Bharat Singh vs State Of M.P. on 18 April, 2022

[Cites 42, Cited by 11]

Madhya Pradesh High Court

Bharat Singh vs State Of M.P. on 18 April, 2022

20.1. In Gopalsingh, the Court found that the dying declaration did not contain complete names and addresses of the persons charged with the offence and it was found that conviction could not be based on such dying declaration alone without corroboration. Essentially, for the infirmity carried by such dying declaration, this Court 22 Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011) found lesser justification for the High Court's interference with the order of acquittal while observing as under: (SCC p. 272, para 8) "8. But even if we assume that the High Court was right in concluding that the dying declaration established the identity of the appellants, it was certainly not of that character as would warrant its acceptance without corroboration. It is settled law that a court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful. On the other hand if on account of an infirmity, it cannot be held to be entirely reliable, corroboration would be required."

20.2. In Dalip Singh, the alleged dying declaration turned out to be doubtful for it contained such facts which could not have been in the knowledge of the deceased and hence, this Court found it unsafe to rely on the same while observing as under: (SCC p. 335, para 9) "9. ... The dying declaration seems to be otherwise truthful but for the fact that it could not be within the knowledge or vision of Teja Singh that Jetha Singh was murdered by the appellants. His saying so in the dying declaration makes his statement a bit doubtful. It is, therefore, safe to leave out of consideration this dying declaration."

20.3. In Thurukanni Pompiah, this Court held that while a truthful and reliable dying declaration may form the sole basis of conviction, even without corroboration but the Court must be satisfied about its truthfulness and reliability; and if the Court finds that the declaration is not wholly reliable and a material portion of the deceased's version of the occurrence is untrue, the Court may, in the circumstances of a given case, may consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration. This Court observed, inter alia, as under: (AIR p. 941, para 9) "9. Under clause (1) of Section 32 of the Evidence Act, 1872, a statement made by a person who is dead, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death is a relevant fact in cases in which the cause of that person's death comes into question, and such a statement is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. The dying declaration of Eranna is, therefore, relevant and material evidence in the case. A 23 Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011) truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated. But the Court must be satisfied that the declaration is truthful. The reliability of the declaration should be subjected to a close scrutiny, considering that it was made in the absence of the accused who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration." 20.4. In Uka Ram, this Court again emphasised on the requirement that the Court should be satisfied about trustworthiness of the dying declaration, its voluntary nature and fitness of the mind of the deceased and it was held that: (SCC p. 257, para 6) "6. ... Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence."

20.4.1. In the said case of Uka Ram, however, the Court found that the deceased was a mental patient and there existed a doubt about mental condition of the deceased at the time of making the dying declaration. In the given circumstances, this Court found that to be a fit case to extend the benefit of doubt to the accused.

21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:

21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court.

21.2. The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

21.4. When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the statement, the 24 Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011) medical opinion cannot prevail.

21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement. 21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.

21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

* * * * 25.2. Another emphasis laid on behalf of the appellants is on the fact that the victim Sher Singh had suffered 100% burns and he was already in critical condition and further to that, his condition was regularly deteriorating. It is, therefore, contended that in such a critical and deteriorating condition, he could not have made proper, coherent and intelligible statement. The submissions do not make out a case for interference. As laid down in Vijay Pal case and reiterated in Bhagwan case, the extent of burn injuries --

