need not be disbelieved and testimony of police
personnel is to be treated similarly as testimony of any other witness.
It was held that,
“8. Shri Sinha, learned Senior Counsel for the appellant, has
vehemently urged that all the witnesses of recovery examined by
the prosecution are police personnel and in the absence of any
public witness, their testimony alone should not be held sufficient
for sustaining the conviction of the appellant. In our opinion the
contention raised is too broadly stated and cannot be accepted.
The testimony of police personnel should be treated in the same
manner as testimony of any other witness and there is no principle
of law that without corroboration by independent witnesses their
testimony cannot be relied upon. The presumption that a person
acts honestly applies as much in favour of a police personnel as of
other persons and it is not a proper judicial approach to distrust
and suspect them without good grounds. It will all depend upon
the facts and circumstances of each case and no principle of
general application can be laid down. ……………………..”
(emphasis added)
Thus, we do not find any reason to doubt the testimony of the
police/I.O. (PW-15).
72. It is to be noted that the plea of the defence is of total denial.
The appellants also claimed complete ignorance of the incident. They
have taken the plea that they were not in the village during the time of
the incident and had gone on 22.9.2001 to another place at Nayapara,
to attend the housewarming ceremony of one Champa Lal Sahu on
23.09.2001 and returned only in the evening of 23.09.2001. However,
the defence did not lead any evidence about the plea of alibi.
Page 47 of 62
The appellants also sought to put the blame of assault to Ramesh
Kumar Verma, PW-9 which miserably failed.
They also took the plea that the prosecution witnesses, more
particularly PW-10, were coerced by the police to falsely implicate the
accused in support of which the appellants had adduced two defence
witnesses. However, we find their evidence unconvincing as also held
by the High Court.
73. We have also noted the testimonies of other neighbours, which
we consider to be highly unnatural and untruthful and they appear to
be reluctant to come up with the truth in order to protect the
appellants.
Shyam Bai, PW-3, who was mentioned by PW-6, the
complainant and both the husband and wife, PW-5 and PW-10
(parents of the deceased) to have been present at the place of
occurrence feigned ignorance of the cause of the death of Suraj and
did not support her previous statement recorded under Section
161CrPC where she had named the appellants as the assailants. In the
cross -examination, she stated that when she came after bath, she saw
the mother and father of Suraj taking the injured in a rickshaw and
saw blood on the body, but she did not ask how the injured suffered
the injuries. It defies logic and appears to be contrary to human
instinct and nature that when a person sees a neighbour in a seriously
injured condition, no query is made about the injury. PW-3 obviously
is not telling the truth.
74. Same is the case with Ramesh Kumar Verma, PW-9, in front of
whose house the incident occurred and an immediate neighbour of the
Page 48 of 62
deceased. He was also named by both PW-5 and PW-10 to be present
at the place of occurrence and at the time of occurrence. However, he
categorically states that, he was having no knowledge of the incident
and that he had neither seen nor heard of what happened to the victim.
It is very strange and rather unbelievable that though he admitted
seeing blood spread over in the corner of his garden, he did not make
any query about it. He states that he read about the news of the death
of a boy in the newspaper and he came to know about the injuries
received by Suraj from the newspaper and that he did not have any
knowledge as to who had killed Suraj. He also admits that he drinks
liquor and that Chintaram used to drink liquor with him and had good
terms with Chintaram till date.
Interestingly, the appellants made unsubstantiated suggestion to
PW-10 that Verma (PW-9) and his family had in fact assaulted the
deceased.
The only inference we can draw is that the statement of PW-9 is
untrue, being highly unnatural and defying normal human instinct and
behaviour and he appears to have been influenced by Chintaram
because of his close acquaintance as a comrade in arms in drinking,
which relationship he admitted in the cross examination.
75. Because of the unnaturalness of the testimonies of these
neighbours before the court, which defy human behaviour, the
reasonable inference one can draw is that these witnesses have been
won over. The fact that all these witnesses had close association with
Chintaram on account of consumption of ganja also clearly indicates
Page 49 of 62
the influence Chintraram, the acquitted father of the present two
appellants may have on these witnesses.
