NON-EXPLANATION OF INJURIES ON THE ACCUSED: 26. We will first consider the issue with regard to non-explanation of injuries sustained by accused No. 11 Naresh Kumar. In the case of Lakshmi Singh and Others v. State of Bihar [(1976) 4 SCC 394], which case also arose out of a conviction under Section 302 read with Section 149 of the IPC, this Court had an occasion to consider the issue of non-explanation of injuries sustained by the accused. This Court, after referring to the earlier judgments on the issue, observed thus:
“12. …….It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
“(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.”
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the court to rely on the evidence of PWs 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima [(1975) 2 SCC 7 : 1975 SCC (Cri) 384] there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises.”
27. A similar view with regard to non-explanation of injuries has been taken by this Court in the cases of State of Rajasthan v. Madho and Another [1991 Supp (2) SCC 396], State of M.P. v. Mishrilal (Dead) and Others [(2003) 9 SCC 426] and Nagarathinam and Others v. State (Represented by Inspector of Police) [(2006) 9 SCC 57].
28. Undisputedly, in the present case, the injuries sustained by accused No. 11 Naresh Kumar cannot be considered to be minor or superficial. The witnesses are also interested witnesses, inasmuch as they are close relatives of the deceased. That there was previous enmity between the two families, on account of election of Sarpanch, has come on record. As observed by this Court in the case of Ramashish Ray v. Jagdish Singh [(2005) 10 SCC 498], previous enmity is a double-edged sword. On one hand, it can provide motive and on the other hand, the possibility of false implication cannot be ruled out.
29. We have already seen herein above the injuries sustained by accused No. 11 Naresh Kumar. Much prior to lodging of the FIR at 03.15 AM on 4th November 2006 by Khomlal, the Police had taken accused No. 11 Naresh Kumar for medical examination. The memo forwarding accused No. 11 Naresh Kumar for medical examination to Medical Officer mentions that accused No. 11 had informed the police that at around 08.30 PM, he was assaulted by Atmaram (PW-1). Undisputedly, the prosecution has suppressed information with regard to the said incident. The prosecution has also suppressed the FIR lodged by Atmaram (PW-1). It is thus clear that the prosecution has attempted to suppress the real genesis of the incident. Taking into consideration this aspect of the matter, coupled with the non-explanation of the injuries sustained by accused No. 11 Naresh Kumar, we are of the considered view that accused No. 11 Naresh Kumar is entitled to benefit of doubt.
GROUP FIGHT – IMPACT OF DELAY IN LODGING FIR: 31. We may gainfully refer to the following observations of this Court in the case of Ramesh Baburao Devaskar and Others v. State of Maharashtra [(2007) 13 SCC 501]:
“19. In a case of this nature, enmity between two groups is accepted. In a situation of this nature, whether the first information report was ante-timed or not also requires serious consideration. First information report, in a case of this nature, provides for a valuable piece of evidence although it may not be a substantial evidence. The reason for insisting on lodging of first information report without undue delay is to obtain the earlier information in regard to the circumstances in which the crime had been committed, the name of the accused, the parts played by them, the weapons which had been used as also the names of eyewitnesses. Where the parties are at loggerheads and there had been instances which resulted in death of one or the other, lodging of a first information report is always considered to be vital.”
As held by this Court, the FIR is a valuable piece of evidence, although it may not be substantial evidence. The immediate lodging of an FIR removes suspicion with regard to over implication of number of persons, particularly when the case involved a fight between two groups. When the parties are at loggerheads, the immediate lodging of the FIR provides credence to the prosecution case.
GROUP FIGHT – INTERESTED WITNESSES: 32. Undisputedly, the present case rests on the evidence of interested witnesses. No doubt that two of them are injured witnesses. This Court, in the case of Vadivelu Thevar v. The State of Madras [1957] SCR 981], has observed thus:
“11. ……Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial……”
33. It could thus be seen that in the category of “wholly reliable” witness, there is no difficulty for the prosecution to press for conviction on the basis of the testimony of such a witness. In case of “wholly unreliable” witness, again, there is no difficulty, inasmuch as no conviction could be made on the basis of oral testimony provided by a “wholly unreliable” witness. The real difficulty comes in case of the third category of evidence which is partly reliable and partly unreliable. In such cases, the court is required to be circumspect and separate the chaff from the grain, and seek further corroboration from reliable testimony, direct or circumstantial.
34. Undisputedly, in the present case, PWs 2 and 9 are injured witnesses. As such, their presence cannot be disputed. However, as already observed hereinabove, in case of proven previous enmity, a possibility of false implication cannot be ruled out. In the present case, it would be seen that the entire family of accused No. 12 Paltan Jangde has been roped in. Though PW-2 has identified and named the accused in her cross-examination, she has stated that, though she recognized the relatives of the accused persons, she does not remember their names. As such, the possibility of implicating the entire family of Paltan cannot be ruled out.
35. As already discussed hereinabove, the names of Nand Lal, Bhagwat and Ramdular are not mentionedJ in the merg report, which was lodged prior to the lodging of FIR, so also their names are not found in the inquest panchnama and spot panchnama. Taking into consideration the delay in lodging the FIR, with the circumstance of their names not being mentioned in the contemporaneous documents, the possibility of the said accused being falsely implicated cannot be ruled out. In our view, the conviction of these accused purely on the basis of oral testimony of the interested witnesses, without sufficient corroboration, would not be sustainable.
PARTY: NAND LAL AND OTHERS vs. THE STATE OF CHHATTISGARH – CRIMINAL APPEAL NO. 1421 OF 2015 – MARCH 14, 2023 [3 Judge Bench].
URL: https://main.sci.gov.in/supremecourt/2015/12799/12799_2015_8_1501_42665_Judgement_14-Mar-2023.pdf
Files : Nand-lal-and-others-vs.-The-state-of-chhattisgarh—non-explaation-of-injuries.pdf
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