going beyond 92% and even to 100% -- would not, by itself, lead to a conclusion that victim of such burn injuries may not be in a position to make the statement. Irrespective of the extent and gravity of burn injuries, when the doctor had certified him to be in fit state of mind to make the statement; and the person recording the statement was also satisfied about his fitness for making such statement; and when there does not appear any inherent or apparent defect, in our view, the dying declaration cannot be discarded. 25.3. Contra to what has been argued on behalf of the appellants, we are of the view that the juristic theory regarding acceptability of statement made by a person who is at the point of death has its fundamentals in the recognition that at the terminal point of life, every motive to falsehood is removed or silenced. To a fire victim like that of present case, the gravity of injuries is an obvious indicator towards the diminishing hope of life in the victim; and on the accepted principles, acceleration of diminishing of hope of life could only obliterate the likelihood of 25 Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011) falsehood or improper motive. Of course, it may not lead to the principle that gravity of injury would itself lead to trustworthiness of the dying declaration. As noticed, there could still be some inherent defect for which a statement, even if recorded as dying declaration, cannot be relied upon without corroboration. Suffice would be to observe to present purpose that merely for 100% burn injuries, it cannot be said that the victim was incapable to make a statement which could be acted upon as dying declaration. 25.4. The suggestions have also been made that the victim was in 100% burnt condition and therefore, the alleged statements Exts. PW-8/A and PW-16/B are manipulated and manufactured. We find nothing of substance in such suggestions for there had not been shown any reason for which PW 8 Dr Sushma and PW 16 SI Rajesh Kumar would manufacture any such document. Interestingly, certain suggestions were made to PW 19 Inspector Om Prakash in his cross-examination about his previous exchange of hot words or altercation with the accused persons. However, there was no such suggestion to PW 16 or to PW 8. For the same reason, the doubts sought to be suggested about availability of thumb impression of the victim on the statement Ext. PW-16/B deserve to be rejected. In Dal Singh, this Court has pointed out that in the case of burns, the skin of a small part of the body like thumb may remain intact; and it is essentially a question of fact as to whether skin of thumb had also been burnt completely. In this regard, it is also noticeable that even when the victim was carrying 100% deep burns, as per the post-mortem report, peeling off of skin was noticed on dorsum of hands and therefore, taking of thumb impression on Ext. PW-16/B is not ruled out. The concurrent findings of the trial court and the High Court in accepting the thumb impression on Ext. PW-16/B do not appear calling for any interference. It gets, perforce, reiterated that there appears no reason for PW 16 to go to the extent of manufacturing the document with a false thumb impression.

21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.

59. As per Modi's Medical Jurisprudence, 1 st degree burn mark is also known as epidermal burn. First Degree burns consists of eythema 26 Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011) or simple redness of the skin caused by the momentary application of flame or hot solids, or liquids much below boiling point. It can also be produced by mild irritants. The erythema marked with superficial inflammation usually disappear in few hours, but may last for several days, when the upper layer of the skin peels off but leaves no scars.

They disappear after death due to the gravitation of blood to the dependent parts. Second degree burns comprise acute inflammation and blisters produced by prolonged application of a flame, liquids at boiling point or solids much above the boiling point of water. The third and fourth degree burns are also known as Dermo-Epidermal burns. The third degree burn refers to the destruction of the cuticle and part of the true skin which appears horny and dark, owing to it having been charred and shrivelled. Exposure of nerve endings gives rise to much pain. Whereas in Fourth degree burn, the whole skin is destroyed. The fifth and sixth degree burns are also known as Deep burns. Fifth degree burn includes penetration of the deep fascia and implications of the muscles, and results in great scarring and deformity whereas sixth degree burn involves charring of the whole limb including the bones and ends in inflammation of the subjacent tissues and organs, if death is not the immediate result. Thus, it is clear that it is not the extent of superficial burn which effects the state of mind of the patient, but it is the degree of burn which effects the state of mind of the patient. Thus, merely because the patient had 27 Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011) suffered 100% burns would not mean that he/she was reduced to ashes.

60. It is next contended by the Counsel for the Appellants that Dr. B.S. Jamhoriya (P.W.9) has admitted that Tahsil Office is situated about one furlong, therefore, he should have insisted for recording of Dying Declaration by an Executive Magistrate, instead of recording himself.

61. The submission made by the Counsel for the Appellant is misconceived and is liable to be rejected.

62. Doctor is an uninterested and unbiased person. Further, the father-in-law of the injured Meena had brought her to the Hospital.

