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murder case convicted = `interested witness’ as: “A close relative who is a natural witness cannot be regarded as an interested witness. The term 9 `interested’ postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some animus or for some other reason.” =time of death- as the physical condition of a body after death depends upon various factors i.e. age, geographical and climatic conditions of the place of occurrence etc. = value of medical evidence – the ocular evidence would have primacy unless it is established that oral evidence is totally irreconcilable with the medical evidence. = witness pshychology- “The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.”

Balancing Rock at Jabalpur, Madhya Pradesh, India

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 REPORTABLE




 IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION


 CRIMINAL APPEAL NO. 339 of 2008





Rakesh & Another ...Appellants


 Versus




State of Madhya Pradesh ...Respondent





 J U D G M E N T




Dr. B.S. CHAUHAN, J.




1. This criminal appeal has been preferred against the judgment and 


order dated 15.12.2006 passed by the High Court of Judicature at 


Jabalpur in Criminal Appeal Nos. 518 and 890 of 1997. 




2. Facts as explained by the prosecution have been that:


A. On 5.3.1996, on the day of `Holi' at around 11.30 a.m., one 


Kailash @ Killu was assaulted by the appellants alongwith another 


accused in front of the house of one Rama Tailor. Anil (PW.11), 


nephew of the deceased, who had been following Kailash (deceased), 


raised an alarm and the assailants were caught at the spot. Various 


persons gathered at the place of occurrence but the assailants managed 


to flee. The injured Kailash was taken to the hospital but succumbed to 


his injuries. In view of the above, an FIR was lodged under Section 


302 of Indian Penal Code, 1860 (hereinafter called as `IPC') and 


Section 25 of the Arms Act, 1959, within one hour of the incident at 


12.30 p.m., wherein both the appellants and other accused were named. 


In the FIR it was also stated that two policemen, namely, Ramdas 


Havaldar and Pannalal Sainik came at the scene and got the accused 


persons released from the mob and, thus, they succeeded in running 


away. 




B. Dr. R.K. Singhvi (PW.8), conducted the post-mortem on the 


body of the deceased on the same day. In his opinion, there were three 


incised wounds found on his body, one on the neck, one on the chest 


and another in the abdomen. All the injuries had been caused by sharp 


edged weapons and Kailash had died within three to six hours prior to 


conducting the post-mortem examination. 





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C. During the course of investigation, the appellants were arrested 


and the weapons used in the offence were recovered on their disclosure 


statements. After concluding the investigation, chargesheet was filed. 




D. The case was committed for Sessions trial. The prosecution 


examined a large number of witnesses in support of its case. One Halle 


(DW.1) was examined in defence and after conclusion of the trial, all 


the three accused were convicted for the offence punishable under 


Section 302 IPC vide judgment and order dated 21.2.1997 and were 


awarded sentence of rigorous imprisonment for life and a fine of Rs. 


2,000/- each, in default thereof, to serve further sentence of one year. 




E. Being aggrieved, all the three accused/convicts preferred two 


appeals i.e. Criminal Appeal Nos. 518 & 890 of 1997 before the High 


Court of Judicature at Jabalpur, which were decided by judgment and 


order dated 10.2.2005 in absence of their counsel. 




F. Being aggrieved, the present two appellants preferred criminal 


appeals before this Court i.e. Criminal Appeal Nos. 1463-64 of 2005 


which were allowed vide judgment and order dated 20.7.2006 and this 


Court after setting aside the judgment and order dated 10.2.2005 of the 





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High Court of Judicature at Jabalpur, remanded the appeals to be heard 


by the High Court afresh. 




G. In pursuance of the said judgment and order of this Court dated 


20.7.2006, the appeals have been heard afresh and dismissed vide 


judgment and order dated 15.12.2006 by the High Court. 


 Hence, this appeal. 




3. Before proceeding with the case on merit, it may be pertinent to 


mention here that so far as the case of the appellant Rakesh is 


concerned, he had already served the sentence of more than 14 years 


and has been granted premature release by the State. Appellant Rajesh 


has served about 7 -1/2 years and is still in jail. The third person 


Dinesh did not prefer any appeal so we are not concerned with him so 


far as this appeal is concerned. 