76. However, it is also to be noted that merely because the
witnesses turn hostile does not necessarily mean that their evidence
has to be thrown out entirely and what is supportive of the prosecution
certainly be used. In Gangadhar Behera v. State of Orissa (2002) 8
SCC 381, it was observed as following:-
“15. To the same effect is the decision in State of Punjab v. Jagir
Singh [(1974) 3 SCC 277 : 1973 SCC (Cri) 886] and Lehna v.
State of Haryana [(2002) 3 SCC 76 : 2002 SCC (Cri) 526] . Stress
was laid by the appellant-accused on the non-acceptance of
evidence tendered by some witnesses to contend about desirability
to throw out the entire prosecution case. In essence prayer is to
apply the principle of falsus in uno, falsus in omnibus (false in one
thing, false in everything). This plea is clearly untenable. Even if a
major portion of the evidence is found to be deficient, in case
residue is sufficient to prove guilt of an accused, notwithstanding
acquittal of a number of other co-accused persons, his conviction
can be maintained. It is the duty of the court to separate the grain
from the chaff. Where chaff can be separated from the grain, it
would be open to the court to convict an accused notwithstanding
the fact that evidence has been found to be deficient to prove guilt
of other accused persons. Falsity of a particular material witness
or material particular would not ruin it from the beginning to end.
The maxim falsus in uno, falsus in omnibus has no application in
India and the witnesses cannot be branded as liars. The maxim
falsus in uno, falsus in omnibus has not received general
acceptance nor has this maxim come to occupy the status of the
rule of law. It is merely a rule of caution. All that it amounts to, is
that in such cases testimony may be disregarded, and not that it
must be disregarded. The doctrine merely involves the question of
weight of evidence which a court may apply in a given set of
circumstances, but it is not what may be called ‘a mandatory rule
of evidence’. (See Nisar Ali v. State of U.P. [AIR 1957 SC 366 :
1957 Cri LJ 550] ) Merely because some of the accused persons
have been acquitted, though evidence against all of them, so far as
direct testimony went, was the same does not lead as a necessaryPage 50 of 62
corollary that those who have been convicted must also be
acquitted. It is always open to a court to differentiate the accused
who had been acquitted from those who were convicted. (See
Gurcharan Singh v. State of Punjab [AIR 1956 SC 460 : 1956 Cri
LJ 827] .) The doctrine is a dangerous one especially in India for
if a whole body of the testimony were to be rejected, because a
witness was evidently speaking an untruth in some aspect, it is to
be feared that administration of criminal justice would come to a
dead stop. Witnesses just cannot help in giving embroidery to a
story, however, true in the main. Therefore, it has to be appraised
in each case as to what extent the evidence is worthy of
acceptance, and merely because in some respects the court
considers the same to be insufficient for placing reliance on the
testimony of a witness, it does not necessarily follow as a matter of
law that it must be disregarded in all respects as well. The
evidence has to be sifted with care. The aforesaid dictum is not a
sound rule for the reason that one hardly comes across a witness
whose evidence does not contain a grain of untruth or at any rate
exaggeration, embroideries or embellishment. (See Sohrab v. State
of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819] and Ugar Ahir
v. State of Bihar [AIR 1965 SC 277 : (1965) 1 Cri LJ 256] .) An
attempt has to be made to, as noted above, in terms of felicitous
metaphor, separate the grain from the chaff, truth from falsehood.
Where it is not feasible to separate the truth from falsehood,
because grain and chaff are inextricably mixed up, and in the
process of separation an absolutely new case has to be
reconstructed by divorcing essential details presented by the
prosecution completely from the context and the background
against which they are made, the only available course to be made
is to discard the evidence in toto. (See Zwinglee Ariel v. State of
M.P. [(1952) 2 SCC 560 : AIR 1954 SC 15 : 1954 Cri LJ 230] and
Balaka Singh v. State of Punjab [(1975) 4 SCC 511 : 1975 SCC
(Cri) 601] .) As observed by this Court in State of Rajasthan v.
Kalki [(1981) 2 SCC 752 : 1981 SCC (Cri) 593] normal
discrepancies in evidence are those which are due to normal
errors of observation, normal errors of memory due to lapse of
time, due to mental disposition such as shock and horror at the
time of occurrence and those are always there however honest and
truthful a witness may be. Material discrepancies are those which
are not normal, and not expected of a normal person. Courts have
to label the category to which a discrepancy may be categorised.