The family members of the deceased reached after the death of Meena. Thus, the injured Meena was in the company of her in-laws in the hospital. The injured Meena got burnt in her matrimonial house. Thus, there was no question or possibility of tutoring also.

Doctor is the best person to tell about the mental fitness of the patient.

Further more, when the Doctor is of a view that the physical condition of the patient is deteriorating drastically, then it is always expected of him, that instead of wasting any time by waiting for an Executive Magistrate to record the Dying Declaration, he should record the Dying Declaration on his own. The Supreme Court in the case of Abdul Majid Abdul Rahman v. State of Gujarat, reported in (1976) 4 SCC 351 has held as under :

Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011)

12. The High Court found, and we think rightly, that this reasoning was wholly puerile. There was absolutely no basis for doubting the integrity and veracity of Dr Shah. We have examined the statement of Dr Shah. We are in entire agreement with the High Court, that Dr Shah's statement discloses "a picture of straightforwardness and forthrightness". There is absolutely nothing in that statement which could raise a suspicion that the deponent was biased in favour of the prosecution or ill-disposed towards the accused. The doctor was the best person to opine about the fitness of the deceased to make the statement, he did. The doctor found that life was ebbing fast in the patient. There was no time to call the police or a magistrate. In such a situation, the doctor was justified --

indeed, he was dutybound -- to record the dying declaration of the deceased. He was a disinterested, respectable witness. The trial Judge was therefore wholly unjustified in rejecting the evidence of the Medical Officer.

63. A similar view has been expressed by Supreme Court in the case of Ramesh (Supra).

64. Further, in the case of Laxman Vs. State of Maharashtra, reported in (2002) 6 SCC 710, the Supreme Court has held as under :

5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P. (at SCC p.

701, para 8) to the effect that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration"

has been too broadly stated and is not the correct 29 Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011) enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P. must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat.

65. Further, only a box which was given the shape of Chimani with 25 gms of Kerosene and burnt cloths of the injured/deceased were found on the spot. It is clear from the Spot Map, Ex. P. 16 that no Chulah or semi cooked food was found on the spot. Further more, if a person gets burnt accidentally, then her entire body would not get smeared with Kerosene Oil. As per the Post-mortem report, Ex. P.15, smell of Kerosene Oil was present on the body. Thus, it is clear that even the circumstances indicate, that there was no kitchen and no Chulah on the spot. No semi cooked food was found on the spot.

Therefore, the Dying Declaration, Ex. P.13 inspires confidence, and accordingly, it is held that the Dying Declaration, Ex. P.13 has been duly proved by the prosecution beyond reasonable doubt.

66. It is well established principle of law that if dying declaration is found to be reliable and trustworthy, then the same can be sole basis for conviction.

67. The Supreme Court in the case of Jagbir Singh Vs. State (NCT of Delhi) reported in (2019) 8 SCC 779 has held as under :

Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011)

31. A survey of the decisions would show that the principles can be culled out as follows:

31.1.(i) Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court;

31.2.(ii) If there is nothing suspicious about the declaration, no corroboration may be necessary;

31.3.(iii) No doubt, the court must be satisfied that there is no tutoring or prompting;

31.4.(iv) The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirety of the language of the dying declaration; 31.5.(v) Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established; 31.6.(vi) However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconcilable.

31.7.(vii) In such cases, where the inconsistencies go to some matter of detail or description but are incriminatory in nature as far as the accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable;

31.8*.(viii) The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In one dying declaration, the accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two.

31.9.ix) In the third scenario, what is the duty of the 31 Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011) court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon?

68. The Supreme Court in the case of Vikas Vs. State of Maharashtra reported in (2008) 2 SCC 516 has held as under :

31. The principle underlying admissibility of dying declaration is reflected in the well-known legal maxim:

nemo moriturus praesumitur mentire i.e. a man will not meet his Maker with a lie in his mouth. A dying man is face to face with his Maker without any motive for telling a lie.