4. Shri Siddharth Aggarwal, learned counsel appearing for the 


appellants, has submitted that the Trial Court had placed very heavy 


reliance upon the alleged eye-witnesses Khemchand (PW.10) and Anil 


(PW.11) who, in fact, could not be the eye-witnesses at all. The 


deposition of other witnesses examined by the prosecution, falsify the 


prosecution's case in entirety. There have been material inconsistencies 




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in the depositions of Khemchand (PW.10) and Anil (PW.11), and their 


entire evidence has to be discredited. The High Court after considering 


the circumstances, did not find the evidence of Khemchand (PW.10) 


trustworthy, however, failed to appreciate that the evidence of Anil 


(PW.11) was also liable to be treated similarly. The ocular evidence is 


contradictory to the medical evidence as the incident had occurred at 


11.30 a.m., FIR had been lodged at 12.30 p.m. The post-mortem 


examination was conducted at 1.00 p.m. on the same day i.e. 5.3.1996. 


The Doctor opined that Kailash @ Killu had died within 3 to 6 hours 


before the post-mortem examination. Anil (PW.11) relied upon by the 


High Court, is closely related to the deceased Kailash @ Killu and 


none of the independent witnesses examined by the prosecution 


supported its case to the extent that Anil (PW.11) could be present on 


the place of occurrence at the relevant time. Thus, the appeal deserves 


to be allowed. 




5. Per contra, Ms. Vibha Dutta Makhija, learned counsel appearing 


for the State, has vehemently opposed the appeal contending that there 


is no rule of law prohibiting reliance upon the evidence of the close 


relatives of the victims, however, such evidence has to be carefully 


scrutinised. The medical evidence may not be conclusive regarding the 




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time of death as the physical condition of a body after death depends 


upon various factors i.e. age, geographical and climatic conditions of 


the place of occurrence etc. The facts and circumstances of the case do 


not warrant interference with the concurrent findings of the facts 


recorded by the courts below. The appeal lacks merit and is liable to be 


dismissed. 




6. We have considered the rival submissions made by the learned 


counsel for the parties and perused the record. 




7. According to the prosecution case, Rakesh hit on the right side of 


the neck with knife, Rajesh on the right portion of the chest by gupti 


and Dinesh hit by `Katarna' (Axe having long wooden handle of 42 


inches) on the right portion of the stomach of Kailash @ Killu, 


deceased. This evidence stands duly supported by the medical 


evidence as Dr. R.K. Singhvi (PW.8), on conducting the post-mortem 


examination found the following injuries on his person: 


 i) Incised wound on the right portion of right clerical bone of 


 1.5x2x5 cms with regular edges. Faciea muscle, blood vessel lungs 


 was torn, blood was deposited in the chest. 





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 ii) Incised wound on the right chest on third inter-coster space 


 of 5 cm x 1.5 cm x 5 cm. Faciea muscle and blood vessels had 


 been cut. 


 iii) Incised wound in the right chest on ninth intercoster space of 


 4 cms x 2 cm x 4 cms. 



 In the opinion of Doctor Singhvi, all the injuries appeared 


to have been caused within 3 to 6 hours by sharp edged weapons prior 


to the post-mortem examination. 




8. All the weapons used in the crime had been recovered in the 


disclosure statements made by the appellants and other accused. In the 


opinion of Dr. R.K. Singhvi (PW.8), injuries nos.1, 2 and 3 could be 


caused by the weapons used in the offence. The question does arise as 


to whether there is inconsistency/contradiction in the medical and 


ocular evidence. The evidence on record clearly reveal that injuries 


had been caused to Kailash @ Killu, deceased, on his neck, chest and 


right portion of the stomach. 




9. It is a settled legal proposition that the ocular evidence would 


have primacy unless it is established that oral evidence is totally 


irreconcilable with the medical evidence. More so, the ocular 


testimony of a witness has a greater evidentiary value vis-a`-vis 





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medical evidence, when medical evidence makes the ocular testimony 


improbable, that becomes a relevant factor in the process of the 


evaluation of evidence. However, where the medical evidence goes so 


far that it completely rules out all possibility of the ocular evidence if 


proved, the ocular evidence may be disbelieved. (Vide: State of U.P. 


v. Hari Chand, (2009) 13 SCC 542; Abdul Sayeed v. State of 


Madhya Pradesh, (2010) 10 SCC 259; and Bhajan Singh @ 


Harbhajan Singh & Ors. v. State of Haryana, (2011) 7 SCC 421).




10. So far as the opinion of the doctor that death had occurred within 


3 to 6 hours prior to post-mortem examination, does not mean that Dr. 


R.K. Singhvi (PW.8) was able to fix any exact time of death. The issue 


raised by the learned counsel for the appellants is no more res integra. 