While normal discrepancies do not corrode the credibility of a
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party’s case, material discrepancies do so. These aspects were
highlighted recently in Krishna Mochi v. State of Bihar [(2002) 6
SCC 81 : 2002 SCC (Cri) 1220] . Accusations have been clearly
established against the appellant-accused in the case at hand. The
courts below have categorically indicated the distinguishing
features in evidence so far as the acquitted and the convicted
accused are concerned.”
77. To the same effect it was held in Raja v. State of Karnataka,
(2016) 10 SCC 506 as follows:
“32. That the evidence of a hostile witness in all eventualities
ought not stand effaced altogether and that the same can be
accepted to the extent found dependable on a careful scrutiny was
reiterated by this Court in Himanshu [Himanshu v. State (NCT of
Delhi), (2011) 2 SCC 36 : (2011) 1 SCC (Cri) 593] by drawing
sustenance of the proposition amongst others from Khujji v. State
of M.P. [Khujji v. State of M.P., (1991) 3 SCC 627 : 1991 SCC
(Cri) 916] and Koli Lakhmanbhai Chanabhai v. State of Gujarat
[Koli Lakhmanbhai Chanabhai v. State of Gujarat, (1999) 8 SCC
624 : 2000 SCC (Cri) 13] . It was announced that the evidence of
a hostile witness remains admissible and is open for a court to rely
on the dependable part thereof as found acceptable and duly
corroborated by other reliable evidence available on record.”
78. We are also mindful of the position of law that the prosecution
must stand or fall on its own legs and it cannot derive any strength
from the weakness of the defence. However, in the present case,
inspite of the untruthful and evasive testimony of the neighbours, the
prosecution has been able to prove its case beyond reasonable doubt
and the false plea of the appellants only strengthens the case of the
prosecution.
79. There is no compelling reason or such material on record on the
basis of which this Court should take the view that Lata Bai (PW-10),
did not really witness the assault of the victim by the appellants.
Merely because her statement under Section 161 CrPC was recorded
belatedly i.e. after five days which have been duly considered by the
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High Court and there are some inconsistencies and embellishments in
her testimony before the trial court, we are not persuaded to take the
view that PW-10 cannot be an eye-witness and her testimony not
credible.
PW-10 was subjected to intense and extensive cross-examination by
the defence, yet her testimony could not materially be shaken, except
for pointing out minor discrepancies.
No material contradiction between the statement made by her
before the court and the previous statement recorded under Section
161 CrPC could be shown by the defence under Section 162 (1) and
Explanation thereto as to render her testimony doubtful.
A careful perusal of the testimony of PW-10 shows that her
narration of the incident was natural, and trustworthy.
80. The appellants had also contended that the PW-10 was an
interested witness and her testimony may not be believable. In this
regard, it must be noted that PW-10, the mother of the deceased
though was related to the victim cannot by any stretch of imagination
be said to be an interested witness. As to who is an “interested
witness” and the “related witness” has been succinctly explained by
this Court in the case of Mohd. Rojali Ali Vs. The State of Assam,
(2019) 19 SCC 567, wherein it was held that:
“13. As regards the contention that all the eyewitnesses are close
relatives of the deceased, it is by now well-settled that a related
witness cannot be said to be an “interested” witness merely by
virtue of being a relative of the victim. This Court has elucidated
the difference between “interested” and “related” witnesses in a
plethora of cases, stating that a witness may be called interested
only when he or she derives some benefit from the result of a
litigation, which in the context of a criminal case would mean thatPage 53 of 62
the witness has a direct or indirect interest in seeing the accused
punished due to prior enmity or other reasons, and thus has a
motive to falsely implicate the accused (for instance, see State of
Rajasthan v. Kalki [State of Rajasthan v. Kalki, (1981) 2 SCC
752 : 1981 SCC (Cri) 593] ; Amit v. State of U.P. [Amit v. State of
U.P., (2012) 4 SCC 107 : (2012) 2 SCC (Cri) 590] ; and
Gangabhavani v. Rayapati Venkat Reddy [Gangabhavani v.
Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri)
182] ). Recently, this difference was reiterated in Ganapathiv.
