Appeal
Appeal against the judgment confirmed conviction under section 302 r/w 34
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.
Power of Hon’ble Supreme Court in appeal against conviction
2. As the two appellants are seeking reversal of the concurrent findings by two courts, the Sessions Court and the High Court, this Court has to tread very cautiously as observed by this Court on 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.
Applying the aforesaid judgment
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.
Accused are from single family and they attacked the deceased out of altercation about ganja
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.
FIR was registered under section 307 IPC
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.
Deceased died in the hospital with nine injuries hence FIR altered to section 302 IPC
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:
“…………….”
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.
Two blood-stained axes and iron pipe were recovered from accused room
8. Based on the disclosure statement made by Goverdhan, Appellant No. 1 on the same day on 23.9.2001, two blood-stained axes 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.
Trial completed with two defence witnesses
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.
Trial Court convicted all the three accused under sections 302 r/w 34 IPC
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 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.
Hon’ble High Court acquitted third accused while confirmed the conviction of others
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.
Analysis by this court
Before assign the role of accused court must see the incident has been properly placed
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 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.
Section 3 IEA
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.
Analysis: Standard of proof in criminal cases
Standard of proof in criminal case is not proof beyond al doubts but only beyond reasonable doubt
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.
What is reasonable doubt? Explained
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:
“paras. 8,9,10”
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:
“para. 6”
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:
“para. 24”
Lord Denning’s view on reasonable doubt
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.
Plea is ignorance of death and alibi
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.
Revisiting the evidence for witnesses not supported prosecution except one
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.
PW6 resiled from his previous statement u/s 161 crpc
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.
If the complainant did not support the contents of FIR it can be treated as relevant circumstance if proved by prosecution
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 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.
FIR can be proved by the police who has signed it
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. P1, 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 (ExP/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.
Informant (PW.6) did not deny the filing of FIR
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 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.
How the informant resiled in the court from FIR?
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.
Why PW-6 declared hostile?
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.
How to appreciate hostile witness is being taught by the Hon’ble Supreme Court
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 PW6 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 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 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.
PW.10 as eye witness
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.
If PW.10 is credible and corroborated then the conviction is not illegal
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.
Lengthy cross-examination
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.
Important answers from cross-examination
47. The following aspects of the statement of the PW-10 during the cross-examination, deserve to be noticed.
(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.
(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.
Arguments based on the aforesaid cross-examination
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.
(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.
An eyewitness must be withing the range of visibility
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.
Critical examination of PW.10
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 (PW5) 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.
Question of fact: Whether the PW.10 could be witnessed the incident?
Therefore, the critical question is whether Lata Bai PW-10 saw the incident as claimed by her which has been questioned by the appellants.
Analysing minor discrepancies of eye-witness
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:
“ ………….. “
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:
“ ………….. “
53. To the same effect it was also observed in Appabhai v. State of Gujarat (1988) Supp SCC 241 as follows:
“ …….. “
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:
“ ………… “
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;
“ …………. “
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.
IO was not cross-examined on the delay of recording of statement of PW.10
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] )
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 has 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.
PW.10 was rushed to police station but only the police told her that they would go to the soc first
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.
Suggestion of defence that police told her to go to the soc first demolished the defence of delay in recording her s.161 crpc statement
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 the 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.
PW.5 admits in his cross that he used to consume Ganja and liquor with the accused
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:
“ (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. ………….”
PW.5 was won over
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.
Eye-witness PW.10 stands corroborated
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.
Accused names given by the victim to PW.1 (doctor) fill up the gap of FIR
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 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, PW6, 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.
Mahazar witnesses turned hostile
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.
Doctor opined that the examined weapons could have caused injuries to the deceased
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.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.
Non-recovery of weapon is not fatal if there is direct reliable witness
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:
“ ………… “
Recovery of article in the presence of police to be treated in the same manner of any other witness
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).
Defence did not lead any evidence about plea of alibi
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.
Evidentiary value of hostile witness
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:-
“ ……. “
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.
Who are interested and related witness explained
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:
“ ……. “
There is no reason why mother of the victim falsely implicate the appellants
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.
PW10 evidence is consistent, cogent and trustworthy
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.
Conclusion
Prosecution has established the crime beyond reasonable doubt that the appellants were responsible
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 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.
Conviction converted from section 302 IPC to part I of section 304 IPC
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 of Section 304 IPC. Accordingly, we convict the appellants under Part I of Section 304 IPC.
Quantum of punishment
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 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.
Judgments relied/cited
- Mekala Sivaiah v. State of Andhra Pradesh, (2022) 8 SCC 253
- State of U.P. v. Satish, (2005) 3 SCC 114
- State of Orissa v. Brahmananda Nanda, (1976) 4 SCC 288
- State of Punjab v. Sucha Singh, (2003) 3 SCC 153
- Ramakant Rai v. Madan Rai, (2003) 12 SCC 395
- State of Haryana v. Bhagirath (1999) 5 SCC 96
- Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793
- Bable v. State of Chhattisgarh, (2012) 11 SCC 181
- Leela Ram (Dead) through Duli Chand v. State of Haryana, (1999) 9 SCC 525
- Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217
- Appabhai v. State of Gujarat (1988) Supp SCC 241
- Prabhu Dayal v. State of Rajasthan, (2018) 8 SCC 127
- Rakesh v. State of U.P., (2021) 7 SCC 188
- Karamjit Singh v. State (Delhi Admn.), (2003) 5 SCC 291
- Gangadhar Behera v. State of Orissa (2002) 8 SCC 381
- Mohd. Rojali Ali Vs. The State of Assam, (2019) 19 SCC 567
Party
Goverdhan & Anr. vs State of Chhattisgarh – Criminal Appeal No. 116 of 2011 – 2025 INSC 47 – January 09, 2025 [ 3 judge bench]
Author’s note
A victim informed the crime (including cause of death and persons assaulted) to another person (say P.W.1) and subsequently died is a dying declaration as per section 32 IEA.