 In Mangu Khan & Ors. v. State of Rajasthan, AIR 2005 


SC 1912, this Court examined a similar issue wherein the post-mortem 


report mentioned that the death had occurred within 24 hours prior to 


post-mortem examination. In that case, such an opinion did not match 


with the prosecution case. This Court examined the issue elaborately 


and held that physical condition of the body after death would depend 


on a large number of circumstances/factors and nothing can be said 


with certainty. In determining the issue, various factors such as age 




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and health condition of the deceased, climatic and atmospheric 


conditions of the place of occurrence and the conditions under which 


the body is preserved, are required to be considered. There has been no 


cross-examination of the doctor on the issue as to elicit any of the 


material fact on which a possible argument could be based in this 


regard. The acceptable ocular evidence cannot be dislodged on such 


hypothetical basis for which no proper grounds were made. 




11. In Baso Prasad & Ors. v. State of Bihar, AIR 2007 SC 1019, 


while considering a similar issue, this Court held that exact time of 


death cannot be established scientifically and precisely. 


 Halle (DW.1), examined by the appellants in their defence, 


deposed that incident occurred at 11.00 a.m. which is consistent with 


the prosecution case. Thus, in view of the above, the submission so 


advanced by the learned counsel for the appellants, is not tenable and 


thus, does not tilt the balance in favour of the appellants. The 


argument does not require any further consideration. 




12. This Court in Kartik Malhar v. State of Bihar,(1996) 1 SCC 


614, defined `interested witness' as: 


 "A close relative who is a natural witness cannot 

 be regarded as an interested witness. The term 




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 `interested' postulates that the witness must have 

 some direct interest in having the accused 

 somehow or the other convicted for some animus 

 or for some other reason."

             


13. Evidence of related witness can be relied upon provided it is 


trustworthy. Mere relationship does not disqualify a witness. 


Witnesses who are related to the victim are as competent to depose the 


facts as any other witness. Such evidence is required to be carefully 


scrutinised and appreciated before reaching to a conclusion on the 


conviction of the accused in a given case. (See: Himanshu @ Chintu 


v. State (NCT of Delhi), (2011) 2 SCC 36; and Bhajan Singh @ 


Harbhajan Singh & Ors. (supra).




14. Anil (PW.11), undoubtedly, has been closely related to the 


victim being his nephew. His evidence requires a very careful and 


close scrutiny in the light of the aforesaid settled legal propositions. 




15. The main thrust of the argument of the learned counsel for the 


appellants has been that the statements of Khemchand (PW.10) and 


Anil (PW.11) have been mutually destructive, thus both are liable to be 


discarded altogether. The High Court has disbelieved Khemchand 


(PW.10) to the extent that he was present at the time of incident and 





 1


thus, could not be an eye-witness. Deposition of Anil (PW.11) clearly 


reveals that incident occurred at 10.30 a.m. in front of the house of 


Rama Tailor and the appellants alongwith Dinesh caused injuries to 


Kailash (deceased) with weapons such as knife, gupti and `katarna' on 


the neck, chest and stomach. At the time of incident, Anil (PW.11) had 


been at a short distance from the victim. Ishwar Nayak (PW.6), 


Dharmendra (PW.12) and other persons had also gathered there. He 


also deposed about the motive that Rakesh, accused, wanted utensils 


from Kailash (deceased), who refused to oblige the accused. Rakesh, 


accused had threatened Kailash to face dire consequences. In cross-


examination, he has admitted that at the time of the incident, Ishwar 


Nayak (PW.6), Dharmendra (PW.12) and Pradeep Pathak (PW.15) etc., 


were with him. He denied that he reached the place of occurrence on 


being informed by Halle (DW.1) and further denied the suggestion that 


he had not seen the quarrel between the accused persons and the 


deceased. He gave a full account of the overt acts of the accused while 


causing injuries to Kailash. His evidence has to be examined taking 


into consideration that the site plan prepared by the Patwari make it 


clear that the incident occurred on a main road and the victim as well 


as Anil (PW.11) were on the same road. There was no obstruction in 





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 between, thus Anil (PW.11) could clearly view the incident. Though, 


 there has been some dispute regarding the distance between the two, 


 but taking into consideration the fact that the accused had been very 


 well known to the witness being resident of the same village, the 


 distance becomes immaterial for the reason that the witness could 


 recognize him even from that distance. The other eye-witnesses, 


 particularly, Ishwar Nayak (PW.6), Dharmendra (PW.12) and Pradeep 


 Pathak (PW.15) did not support the case of the prosecution 


 appropriately. Dharmendra (PW.12) stood declared hostile. Deposition 


 of Ishwar Nayak (PW.6) has corroborated the case of the prosecution 


 to the extent that Anil (PW.11) was at the place of occurrence earlier 


 to him. In cross-examination, he deposed as under:


 "Half the boys ran towards the spot of incident 

 immediately. Amongst them was Anil also. I did 

 not go with Anil."