32. "Truth" said Mathew Arnold, "sits upon the lips of a dying man".

33. Shakespeare, great writer of the sixteenth century, through one of his characters explained the basic philosophy thus:

"Have I not hideous death within my view, Retaining but a quantity of life, Which bleeds away, even as a form of wax, Resolveth from his figure, against the fire? What in the world should make me now deceive, Since I must lose the use of all deceit?

Why should I then be false, since it is true That I must die here and live hence by truth?"

(King John, Act V, Scene IV*)

34. The great poet also said at another place:

"Where words are scarce, They are seldom spent in vain; They breathe the truth, That breathe their words in pain."

(Richard II)

35. Clause (1) of Section 32 of the Act has been enacted by the legislature advisedly as a matter of necessity as an exception to the general rule that "hearsay evidence" is "no evidence" and the evidence which cannot be tested by cross- examination of a witness is not admissible in a court of law. But the purpose of cross-examination is to test the veracity 32 Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011) of the statement made by a witness.

36. The requirement of administering oath and cross- examination of a maker of a statement can be dispensed with considering the situation in which such statement is made, namely, at a time when the person making the statement is almost dying. A man on the deathbed will not tell lies. It has been said that when a person is facing imminent death, when even a shadow of continuing in this world is practically over, every motive of falsehood is vanished. The mind is changed (sic charged) by most powerful ethical and moral considerations to speak truth and truth only. Great solemnity and sanctity, therefore, is attached to the words of a dying man. A person on the verge of permanent departure from his earthly world is not likely to indulge into falsehood or to concoct a case against an innocent person, because he is answerable to his Maker for his act. Moreover, if the dying declaration is excluded from admissibility of evidence, it may result in miscarriage of justice inasmuch as in a given case, the victim may be the only eyewitness of a serious crime. Exclusion of his statement will leave the court with no evidence whatsoever and a culprit may go unpunished causing miscarriage of justice.

69. The Supreme Court in the case of Muthu Kutty Vs. State reported in (2005) 9 SCC 113 has held as under :

15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination.

The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying 33 Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011) declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat: (SCC pp. 480-81, paras 18-19)

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.)

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav4 and Ramawati Devi v. State of Bihar.)

(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor.)

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.)

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.)

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.)

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu.)

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar.)

(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.)

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v.

Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011) Madan Mohan.)

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)

16. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P., Goverdhan Raoji Ghyare v. State of Maharashtra, Meesala Ramakrishan v. State of A.P. and State of Rajasthan v. Kishore.)

17. There is no material to show that the dying declaration was result or product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily. It is trustworthy and has credibility.

70. Considering the totality of the facts and circumstances of the case coupled with the fact that the appellant Bali Singh, absconded from the spot, this Court is of the considered opinion, that the Dying Declaration, Ex. P.13, can be the sole basis for conviction of Bali Singh for offence under Section 302 of IPC.

Whether the injured/deceased Meena was subjected to harassment on account of non-fulfillment of demand of Motor Cycle.

71. This Court has already considered the evidence of prosecution witnesses, who have specifically stated that the Appellants were 35 Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011) harassing and treating the deceased with Cruelty on account of non-

fulfillment of demand of Motor Cycle. Daulat Singh (P.W.2) has specifically stated that demand of motor cycle was made by the Appellant Bharat Singh himself.

72. It is submitted that there are omissions and contradictions in the evidence of the witnesses. This Court has already considered the omissions in the evidence of the witnesses. This Court has also noticed that the allegations of demand of motor cycle were made in the Police Statements. There is every possibility of embellishments in the evidence of the witnesses. This, before considering the reliability and credibility of the witnesses, must consider as to whether the omissions and contradictions are of major in nature or minor in nature. Minor omissions and contradictions would not effect the credibility of a witness. The Supreme Court in the case of Brahm Swaroop v. State of U.P., reported in (2011) 6 SCC 288 has held as under :

32. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the court to reject the evidence in its entirety. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." Difference in some minor details, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is 36 Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011) sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses. (See State of U.P. v. M.K. Anthony, State of Rajasthan v. Om Prakash, State v. Saravanan and Prithu v. State of H.P.)