State of T.N. [Ganapathi v. State of T.N., (2018) 5 SCC 549 :
(2018) 2 SCC (Cri) 793] , in the following terms, by referring to
the three-Judge Bench decision in State of Rajasthan v. Kalki
[State of Rajasthan v. Kalki, (1981) 2 SCC 752 : 1981 SCC (Cri)
593] : (Ganapathi case [Ganapathi v. State of T.N., (2018) 5 SCC
549 : (2018) 2 SCC (Cri) 793] , SCC p. 555, para 14)
“14. “Related” is not equivalent to “interested”. A witness may be
called “interested” only when he or she derives some benefit from
the result of a litigation; in the decree in a civil case, or in seeing
an accused person punished. A witness who is a natural one and is
the only possible eyewitness in the circumstances of a case cannot
be said to be “interested”.”
14. In criminal cases, it is often the case that the offence is
witnessed by a close relative of the victim, whose presence on the
scene of the offence would be natural. The evidence of such a
witness cannot automatically be discarded by labelling the witness
as interested. Indeed, one of the earliest statements with respect to
interested witnesses in criminal cases was made by this Court in
Dalip Singh v. State of Punjab [Dalip Singh v. State of Punjab,
(1953) 2 SCC 36 : 1954 SCR 145 : AIR 1953 SC 364 : 1953 Cri LJ
1465] , wherein this Court observed: (AIR p. 366, para 26)
“26. A witness is normally to be considered independent unless he
or she springs from sources which are likely to be tainted and that
usually means unless the witness has cause, such as enmity against
the accused, to wish to implicate him falsely. Ordinarily a close
relative would be the last to screen the real culprit and falsely
implicate an innocent person.”
15. In case of a related witness, the Court may not treat his or her
testimony as inherently tainted, and needs to ensure only that the
evidence is inherently reliable, probable, cogent and consistent.
We may refer to the observations of this Court in Jayabalan v.
State (UT of Pondicherry) [Jayabalan v. State (UT of
Pondicherry), (2010) 1 SCC 199 : (2010) 2 SCC (Cri) 966] : (SCC
p. 213, para 23)
“23. We are of the considered view that in cases where the court is
called upon to deal with the evidence of the interested witnesses,
the approach of the court, while appreciating the evidence of such
witnesses must not be pedantic. The court must be cautious in
appreciating and accepting the evidence given by the interested
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witnesses but the court must not be suspicious of such evidence.
The primary endeavour of the court must be to look for
consistency. The evidence of a witness cannot be ignored or
thrown out solely because it comes from the mouth of a person
who is closely related to the victim.”
81. As also observed by the High Court, we do not see any reason
why the mother of the victim should falsely implicate the appellants
without any rhyme or reason more so when apparently there was no
previous animosity of the mother Lata Bai with any of the appellants.
Lata Bai, PW-10 is certainly not an interested witness even though she
was related to the victim and her testimony cannot be impeached on
this ground.
82. We must also remember that, while recording the testimony of
Lata Bai PW-10, the trial court noted the demeanour of the witness.
Section 280 of the CrPC enjoins upon the Judge to record such
remarks as he thinks material respecting the demeanour of the witness
while under examination since the demeanour can provide insights
into the witness’s truthfulness and reliability, which are critical for the
court’s assessment of the evidence presented, which ought not be
ignored by the Appellate Court.
It was noted by the trial court in para 2 of her examination-in-chief,
that the witness was crying while deposing that there were several
injuries on her son’s body and that he sustained grievous injuries over
the right auricle and was bleeding. She stated that she then carried him
on her lap with the help of the police and took him to the hospital in a
rickshaw.
83. The trial court after recording the testimony of the PW-10 and
on consideration of the same found her evidence trustworthy and
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credible. We see no reason to question the assessment about the
credibility of the witness by the Trial Court which had the advantage
of seeing and hearing above the witness and all other witnesses.
Nothing has been brought to our notice of any serious illegality or
breach of fundamental law so as to warrant taking a different view of
the evidence of PW-10.