16. In view of the above, it is evident that incident occurred at 11.30 a.m. 



 Kailash, injured was taken to the hospital where he was examined by 


 the doctor and declared dead. Anil (PW.11) went from hospital to 


 police station and lodged the FIR at 12.30 p.m. wherein all the three 


 accused were specifically named. The distance of the police station 


 from the place of occurrence had been only 1 k.m. The overt acts of 




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 the accused had been mentioned. The motive was also disclosed. It 


 is improbable that the appellants had been enroped falsely as 


 promptness in lodging the FIR shows that there was no time for 


 manipulation. Prompt and early reporting of the occurrence by the 


 informant with all its vivid details gives an assurance regarding truth 


 of its version. Allegations may not be an after-thought or having a 


 colourable version of the incidents. (See: Kishan Singh (dead) thr. 


 Lrs. v. Gurpal Singh & Ors., AIR 2010 SC 3624). 




 It does not appeal to reasons as to why the witness would falsely 


enrope the appellants and other accused in such a heinous crime and 


spare the real culprits to go scot-free. In the FIR, Anil (PW.11) has 


disclosed that his father Khemchand (PW.10), Ishwar Nayak (PW.6) and 


Dharmendra (PW.12) reached the place of occurrence at a later stage. 


As the parties were known to each other being the residents of the same 


village, the identity etc. was not in dispute. 




17. The Trial Court had appreciated the evidence on record, and 


reached the conclusion to the effect that Anil (PW.11) was a trustworthy 


witness and had been an eye-witness of the incident. He had faced 


grilling cross-examination. However, no discrepancy or error could be 





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shown in spite of the fact that he was nephew of Kailash (deceased). On 


careful scrutiny of his deposition, his statement was found trustworthy. 




 The court further held that even if the other witnesses on the spot 


 had not supported the prosecution case, Anil (PW.11) was a natural 


 witness and had seen the incident. The other circumstances 


 particularly, the statements of B.M. Dubey, Investigating Officer 


 (PW.21) and Balram (PW.9), the arrest of accused, recovery of 


 weapons on their disclosure statements proved the prosecution case. 


 The depositions of B.M. Dubey (PW.21) had been natural. There was 


 no proof that the I.O. (PW.21) had any animosity or any kind of 


 interest and closeness to the deceased. Therefore, the question of not 


 believing the statement of B.M. Dubey, I.O. (PW.21) does not arise. 


 The High Court in spite of the fact of dis-believing Khemchand 


 (PW.10), found the prosecution case wholly proved on the sole 


 testimony of Anil (PW.11). 




 18. There are concurrent findings of fact by the two courts below. 


 Unless the findings so recorded are found to be perverse, this Court 


 should not generally interfere. This "Court cannot embark upon 


 fruitless task of determining the issues by re-appreciating the 





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evidence." (See : Manju Ram Kalita v. State of Assam, (2009) 13 


SCC 330).


          

19. Even if there are minor discrepancies between the narrations of 


witnesses when they speak on details, unless such contradictions are of 


material dimensions, the same should not be used to discard the 


evidence in its entirety. The trivial discrepancy ought not to obliterate 


the otherwise acceptable evidence.




20. In Leela Ram (Dead) thr. Duli Chand v. State of Haryana & 


Anr., (1999) 9 SCC 525, this Court observed as under:



 "The Court shall have to bear in mind that 

 different witnesses react differently under 

 different situations: whereas some become 

 speechless, some start wailing while some others 

 run away from the scene and yet there are some 

 who may come forward with courage, conviction 

 and belief that the wrong should be remedied. As 

 a matter of fact it depends upon individuals and 

 individuals. There cannot be any set pattern or 

 uniform rule of human reaction and to discard a 

 piece of evidence on the ground of his reaction 

 not falling within a set pattern is unproductive 

 and a pedantic exercise."


                      

21. In view of the above, we reach the inescapable conclusion that 


the courts below reached the correct conclusion in accepting the 





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prosecution case. Anil (PW.11) is a natural witness and his testimony 


inspired confidence and is, thus, worth acceptance. 




 The facts and circumstances of the instant case do not warrant 


any interference by this Court. Appeal lacks merit and is, accordingly, 


dismissed. 


 ..............................

...J.

 (P. SATHASIVAM)




 ..............................

...J.

 (Dr. B.S. CHAUHAN)

New Delhi,

September 19, 2011





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