73. It is submitted by the Counsel for the Appellants that since, no charge under Section 498-A of IPC was framed, therefore, they should not have been convicted for the said offence.

74. Heard the learned Counsel for the Appellant.

75. The submission made by the Counsel for the Appellants is no more res integra. The Supreme Court in the case of Arun Garg v.

State of Punjab, reported in (2004) 8 SCC 251 has held as under :

29. Our attention was also drawn to Section 498-A. In our view, Sections 304-B and 498-A are not mutually exclusive. They deal with different and distinct offences. In both the sections, "cruelty" is a common element. Under Section 498-A, however, cruelty by itself amounts to an offence and is punishable. Under Section 304-B, it is the dowry death that is punishable and such death must have occurred within seven years of the marriage. No such period is mentioned in Section 498-A. Moreover, a person charged and acquitted under Section 304-B can be convicted under Section 498-A without a specific charge being there, if such a case is made out.

76. The Supreme Court in the case of Kaliyaperumal v. State of T.N., reported n (2004) 9 SCC 157 has held as under :

7. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, of the woman is required to be established in order to bring home the application of Section 498-A IPC. Cruelty has 37 Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011) been defined in the Explanation for the purpose of Section 498-A. Substantive Section 498-A IPC and presumptive Section 113-B of the Evidence Act have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304-

B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of "cruelty". In Section 304-B there is no such explanation about the meaning of "cruelty". But having regard to the common background to these offences, it has to be taken that the meaning of "cruelty" or "harassment" is the same as prescribed in the Explanation to Section 498-A under which "cruelty" by itself amounts to an offence. Under Section 304-B it is "dowry death" that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. A person charged and acquitted under Section 304-B can be convicted under Section 498-A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder v. State of A.P.) Section 498-A IPC and Section 113-B (sic 113-A) of the Evidence Act include in their amplitude past events of cruelty.

77. Accordingly, the conviction of the Appellants for offence under Section 498-A of IPC also doesnot call for any interference.

78. Thus, the conviction of the Appellant Bharat Singh for offence under Section 498-A of IPC and conviction of Appellant Bali Singh for offence under Section 302,498-A of IPC is hereby Upheld.

79. The Trial Court has awarded Life Imprisonment for offence under Section 302 of IPC and R.I. for two years for offence under Section 498-A of IPC. The sentence awarded by the Trial Court doesnot call for any interference.

80. Ex-Consequenti, the Judgment and Sentence dated 31-3-2011 38 Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011) Bali Singh @ Ballu Vs. State of M.P. (Cr.A. No. 342/2011) passed by 2nd Additional Sessions Judge, Ashok Nagar, in S.T. No. 179/2009 is hereby Affirmed.

81. The Appellant Bali Singh is in jail. He shall undergo the remaining Jail Sentence.

82. The Appellant Bharat Singh is on bail. His bail bonds are cancelled. He is directed to immediately surrender before the Trial Court, latest by 5th of May 2022 for undergoing the remaining jail sentence.

83. Let a copy of this judgment be immediately provided to the Appellants, free of cost.

84. The Record of the Trial Court be immediately sent back along with copy of this Judgment for necessary information and compliance.

85. The Cr.A. No.s 317/2011 and 342/2011 fail and they are hereby Dismissed.





(G.S. Ahluwalia)                                          (Rajeev Kumar Shrivastava)
          Judge                                                               Judge
                            ARUN KUMAR MISHRA
                            2022.04.19 11:00:30 +05'30'

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Madhya Pradesh High Court