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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 339 of 2008
Rakesh & Another ...Appellants
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
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.
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
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
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
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
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.
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
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
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
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
`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
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
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
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
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
evidence." (See : Manju Ram Kalita v. State of Assam, (2009) 13
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
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,
(Dr. B.S. CHAUHAN)
September 19, 2011