In this regard we may keep in mind the valuable observations
made by this Court in Jagdish Singh v. Madhuri Devi, (2008) 10
SCC 497 in the following words:
“28. At the same time, however, the appellate court is expected,
nay bound, to bear in mind a finding recorded by the trial court on
oral evidence. It should not forget that the trial court had an
advantage and opportunity of seeing the demeanour of witnesses
and, hence, the trial court’s conclusions should not normally be
disturbed. No doubt, the appellate court possesses the same
powers as that of the original court, but they have to be exercised
with proper care, caution and circumspection. When a finding of
fact has been recorded by the trial court mainly on appreciation of
oral evidence, it should not be lightly disturbed unless the
approach of the trial court in appraisal of evidence is erroneous,
contrary to well-established principles of law or unreasonable.
29. …………………………………..
30. In Sara Veeraswami v. Talluri Narayya [(1947-48) 75 IA 252 :
AIR 1949 PC 32] the Judicial Committee of the Privy Council,
after referring to relevant decisions on the point, stated [ Quoting
from Watt v. Thomas, (1947) 1 All ER 582, pp. 583 H-584 A.] : (IA
p. 255)
“… but if the evidence as a whole can reasonably be regarded as
justifying the conclusion arrived at at the trial, and especially if
that conclusion has been arrived at on conflicting testimony by a
tribunal which saw and heard the witnesses, the appellate court
will bear in mind that it has not enjoyed this opportunity and that
the view of the trial Judge as to where credibility lies is entitled to
great weight. This is not to say that the Judge of first instance can
be treated as infallible in determining which side is telling the
truth or is refraining from exaggeration. Like other tribunals, he
may go wrong on a question of fact, but it is a cogent circumstance
that a Judge of first instance, when estimating the value of verbal
testimony, has the advantage (which is denied to courts of appeal)Page 56 of 62
of having the witnesses before him and observing the manner in
which their evidence is given.”
84. In view of the above, we are of the opinion that even if there are
certain embellishments and improvements and contradictions which
are of minor nature, the evidence of PW-10 on the whole does appear
to be consistent and we do not see any cogent reason to disbelieve her
claim that she had witnessed the incident. Thus, we are of the opinion
that there appears to be no patent illegality in the view taken by the
trial court and the High Court.
85. We also hold that just because the Chintaram, father of the
Appellants was acquitted will not warrant their acquittal as there is
sufficient and cogent material evidence against them to prove the case
beyond reasonable doubt whereas the case against the acquitted
Chintaram is doubtful.
Since there is no appeal against the acquittal of the father, we
do not wish to go into the subsequent acquittal of Chintaram.
The High Court had noted that, on close scrutiny of the
evidence on record, there is no clinching evidence of the said
Chintaram taking part in the assault and his name does not figure in
the Ex-P/1 which was prepared soon after the incident by the police
for referring the injured to the Community Hospital, Tilda and also the
evidence of PW-10 that she did not mention his presence in the police
station while naming the appellants. We are of the opinion that the role
of Chintaram does not come out clearly as to fasten criminal liability
on him along with the appellants. Thus, the present two appellants
cannot be placed at par with the case of the acquitted accused,
Chintaram.
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86. As regards applicability of the case of State of Punjab vs.
Sucha Singh (supra) is concerned wherein this court found the
inaction of the father to come to the rescue of the victim son is
concerned, it is to be noted that, unlike in the said case, the evidence
which has emerged is that the father PW-5 came to the scene after the
assailants appellants had fled. Hence, the question of his intervening
does not arise. If the said case of Sucha Singh (supra) is to be
applicable as contended by the appellant, it would mean that the
father, PW-5 would have witnessed which goes against their own case.
As far as the mother PW-10 is concerned, on seeing the assault
she ran inside to wake up her husband and when they came out, the
assailants had fled. It cannot be considered to be highly unnatural for a
woman not rushing to intervene and instead seek the help of a male
member (her husband) when there were two persons with deadly
weapons assaulting her.
87. In conclusion, we are of the view that, the evidence of the sole
eye witness, a hapless rustic illiterate woman visited with the
vicissitude and tragedy of her son being fatally assaulted by co-
villagers before her own eyes, has withstood intensive cross
examination and judicial scrutiny. She has answered the questions put
to her during her cross examination with spontaneity without any
jitteriness and her response was natural and not elusive and
prevaricating, which all are signs of truthfulness of the witness. We,
therefore, have no hesitation to hold that her testimony is trustworthy
and reliable. Her evidence finds corroboration from the admissible
part of the evidence of the complainant, and her husband even though
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they had turned hostile, and the medical evidence, evidence of the
Investigating Officer and other official witnesses.
88. In the present case, we are satisfied that in the facts and
circumstances as evident from the records, the Prosecution has been
able to establish beyond reasonable doubt that the appellants were
responsible for the death of the deceased, Suraj for which they were
convicted by the trial court under Section 302 of the IPC.
89. We do not see any glaring illegality or perversity in the findings
arrived at the trial court and the High Court causing any grave
miscarriage of justice to the appellants.
90. However, in spite of our finding that the appellants had
assaulted the deceased with deadly weapons causing the death of the
deceased, we have noted that the death of the deceased was not
instantaneous. He survived the brutal attack for a few days and later
succumbed to his injuries. The deceased was assaulted in the morning
of 23.9.2001 and died on the night of 25.9.2001.
The doctor, Dr. G. R. Agarwal, PW-1, opined that the injuries
no. (i), (vi), (viii) and (ix) might be caused by the iron pipe and these
were not described as grievous. On the other hand, the other injuries
no. (ii), (iii), (iv), (v) and (vii) were described as grievous head
injuries which might be caused by the axe. The deceased later
succumbed because of the accumulated effect of these head injuries as
testified by PW-13, Dr. Arvind Neralwar who conducted the post
mortem examination of the body of the deceased. According to him
the cause of death was coma due to head injuries. If we closely
examine these injuries, it is seen that though the injuries on the head
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were identified as grievous, these are shown as skin deep injuries and
no particular injury was identified as being the fatal one. Since the
cause of death is attributed to coma because of the head injuries and it
was opined that the injuries are sufficient in ordinary course of nature
to cause death, it appears that it is the cumulative effect of these head
injuries.
What is also observable is that he did not succumb to the injuries
immediately and he died on the third day of the incident.
It is also noticeable that the circumstances under which the
assault took place and the reason for causing the injuries by the
appellants and the motive behind their assault has not come out
clearly. Even the sole eye witness, Lata Bai (PW-10), the mother of
the deceased testified that her son was having visiting terms with the
accused persons as they were residing in the same locality and she
cannot tell why the quarrel occurred suddenly. It has not been
established clearly that it was premeditated and the assault was
preplanned with the intention to kill the deceased. Any prior enmity
between the appellants and the deceased has not been established.
Thus, the motive for committing the crime has not been clearly
established and proved.
91. However, it is established beyond reasonable doubt that the
appellants had caused the death of the deceased fully knowing that the
bodily injuries caused by the appellants were likely to cause death as
the appellants were armed with deadly weapons, we are inclined to
convert the conviction of the appellants from Section 302 IPC to Part I
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of Section 304 IPC. Accordingly, we convict the appellants under Part
I of Section 304 IPC.
92. Having convicted the appellants under Part I of Section 304
IPC, the next consideration is the quantum of punishment that may be
imposed on them.
93. Under Part I of Section 304 IPC, w hoever commits
culpable homicide not amounting to murder shall be
punished with imprisonment for life, or imprisonment of
either description for a term which may extend to ten
years, and shall also be liable to fine, if the act by which the
death is caused is done with the intention of causing death,
or of causing such bodily injury as is likely to cause death.
As per the records, the appellants have already undergone 10
years 3 months of incarceration during the trial and pendency of the
appeals before the High Court and this Court.
This Court by an order dated 06.01.2012 had enlarged the
appellants on bail during the pendency of this appeal and the appeal
has remained pending before this Court since 2011.
94. Under the facts and circumstances discussed above, we are of
the view that interest of justice will be served if the appellants are
sentenced to the period already undergone by them and impose a fine
of Rs.50,000/- each on the appellants, which shall be paid to the
family of the deceased through his mother, namely Lata Bai (PW-10),
failing which the appellants will undergo additional 6 (six) months
simple imprisonment. In the event of the appellants paying the
amount, as ordered above, the bail bonds shall stand discharged. In the
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event of non-payment, the bail bonds shall stand discharged after
undergoing the default sentence.
95. For the reasons discussed above, the appeal is partly allowed as
above.
.…………………………J.
(B. R. GAVAI)
……………………………J.
(K.V. VISWANATHAN)
………………………………………………J.
(NONGMEIKAPAM KOTISWAR SINGH)
New Delhi:
January 09, 2025.
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